Devonshire v Magellan Powertronics Pty Ltd & Ors
[2013] FMCA 207
•11 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEVONSHIRE v MAGELLAN POWERTRONICS PTY LTD & ORS | [2013] FMCA 207 |
| INDUSTRIAL LAW – General protections application – termination – alleged adverse action – whether dismissal because of workplace right – whether temporary absence from work because of illness or injury. PRACTICE AND PROCEDURE – Application for a decision on a separate question – principles governing consideration of separate question. PRACTICE AND PROCEDURE – Removal of parties – accessorial liability – principles. WORDS AND PHRASES – “Workplace right” – “is able to”. |
| Acts Interpretation Act 1901 (Cth), s.15AB Competition and Consumer Act 2010 (Cth), s.151BW Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), s.694.55 Corporations Act 2001 (Cth), s.79 Fair Work Act 2009 (Cth), ss.12, 323, 340, 341, 342, 352, 369, 371, 550, 772(1)(e) Fair Work Regulations 2009 (Cth), reg.3.01 Federal Court Rules, O.29 Federal Court Rules 2011 (Cth), r.30.01 Federal Magistrates Act, 1999 (Cth), ss.3, 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 11.04, 17.01, 17.02, 17.03 Paid Parental Leave Act 2010 (Cth), s.145 Trade Practices Act 1974 (Cth), ss.52, 75B, 82, 87 Workplace Relations Act 1996 (Cth), s.659(2)(e) |
| Australian Competition and Consumer Commission v Black on White Pty Ltd & Ors (2001) 110 FCR 1; [2001] FCA 187 Fair Work Ombudsman v Proplas Industries Pty Ltd & AnorandFair Work Ombudsman v Blacklight Investments Pty Ltd & Anor [2011] FMCA 506 Giorgianni v The Queen (1985) 156 CLR 473 Hodkinson v Commonwealth (2011) 207 IR 129; [2011] FMCA 171 |
| Fair Work Bill 2008 (Cth), Explanatory Memorandum, 1370 The Shorter Oxford Dictionary on Historical Principles (3rd Edn) (Oxford: Clarendon Press, 1973) |
| Applicant: | MELINDA DEVONSHIRE |
| First Respondent: | MAGELLAN POWERTRONICS PTY LTD |
| Second Respondent: | MASOUD ABSHAR |
| Third Respondent: | JOLLEH ABSHAR |
| File Number: | PEG 59 of 2012 |
| Judgment of: | Lucev FM |
| Hearing date: | 19 June and 14 August 2012 |
| Date of Last Submission: | 14 August 2012 |
| Delivered at: | Perth |
| Delivered on: | 11 April 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr D Howlett |
| Solicitors for the Respondents: | Hewett & Lovitt |
DECLARATIONS AND ORDERS
THE COURT DECLARES THAT:
Pursuant to the Court’s orders of 19 June 2012 that under Rule 17.02 of the Federal Magistrates Court Rules 2001 (Cth) there be a decision by the Court on the following questions:
(a)whether the applicant has a workplace right or rights within the meaning of s.341 of the FW Act;
(b)whether the Court has jurisdiction to hear the applicant’s case alleging contravention of s.352 of the FW Act; and
(c)whether the second and third respondents should be removed as parties.
That the answers to the questions raised are as follows:
(a)question 1 – yes;
(b)question 2 – yes;
(c)question 3 – no.
AND THE COURT ORDERS THAT:
The application in a case filed by the respondents on 27 April 2012 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 59 of 2012
| MELINDA DEVONSHIRE |
Applicant
And
| MAGELLAN POWERTRONICS PTY LTD |
First Respondent
| MASOUD ABSHAR |
Second Respondent
| JOLLEH ABSHAR |
Third Respondent
REASONS FOR JUDGMENT
Application
The applicant, Melinda Devonshire (“Ms Devonshire”), has made an application (“Application”) in the Court’s Fair Work Division alleging a termination by the first respondent, Magellan Powertronics Pty Ltd (“Magellan Powertronics”), of her employment in contravention of ss.340 and 352 of the Fair Work Act 2009 (Cth) (“FW Act”). Together with the Application Ms Devonshire filed a “Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (“Claim Form”).
The respondents filed an application is a case on 27 April 2012, and subsequently, rather than having the application is a case determined, sought to have the Court make a decision on three questions relating to whether or not the applicant has a workplace right or rights, whether the Court has jurisdiction, and whether the second and third respondents should be removed as parties. Those questions are set out in more detail below: see para.44 below.
In a Substituted Response filed on 24 May 2012 the respondents, including the second and third respondents, Masoud Abshar and Jolleh Abshar:
a)oppose the making of any orders with respect to the application and say that the application ought to be dismissed; and
b)put forth the following grounds of opposition:
i)the workplace right or rights identified by Ms Devonshire are not a workplace right or rights;
ii)Ms Devonshire had no ability to make a complaint or inquiry;
iii)Ms Devonshire had not made a complaint;
iv)Ms Devonshire had not made an inquiry and could not do so;
v)the alleged entitlements that Ms Devonshire seeks under her contract of employment are not workplace rights;
vi)deny that Ms Devonshire had a workplace right, had exercised a workplace right or had proposed to exercise a workplace right;
vii)alternatively, if Ms Devonshire had made one or more complaints or inquiries and if, by so doing, or otherwise, she had a workplace right or workplace rights or had exercised a workplace right or rights or had proposed to exercise a workplace right or rights, Ms Devonshire’s employment was not terminated for any of those reasons;
viii)Ms Devonshire’s employment was terminated for reasons including the reasons given by Magellan Powertronics and Jolleh Abshar on 27 January 2012;
ix)deny taking adverse action against the applicant contrary to s.340 of the FW Act;
x)that there is no jurisdiction, pursuant to s.371 of the FW Act, to hear the dispute relating to s.352 of the FW Act because that dispute was not part of the application to Fair Work Australia (“FWA”), and FWA has not issued a certificate under s.369 of the FW Act in relation to that dispute;
xi)at the time of termination Ms Devonshire was not temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009 (Cth) (“FW Regulations”);
xii)deny that Magellan Powertronics terminated Ms Devonshire’s employment contrary to s.352 of the FW Act;
xiii)do not admit that Ms Devonshire has suffered or could have, or would have, suffered the loss stated in her “Details of Compensation Sought”; and
xiv)Ms Devonshire’s employment was subject to a period of three months probation. The duration of employment at the time of Ms Devonshire’s employment being terminated was less than three months. Even if Ms Devonshire’s employment had not been terminated on 27 January 2012 it would have come to an end by agreement on 21 February 2012 or, alternatively, could have been lawfully terminated on 21 February 2012.
Reply
In a Reply also filed on 24 May 2012 Ms Devonshire asserts that:
a)adverse action was taken against her because she had a workplace right, and the claim is grounded in s.340 of the FW Act;
b)by terminating her employment Magellan Powertronics took adverse action against her within the meaning of s.342 of the FW Act;
c)she had a workplace right under s.341 of the FW Act to be paid her entitlements under her contract of employment;
d)Magellan Powertronics contravened s.352 of the FW Act by dismissing her from employment when she was temporarily absent from work because of illness or injury of a kind prescribed by the FW Regulations;
e)she had a workplace right to make an inquiry or complaint relating to the underpayment of her entitlements, which she made clear to Magellan Powertronics she would enforce as of right;
f)she had a right to inquire when her entitlements would be paid and a right to sick leave; and
g)the query with respect to correct entitlements was one of the reasons why she was terminated, particularly when viewed against the background that:
i)there had been no complaint about her employment;
ii)she was offered a new position with Magellan Powertronics two days prior to the termination of her employment; and
iii)prior to termination of her employment, there was no indication that Magellan Powertronics was unhappy with her sales performance, or any discussion concerning her performance in any capacity whatsoever.
Much of the Reply is more submission than Reply proper, and has been considered by the Court as being both a Reply, and where appropriate, submission.
The evidence for the respondent
In his 23 April 2012 affidavit Masoud Abshar says as follows:
1.I am the sole Director and Company Secretary of Magellan Powertronics Pty Ltd (“Magellan”).
2.I make this Affidavit in support of an application to removal [sic] me as Second Respondent in the Applicant’s application and an application to dismiss the part of the application alleging contravention of section 352 of the Fair Work Act 2009.
3.Magellan was, at all relevant times, the sole employer of the Applicant.
4.I was the sole Director and Company Secretary of Magellan at all times during the Applicant’s employment with Magellan.
5.In my capacity as the sole Director and Company Secretary of Magellan I was involved in communications with the Applicant about her employment including limited communications with her about the terms and conditions of her employment.
6.In my capacity as the sole Director and Company Secretary of Magellan I was involved in the termination of the employment of the Applicant. On 27 January 2012 I instructed the General Manager to terminate the Applicant’s employment.
7.I did not have any involvement with the Applicant, make any decision or take any action relating to her, in any capacity other than as the sole Director and Company Secretary of Magellan.
8.To the best of my knowledge and belief, the first time that Magellan received either the original or a copy of a medical certificate relating to the Applicant’s absence from work after 11.06 a.m. on 27 January 2012 was at 12.08 pm, on 24 February 2012 as an attachment to an email sent by the Applicant to the Second and Third Respondents.
Masoud Abshar’s 23 May 2012 Affidavit is identical to his 23 April 2012 Affidavit from paragraphs 1 to 7. Paragraphs 8 to 10 then provide as follows:
8.On Tuesday 31 January 2012 at 4.57 p.m I received an e-mail from Penelope Pain of Fair Work Australia (“FWA e-mail”). I annex a copy of the FWA e-mail marked “Annexure 1”.
9.The FWA e-mail stated that I had “received the attached documentation in order to notify you of the lodgement of a General Protections Dispute application”.
10.The FWA e-mail contained 4 attachments being:
a.A letter dated 31 January 2010 addressed to me and Jolleh Abshar. I annex a copy of that letter marked “Annexure 2”
b.A Fair Work Australia document titled “Guide General Protections” published on 15 September 2011. I annex a copy of that FWA Guide marked “Annexure 3”
c.A PDF document of Fair Work Australia Form F8 containing 7 pages. The Form F8 identified the Applicant as Melinda Devonshire. I annex a copy of the 7 pages of Form F8 marked “Annexure 4”
d.A blank 2 page “word” document titled “Form F8A Employer’s Response to Application for FWA to Deal with a General Protections Dispute”. I annex a copy of the 2 pages of Form F8A marked “Annexure 5”
Paragraph 11 of Masoud Abshar’s 23 May 2012 Affidavit is identical to paragraph 8 of his 23 April 2012 Affidavit, save that it annexes a copy of the relevant email as Annexure 6 to his 23 May 2012 Affidavit.
Annexure 4 to Masoud Abshar’s 23 May 2012 Affidavit is a copy of an “Application for FWA to Deal with a General Protections Dispute”. This is Ms Devonshire’s application to FWA to deal with the dispute arising from the termination of her employment (“the FWA Application”). The content of the FWA Application is set out in more detail below.
Annexure 6 to the 23 May 2012 affidavit of Masoud Abshar is a doctor’s certificate sent to Masoud Abshar and Jolleh Abshar by Ms Devonshire on 24 February 2012. It was sent by email indicating that a copy of Ms Devonshire’s doctor’s certificate for 27 January 2012 was attached. There is attached a doctor’s certificate which appears to indicate that Ms Devonshire was medically unfit for one day, being 27 January 2012.
In his affidavit of 23 April 2012 Jolleh Abshar says as follows:
1.I am an employee of Magellan Powertronics Pty Ltd (“Magellan”).
2.I am employed as General Manager of Magellan.
3.I make this Affidavit in support of an application to remove me as Third Respondent in the Applicant’s application and an application to dismiss the part of the application alleging contravention of section 352 of the Fair Work Act 2009.
4.Magellan was, at all material times, the sole employer of the Applicant.
5.I was General Manager of Magellan at all times during the Applicant’s employment with Magellan.
6.In my capacity as General Manager of Magellan, I was involved in communications with the Applicant about her employment including limited communications with her about the terms and conditions of her employment.
7.In my capacity as General Manager of Magellan, on 27 January 2012 I terminated the employment of the Applicant on the instructions of Magellan’s Director.
8.I did not have any involvement with the Applicant, make any decision or take any action relating to her, in any capacity other than as General Manager of Magellan.
9.To the best of my knowledge and belief, the first time that Magellan received either the original or a copy of a medical certificate relating to the Applicant’s absence from work after 11.06am on 27 January 2012 was at 12.08pm, on 24 February 2012 as an attachment to an email sent by the Applicant to the Second and Third Respondents.
The evidence of Ms Devonshire
The FWA Application
In the FWA Application Ms Devonshire alleges a contravention of s.340 of the FW Act on the basis that she was a person who “has a workplace right”: FW Act, s.340(1)(a)(i), and describes the events in relation to the alleged contravention as follows:
a)it was agreed that she be employed as Business Development Manager at Magellan Powertronics on a salary package of:
i)$67,000 annual base salary;
ii)$14,000 car allowance per year;
iii)a mobile phone allowance of $140 per month; and
iv)a 2% commission on all goods sold through her employment;
b)Ms Devonshire requested a written contract on a number of occasions, including prior to commencing work, in the first week of work, and in the second week during an induction with Jolleh Abshar;
c)on 1 December 2011 Ms Devonshire sent an email to Mark Williams, who was Magellan Powertronics’ National Sales Manager, indicating that she had been paid incorrectly, and followed this up with an email on 15 December 2011 indicating that she was still not being paid correctly. The error was that her salary was noted on her payslip as $65,000 per annum, but was in “the system” as $67,000 per annum;
d)Ms Devonshire says that she sent at least four more emails before going on annual leave on Christmas Day concerning payment of:
i)her salary; and
ii)car allowance, which she indicated needed to be paid because she was out of pocket, and she needed to be reimbursed so as to cover costs;
e)when she returned to work on 16 January 2012 she had still not received her correct salary, car allowance or mobile phone allowance, and sent emails asking for this to be rectified, and says that she was told that the matter would be rectified;
f)Ms Devonshire says that she sent an email to payroll on 27 January 2012 and that this email was sent to Jolleh Abshar, who told Ms Devonshire that Masoud Abshar wanted to see her regarding pay;
g)Ms Devonshire went to see Masoud Abshar who said she was not worth the money, and that if she did not wear the company polo tee-shirt he would sack her, so she agreed to wear that if that was his request, and that he then stated that he was not happy to pay her the correct salary;
h)Ms Devonshire says that Masoud Abshar said that he was not happy with the fact that Ms Devonshire had gone on holiday over the Christmas break, although she says that he knew this was her plan before she started in the position, and confirmed it in writing before she took the position with the company. Masoud Abshar said he was not happy with this, saying that he worked on Saturdays and Sundays and that the salary that she was on was a very similar salary to his and that she should be working 80 plus hours a week like him; and
i)she was terminated on 27 January 2012 after she left work for home feeling unwell, and that she went to the doctor and has a doctor’s certificate for that day.
Ms Devonshire then asserts, and it is reflected in an email sent to Mark Williams, shortly after she was terminated, that:
The only reason I was dismissed is because Masoud and Jolleh Abshar didn’t want to pay me my correct and outstanding Salary. I was terminated because I asked to be paid correctly.
There is then set out a series of emails concerning her termination and salary package including the following email sent to Jolleh Abshar on 28 January 2012, which includes the following extract:
I left yesterday as I was not feeling very well, I spoke to George and asked him who the correct person to see regarding me going home sick, you were not available and I did attempt to see Masoud however I could not find him or yourself. I sent you an email informing you of this and you did respond, hoping that I would feel better soon. I have evidence that I went to the doctors and I have a doctor’s certificate.
The above matters are set out at Part 2.2 of the FWA Application.
The Claim Form
In the Claim Form at pages 4-8 Ms Devonshire alleges with respect to payment that:
a)she made an inquiry to Jolleh Abshar during her induction process in the second week of her employment asking for her employment contract and salary package to be given to her in writing as she had not received it;
b)she discussed her salary package with Jolleh Abshar who wrote the salary package on a notepad and told Ms Devonshire that she would get her employment contract organised;
c)after her initial inquiry she received a telephone call on 1 December 2011from the National Sales Manager, Mr Williams, saying that he was with Jolleh Abshar and that her salary package would be amended and the extra payment would be paid to her in the next pay week;
d)on 27 January 2012 Ms Devonshire directly asked Jolleh Abshar to have the payments made and corrected as she was getting different stories as to when she would be paid;
e)after this inquiry the matter was sent to Masoud Abshar, and she was asked to a meeting to discuss payment and salary package at approximately 9.30am on 27 January 2012, and she again asked when she would receive her correct salary package;
f)during what was described as a “final meeting” with Masoud Abshar concerning her salary package payments that were outstanding Ms Devonshire made the following inquiries:
i)when her correct salary was to be paid, corrected and amended for her fortnightly wages;
ii)when her car allowance would be paid and corrected;
iii)what date she should expect to receive her allowance;
iv)when her superannuation entitlements would be corrected; and
v)when her mobile telephone allowance would be paid and corrected;
g)the day that Ms Devonshire asked Masoud Abshar to be paid was the day that her employment with Magellan Powertronics was terminated, approximately six hours after she had made the inquiry concerning her payment, to which Masoud Abshar had responded:
i)that he was not happy to pay Ms Devonshire her correct salary;
ii)that he was not happy that Ms Devonshire had taken holiday leave;
iii)that he did not think that Ms Devonshire was worth the amount of salary claimed;
iv)that during the next following week Ms Devonshire’s salary package needed to be reviewed and changed;
v)that Ms Devonshire needed to work the same hours as him for the salary she was being paid, which is more than 80 hours per week;
vi)that he could not give Ms Devonshire a date when she would be paid her outstanding monies; and
vii)that the correct salary would be paid but he did not know when it would be paid; and
h)Jolleh Abshar never gave the applicant a copy of an employment contract.
In the Claim Form at pages 8-9 Ms Devonshire alleges in relation to her illness that following her meeting with Masoud Abshar on 27 January 2012:
i)she went downstairs to find Jolleh Abshar to inform her that she was not well and would be going to see the doctor;
ii)that she could not find Jolleh Abshar, but that she asked the other General Manager for Magellan Powertronics who she should see regarding her being unwell and her wanting to go to see the doctor;
iii)she was advised by the other General Manager that Jolleh Abshar had left the building and to go and see Masoud Abshar;
iv)she was unable to locate Masoud Abshar;
v)she sent an email to both Masoud Abshar and Jolleh Abshar stating that she was unwell, the terms of which are as follows:
Hi Jolleh and Masoud,
I am not feeling very well. I have left to go to the doctors.
If you need to talk to me you can get me on my mobile.
Kind regards
Melinda.
Claim Form, Document L.
vi)Ms Devonshire received a reply as follows from Jolleh Abshar, cc’d to Masoud Abshar, and said to be sent from Jolleh Abshar’s I-phone:
Hi Mel, No problem – please bring a doctor’s certificate as it’s policy to provide one the day after a public holiday.
Hope you feel better soon.
Claim Form, Document K.
On the same day, 27 January 2012, at 4.03pm Jolleh Abshar sent to Ms Devonshire an email in the following terms, copied to Masoud Abshar and Mark Williams:
Subject: Contract Termination
Dear Melinda,
Following your discussion with Masoud today, the fact you left the office following this, your refusal to wear the company uniform, and your lack of sales to date we have decided to end your employment with Magellan, as you are still within the 3 month probation.
There is no need to return to Magellan, if you have any personal items still here please let me know and we will have them couriered to you.
You will be paid any outstanding amounts owed to you next pay.
Regards,
Jolleh Abshar
General Manager
Claim Form, Document N.
Throughout the period until her termination Ms Devonshire claims to have had various meetings and discussions with Mark Williams, the National Sales Manager, concerning her salary package.
Ms Devonshire obtained a medical certificate, undated, which indicates on its face that she was medically unfit to attend work for one day being 27 January 2012: see paras.10 and 11 above. Ms Devonshire did not forward the medical certificate to Magellan Powertronics until 24 February 2012 when it was forwarded to Jolleh Abshar and Masoud Abshar and copied to a payroll employee.
Application in a case and decision on questions
The application in a case and questions
On 27 April 2012 the respondents filed an application in a case (“Application in a Case”) seeking the following orders:
a)that the second and third respondents be removed as parties; and
b)that the application, so far as it relates to ss.340 and 352 of the FW Act be dismissed.
The application in a case was supported by affidavits filed by Masoud Abshar of 23 April 2012 and 23 May 2012, and an affidavit of Jolleh Abshar of 23 April 2012.
At hearing on 19 June 2012, rather than proceeding with the application is a case, the respondents sought that the Court make an order pursuant to r.17.02 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) for a decision by the Court on a question (or in this case questions) separately from another question in the proceedings.
The legislation and principles from the cases
Rules 17.01-17.03 of the FMC Rules provide as follows:
17.01 Definition
In this Part:
question includes a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise.
17.02 Order for decision
The Court may make an order for the decision by the Court of a question separately from another question at any time in a proceeding.
17.03 Separate question
A separate question must:
(a) set out the question or questions to be decided; and
(b) be divided into paragraphs numbered consecutively.
Order 29 r.1 of the former Federal Court Rules defined “question” in very similar terms to r.17.01 of the FMC Rules. Order 29 r.2 of the former Federal Court Rules provided as follows:
The Court may make orders for:
a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
b) the statement of a case and the question for decision.
(See now r.30.01 of the Federal Court Rules 2011 (Cth)).
Given:
a)that rule 17.02 of the FMC Rules and the definition of “question” in r.17.01 of the FMC Rules are very similar to O.29 r.2 and the definition of “question” in O.29. r.1 of the former Federal Court Rules;
b)that because this Court is bound by decisions of the Federal Court, and because the Federal Court is a court superior to this Court in the hierarchy of Australian federal courts: Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ; and
c)further and alternatively to (b), having regard to the necessity for judicial comity between federal courts: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at para.38 per Weinberg, Jacobson and Lander JJ; See v Granich & Associates [2008] FMCA 27 at paras.16-18 per Lucev FM.
this Court ought to adopt the approach of the Federal Court in relation to O.29 r.2 of the former Federal Court Rules when considering applications under r.17.02 of the FMC Rules, subject to what is said below concerning the effect of ss.3, 14 and 42 of the Federal Magistrates Act, 1999 (Cth) (“FM Act”) and r.1.03 of the FMC Rules.
The principles governing whether an order for determination of a separate question ought to be made have been conveniently and succinctly summarised in the Federal Court’s judgment in Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor (1999) 217 ALR 495; [1999] FCA 718 (“Reading Australia”) as follows:
“(a) the term "question" in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an "issue" and a "question" is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an "issue", and less decisive matters of dispute being "questions" (Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425;113 ALR 643 at 647);
(b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties' rights (Landsal Pty Ltd (in liq) v REI Building Society at FCR 425; ALR 647);
(c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [45]);
(d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined (Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General; [1970] AC 179 at 242-3; [1969] 1 All ER 629 at 663-4 per Lord Pearson; Bass v Perpetual Trustee at [53]);
(e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not "ripe" for separate and preliminary determination. An issue may not be "ripe" for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved (CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 per Kirby P at 606);
(f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may:
(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or
(ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O'Neill per Kirby P at 607);
(g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may -
(i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research & Development Pty Ltd v The Commonwealth [1997] FCA 934);
(ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding (GMB Research & Development Pty Ltd v The Commonwealth; Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG 629-37 of 2995, 8 September 1995, BC 9502745) This factor will be of particular significance if the court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or
(iii) prolong rather than shorten the litigation (GMB Research & Development Pty Ltd v The Commonwealth).
Reading Australia ALR at 498-499 per Branson J; FCA at para.8 per Branson J.
In Reading Australia the Federal Court concluded that the making of an order is ultimately to be determined by whether it is just and convenient to do so: Reading Australia ALR at 499 per Branson J; FCA at para.9 per Branson J.
In Reading Australia the Federal Court dismissed an application for separate determination of questions of liability and damages. The Federal Court’s reasons for dismissing the application included the following:
a)the case was one where the parties had not reached agreement as to the facts and there remained important factual disputes between the parties on the issues of liability and damages required determination;
b)there was “a real risk…of overlapping evidence being called on the hearing of the preliminary question and, should liability be established, at the later hearing concerning damages” with “at least one significant witness, and possibly more, whose credit may be in issue, … [possibly having] to be called at both stages of the hearing of the proceedings”;
c)that relief was sought in part by way of declarations which were a form of discretionary relief in respect of which a court will ordinarily wish to be able to consider all relevant matters before determining whether any particular declaration should be made;
d)relief was sought under ss.82 and 87 of the Trade Practices Act, 1974 (Cth) (“TP Act”) whereby the questions as to whether a person had suffered loss or damage, or was likely to suffer, loss or damage were not necessarily able to be wholly separated;
e)the almost certain result that witnesses who had given evidence on the hearing of the preliminary question would be required to give evidence again at a later stage of the proceedings, their credit already having been assessed for the purposes of determining the preliminary issue, and which was likely to “cause embarrassment, and possibly found an application for the judge who determined the preliminary question to disqualify himself or herself from continuing to hear the matter”; and
f)no party suggested, and the Federal Court saw no reason to conclude, that preliminary determination of any question of liability would be likely to lead to a settlement of the proceeding as a whole.
See Reading Australia ALR at 499-500 per Branson J; FCA at para.9-14 per Branson J.
In Orison Pty Ltd v Strategic Minerals Corporation NL & Ors (1987) 77 ALR 141 (“Orison”) the Federal Court upheld an application for determination of a separate question as a preliminary issue. It did so in circumstances where:
a)there was an agreed statement of facts before the court;
b)the agreed statement of facts gave rise to a narrow point to be determined as a preliminary issue, namely, whether the alleged conduct was conduct in “trade or commerce” for the purposes of s.52 of the TP Act;
c)the preliminary issue was able to be dealt with “within the space of a day”; and
d)the motion for a separate trial of the question was not opposed.
See Orison at 149-150 per French J.
In Robe River Mining Co Pty Ltd v The Commissioner of Taxation (Unreported, Federal Court of Australia, No. 498 of 1988, 21 April 1988, French J) (“Robe River Mining”) the Federal Court again allowed an application for the hearing of a separate question as a preliminary issue in circumstances where there was “a preliminary issue which, subject to proper formulation, could lead to considerable saving in time and expense”: Robe River Mining at page 5 per French J. In that case it was common ground that argument on the preliminary issue would take no more than two days, but that a full hearing of the matter could occupy up to two weeks: Robe River Mining at page 3 per French J.
In TVW Enterprises Limited v Duffy (Unreported, Federal Court of Australia, WAG 11 of 1985, 28 March 1985, Toohey J) (“TVW Enterprises”) the Federal Court “albeit with some reservations”: TVW Enterprises at page 5 per Toohey J, granted an application for the hearing of a separate question. In so doing the Federal Court observed that:
a)the decision as to the hearing of a separate question was ultimately one for the court to determine, “though naturally it will have regard to the attitude of the parties”;
b)in the circumstances of that case “there was consensus that the procedure might render a substantive hearing unnecessary”;
c)it was “a relevant consideration to weigh the time likely to be taken in the hearing of a preliminary issue and the availability of hearing dates for that purpose against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place.”
See TVW Enterprises at page 4-5 per Toohey J.
In addition to the general principles consideration must be given to the objects and purposes provisions of ss.3 and 42 of the FM Act and r.1.03 of the FMC Rules.
In Goodall v Nationwide News [2007] FMCA 218 at para.21 per Lucev FM the Court summarised the operation of ss.3 and 42 of the FM Act and r.1.03 of the FMC Rules as follows:
Read together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.
Application of the principles to this case
Nature of the hearing and of the question sought to be determined
The separate questions sought to be asked and determined by the respondents are a major and substantial issues in the litigation.
The questions sought to be determined are in the nature of a conventional preliminary issue, as to the existence of a right, jurisdiction and proper or necessary parties. Ordinarily (but not always), such questions are heard on the basis of:
a)agreed statements of fact;
b)a narrow point to be determined; and
c)a hearing able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).
The questions in this case are conventional separate questions, albeit that there is no agreement on the facts between the parties. There are, however, concrete facts upon which the Court can base its judgment in relation to the three separate questions, which facts are not in dispute for the relevant purposes of the three separate questions. There is a very limited range of relevant facts, which taken together with the relevant legislative provisions, enables the Court to readily answer the separate questions posed.
The Court must consider the length of a hearing if the separate questions are not to be determined, and measure that against the time which will elapse if the separate questions are heard and determined adversely: TVW Enterprises at pages 4-5 per Toohey J. In this case, were the respondents to obtain the answers that they seek with respect to the separate questions posed there would be no hearing of the merits of the Application at all. Even if the respondents do not succeed in obtaining the answers that they seek, the issues for hearing will however have been clarified, and the clarification, in terms of the required length of hearing time, would have taken no longer than the additional hearing time necessary to argue the matter at any final merits hearing.
Evidence – Witnesses and Experts
The separate hearing of the three separate questions posed by the respondents did not require the calling of witnesses or experts, or more particularly, the prospect that they might be recalled and their evidence re-canvassed at any subsequent hearing. Because the relevant facts for the purposes of determining the existence of a right, jurisdiction and the proper or necessary parties, were within a limited compass, the Court did not need to go beyond the affidavits already filed in the matter, and then only for limited purposes as outlined above. The parties did not seek to call or cross-examine witnesses for the purposes of the separate hearing.
Provisions of the FM Act and FMC Rules
The objects and provisions of the FM Act and FMC Rules are met because resolution of the separate questions will either:
a)lead to the final determination by way of an order of dismissal if the respondents obtain the answers that they seek to the questions; or
b)if the respondents do not receive the answers that they seek in relation to the three separate questions, the issues for argument and determination at any final hearing will nevertheless be narrowed, and the prospects of a settlement ought to be increased by resolution of such fundamental preliminary issues.
Settlement
The determination of a separate question is ordinarily directed to a narrow point, the resolution of which “would be likely to lead to a settlement of the proceeding as a whole”: Reading Australia ALR at 500 per Branson J; FCA at para.14 per Branson J. As indicated above, the determination of the separate questions in this matter may lead either to the dismissal of the proceedings, or, at least, a significant narrowing of the issues to be determined at hearing. The latter might facilitate a settlement of the matter.
The Court considers that, even if the separate questions are answered adversely to the respondents, that the answers will be such that the prospects of settlement arising from the hearing of the separate questions are sufficient to warrant the separate questions being heard.
Length of litigation
The length of the litigation, at least insofar as hearing of the matter is concerned, will not be protracted by reason of the determination of the separate questions, and the overall length of the litigation may be foreshortened if the answers result in either dismissal of the proceedings or otherwise increase the prospect of settlement of the proceedings.
Conclusion
Having regard to the principles, the Court determined that it was just, convenient and appropriate in all the circumstances to hear the three separate questions. The Court therefore made an order on 19 June 2012 that the Court decide three questions, namely:
a)whether the applicant has a workplace right or rights within the meaning of s.341 of the FW Act;
b)whether the Court has jurisdiction to hear the applicant’s case alleging contravention of s.352 of the FW Act; and
c)whether the second and third respondents should be removed as parties,
with the questions to be determined without the need for an agreed statement of facts, and the Court proceeded to hear the matter on that day. Following the delivery of the Federal Court judgment in Shea v TruEnergy Services Pty Ltd (No. 1) (2012) 204 FCR 456; [2012] FCA 628 there was a further short hearing on 14 August 2012 which resulted in a further narrowing of the issues, as the respondents, quite properly, abandoned the argument that the Court had no jurisdiction in relation to the claim under s.352 of the FW Act under s.371 of the FW Act because FWA had not issued a certificate under s.369 of the FW Act in relation to the dispute under the FWA Application.
Question (a) – whether there is a workplace right under s.341 of the FW Act
Legislative provisions
Section 341 of the FW Act deals with the meaning of workplace right as provides as follows:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument :
(a) a conference conducted or hearing held by FWA;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer's leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 (which deals with transfer of business).
Section 340(1) of the FW Act provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Section 342(1) of the FW Act relevantly provides as follows:
Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action
Item
Column 1
Adverse action is taken by ...
Column 2
if ...
1
an employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
Section 323 of the FW Act says an:
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a)in full …; and
(b)in money by one, or a combination, of the methods referred to in subsection (2); and
(c)at least monthly.
…
(2)The methods are as follows:
(a) cash;
(b)cheque, money order, postal order or similar order, payable to the employee;
(c)the use of an electronic funds transfer system to credit an account held by the employee;
…
Analysis – s.323 of the FW Act
Section 323 of the FW Act refers to amounts payable to the employee “in money”, and methods by which “money must be paid” and is directed to payments made in money, not in money’s worth or the equivalent of money: see Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2011) 254 FLR 59 at 80-81 per Lucev FM; [2011] FMCA 802 per Lucev FM, the judgment in which was upheld on appeal: see Construction, Forestry, Mining and Energy Unionv Mammoet Australia Pty Ltd (2012) 206 FCR 135; [2012] FCA 850.
To the extent that Ms Devonshire alleges that at the time she made a complaint that, she had either not been paid her motor vehicle allowance at all, or had not been paid the correct amount of salary which she says she was contractually entitled to at the time it was due, and in respect of which she made inquiry or complaint on a number of occasions, and was:
a)entitled to the benefit of a workplace law: FW Act, s.341(1)(a); or
b)able to make a complaint or inquiry as an employee in relation to her employment: FW Act, s.341(1)(c)(ii),
then she had a workplace right.
Ms Devonshire has such a workplace right under s.340(1)(a) of the FW Act because she was entitled to the benefit of a workplace law, namely s.323(1)(a) of the FW Act: FW Act, s.341(1)(a). A “workplace law” means the FW Act because of the definition of “workplace law” which “means … this Act”: FW Act, s.12.
Analysis – s.341(1)(c)(ii) of the FW Act
The respondents asserted that Ms Devonshire was not “able to make a complaint or inquiry” for the purposes of s.341(1)(c) of the FW Act because that provision was limited to formal or specified mechanisms of complaint or inquiry which fell outside the terms of s.341(1)(a) or (b), and, otherwise, argued that if s.341(1)(c)(ii) allowed an employee simply to make a complaint or inquiry of their employer in relation to their employment and have that treated as a workplace right, it would render otiose paragraphs (a) and (b) of s.341(1) of the FW Act.
Dictionary meaning
The Shorter Oxford Dictionary on Historical Principles (3rd Edn) (Oxford: Clarendon Press, 1973) at page 5 relevantly defines “able” as:
Having the qualifications for, and means of, doing anything; having sufficient power, …
The definition, particularly as it relates to the issue of qualification or power, however, simply begs the question which arises out of s.341(1)(c) of the FW Act, namely, whether Ms Devonshire has the means or sufficient power, under the law, to be able to make the present application. That requires consideration of the terms of the legislation, set out above, and the relevant case law.
Case law
In Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) (2009) 186 FCR 22 at 40 per Collier J; [2010] FCA 399 at para.57 per Collier J (“Jones”) the Federal Court considered the meaning of “is able to” in s.341(1)(b) and (c) of the FW Act and made clear that the ability is not confined to rights or mechanisms arising exclusively from the FW Act or other workplace laws, but rather an ability “which can arise from arrangements beyond those conferred by the [FW] Act.” Jones is not inconsistent with either argument in this matter. It merely indicates that rights can arise beyond those conferred by the FW Act. It is not explicit as to whether there has to be any formal extra-legislative machinery or provisions in relation to the making of the complaint or inquiry.
In Hodkinson v Commonwealth (2011) 207 IR 129; [2001] FMCA 171 (“Hodkinson”) the applicant alleged adverse action by her employer, and that she had made a complaint under s.341(1)(c) of the FW Act. The applicant alleged that the section meant that:
… if a person is able to make a complaint or an inquiry in relation to their employment then that is a workplace right. She submitted that the … [FW Act] did not restrict the person or body to whom such a complaint or inquiry could be directed and, by reference to para 1370 of the explanatory memorandum to the Fair Work Bill 2008, submitted that it included situations where an employee makes an inquiry or complaint to his or her employer.
Hodkinson IR at 159 per Cameron FM; FMCA at para.112 per Cameron FM.
This Court supported the applicant’s interpretation of s.341(1)(c) of the FW Act: Hodkinson IR at 163 per Cameron FM; FMCA at para.131 per Cameron FM, where the Court states as follows:
That paragraph does not limit the class of persons to whom a complaint or inquiry may be made and, in particular, is not drawn in such a way as to exclude a person who makes an a complaint or inquiry to his or her employer. This interpretation is borne out by para 1370 of the explanatory memorandum to the Fair Work Bill which stated:
Subparagraph 341(1)(c)(ii) specifically protects an employee who makes any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has “recourse to a competent administrative authority”. It would include situations where an employee makes an inquiry or complaint to his or her employer.
The applicant in Hodkinson failed because this Court determined that she had not in fact made a complaint or inquiry: Hodkinson IR at 163 per Cameron FM; FMCA at para.133 per Cameron FM, but the interpretation of s.341(1)(c) of the FW Act set out above provides for a broad meaning of “is able to”.
In Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 at paras.115-117 per Riley FM (“Ratnayake”) this Court considered that an employer’s refusal to accept a letter from an employee in relation to change of hours in which the employee used the words “I accept under strong protest” constituted a complaint or inquiry by the employee. Further, an implicit complaint, but one that was sufficient for the purposes of s.341(1)(c) of the FW Act, arose from the applicant’s use of words and conduct at a meeting discuss the change of hours.
In Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at 14 per Lawler VP, Sams DP and Williams C; [2011] FWAFB 975 at para.49 per Lawler VP, Sams DP and Williams C (“Nulty”) a Full Bench of FWA said as follows:
The issue is whether the criterion in s 341(1)(c)(ii) is met whenever an employee makes a complaint to a responsible senior manager as a mere incident of the employment relationship. We are inclined to think that is it not and that s 341(1)(c)(ii) contemplates that the employee is "able" to make the complaint by virtue of some provision in a statute or in an instrument such as a enterprise agreement or contract of employment. However, the appellant made no submissions on s 341(1)(c)(ii) and the respondent was not given an adequate opportunity to be heard in relation to this question. We do not think it appropriate to express a concluded view on that issue in the absence of argument.
Nulty is not authority for the proposition that s.341(1)(c)(ii) of the FW Act requires some formal mechanism or provision for a complaint or inquiry for the purposes of s.341(1)(c)(ii) of the FW Act. The Full Bench of FWA did not determine that issue, and expressly noted that they did not express a concluded view upon the issue. Moreover, the matter was not argued before the Full Bench of FWA in Nulty, and the Full Bench of FWA did not (because they did not ultimately consider or rule upon the matter) rule out the possibility that s.341(1)(c)(ii) of the FW Act might give rise to a workplace right on the basis of a simple complaint or inquiry to an employer from an employee in relation to their employment. Decisions of the Full Bench of the FWA exercising arbitral powers under the FW Act are not binding on this Court exercising the judicial power of the Commonwealth. Further, this Court, exercising the Commonwealth’s judicial power has, in Hodkinson and Ratnayake, on the basis of considered examination of the provisions of s.341(1)(c)(ii) reached a contrary concluded view. Comity alone would necessitate this Court following earlier decisions of this Court: see cases cited at para.26(c) above, unless it considered them to be plainly wrong, which it does not. There is nothing in the ordinary meaning of the provisions of the FW Act, and particularly the terms of s.341 of the FW Act (especially when contrasted to earlier provisions such as s.659(2)(e) of the Workplace Relations Act 1996 (Cth) and current provisions such as s.772(1)(e) of the FW Act), and the consideration in Hodkinson and Ratnayake, which indicates that anything other than the ordinary meaning of s.341(1)(c)(ii) of the FW Act ought to be adopted by this Court. That meaning, as set out above, indicates that a complaint or inquiry to their employer by an employee can give rise to a workplace right for the purposes of s.341(1) of the FW Act.
Explanatory Memorandum
In addition to the paragraph cited by this Court in Hodkinson and set out above: see para.56 above, the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (“Explanatory Memorandum”) contains a number of “[i]llustrative examples” including the following:
Freddy works part-time at a petrol station. He believes he is not being paid the correct award rate for a console operator. He writes a letter of complaint to the Australian Competition and Consumer Commission (ACCC) as he mistakenly believes that it is able to investigate wage underpayments. Freddy tells his manager about the letter. Following this, his hours for the next fortnight are cut in half. While the complaint would not be covered by paragraph 341(1)(c)(i) as the ACCC does not have capacity under a workplace law to seek compliance with the applicable award, Freddy would still have exercised a workplace right because he has made a complaint regarding his employment (subparagraph 341(1)(c)(ii)).
The above example demonstrates that the Parliament’s intention was that a complaint can be made to a body without capacity to seek compliance, and that that complaint can be mentioned to the employer, which then constitutes the exercise of a workplace right because of the making of a complaint regarding employment under s.341(1)(c)(ii) of the FW Act. That confirms that the ordinary meaning of “is able to” for the purposes of s.341(1)(c) of the FW Act includes the making of a complaint directly by an employee to an employer in relation to their employment. In that regard, the provisions of the Explanatory Memorandum are extrinsic materials which confirm the ordinary meaning conveyed by the text of s.341(1)(c) of the FW Act: Acts Interpretation Act 1901 (Cth), s.15AB.
Conclusion – “is able to”
The consideration of s.341(1)(c) of the FW Act, both judicial and parliamentary, points to the ordinary meaning of the phrase “is able to” being the correct construction of that phrase in s.341(1)(c) of the FW Act, that being that an employee can make a complaint or inquiry direct to their employer and such a complaint or inquiry can constitute a workplace right for the purposes of s.341(1)(c)(ii) of the FW Act.
Conclusion – workplace right
For the reasons set out above, Ms Devonshire has a workplace right with respect to alleged adverse action in relation to her entitlement to, and her complaints or inquiries about, her salary package and payments. The answer to question (a) is therefore “yes”.
Question (b) – whether jurisdiction to hear s.352 claim
Section 352 of the FW Act provides as follows:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Regulation 3.01 of the Fair Work Regulations 2009 (Cth) provides as follows:
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107 (3) (a) of the Act, for taking paid personal/carer's leave for a personal illness or personal injury, as mentioned in paragraph 97 (a) of the Act.
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee's absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97 (a) of the Act for the duration of the absence.
(6) In this regulation, a period of paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97 (a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers' compensation.
Regulation 3.01 of the FW Regulations is an exhaustive statement of the illnesses or injuries which will support a claim under s.352 of the FW Act: Hodkinson v Commonwealth (2011) 207 IR 129 at 168 per Cameron FM; [2011] FMCA 171 at para.157 per Cameron FM; Rogers v Millennium Inorganic Chemicals Ltd & Anor (2009) 229 FLR 198 at 207-208 per Lucev FM; [2009] FMCA 1 at paras.52-53 per Lucev FM.
The respondents submitted that there was a want of jurisdiction in this matter because at the time the medical certificate was submitted by Ms Devonshire she was a former employee rather than an employee of Magellan Powertronics, and that the medical certificate provided for in reg.3.01 of the FW Regulations required that it be submitted by an employee and not a former employee. The nonsense of this submission is apparent when other provisions of the FW Act are examined. If the respondents’ submission was correct it would mean that “employee” in s.342 (adverse action) would not include a dismissed employee, and s.772 (unlawful termination) would not include former employees. Section 352 of the FW Act when it refers to an “employee” refers to an employee who if dismissed then has a civil remedy in the circumstances prescribed by reg.3.01 of the FW Regulations. As often as not a person in the circumstances to which s.352 of the FW Act is applicable may be an employee who has become a former employee before providing any medical certificate to the employer. On a proper and purposive interpretation of the FW Regulations the “employee” referred to in reg.3.01 of the FW Regulations is the “employee” who is dismissed for the purposes of s.352 of the FW Act. The provisions allowing for an extension of time under reg.3.01(2)(b) of the FW Regulations must be considered to be such as to allow former employees to provide medical certificates to employers outside of the 24 hour period, and outside of the employment period in some circumstances, and for the Court to make a determination as to whether that is reasonable or not. The intention of beneficial legislation such as the FW Act is to provide an opportunity for an employee dismissed to obtain a remedy in respect of that dismissal, and not for extreme interpretations of the FW Regulations to preclude former employees from obtaining a remedy. In this respect, the respondents’ argument fails.
For an employer to succeed in avoiding an adverse finding under the provision the employer must prove either that it did not know the reason for the absence or that it did not terminate the employment by reason of the absence: Sperandio v Lynch (2006) 160 IR 360 at 383 per Jessup J; [2006] FCA 1648 at para.91 per Jessup J.
The essential facts in relation to this issue are that:
a)Ms Devonshire was employed by Magellan Powertronics;
b)on 27 January 2012 she indicated to a general manager at Magellan Powertronics that she was unwell and was going to see a doctor;
c)she advised both Masoud Abshar and Jolleh Abshar accordingly by email;
d)the advice that she was going home ill was acknowledged by Jolleh Abshar with a request to provide a doctor’s certificate;
e)the letter of termination (Claim Form, document N set out above at para.18) specifically alludes to the fact that Ms Devonshire left the office on 27 January 2012; and
f)a doctor’s certificate was subsequently provided, but not until 24 February 2012, some four weeks after Ms Devonshire’s employment was terminated.
A doctor’s certificate was not provided on 27 or 28 January 2012. It is clear that in terms of reg.3.01(2)(a) of the FW Regulations that the 24 hour time limit running from commencement of the absence cannot be met. The question arises, however, as to whether a longer period, namely until the medical certificate was finally forwarded on 24 February 2012, “is reasonable in the circumstances”, those circumstances including the termination of Ms Devonshire’s employment.
In the above circumstances, the Court clearly has jurisdiction to determine the claim made by Ms Devonshire. There is clearly an argument that she was temporarily absent from work because of illness or injury of a kind prescribed by reg.3.01 of the FW Regulations, and an argument to be mounted that there was a prescribed kind of illness for which a medical certificate was provided. The issue, which is an issue of discretion in the exercise of a power within jurisdiction, is whether or not it is reasonable in the circumstances for a longer period than that prescribed by reg.3.01(2)(a) of the FW Regulations ought to be allowed for the provision of a medical certificate, in these circumstances, a period of four weeks: reg.3.01(2)(b) of the FW Regulations.
In circumstances where the question is narrowly framed as a question as to the existence of jurisdiction (and not any question as to the exercise of power or discretion within jurisdiction) it is obvious that the above circumstances lead to the answer to question (b) being “yes”.
Question (c) – removal of parties
The respondents ask whether Masoud Abshar and Jolleh Abshar should be removed as parties to this application.
The Court has power to remove a party as a party to an application under r.11.04 of the FMC Rules. Rule 11.04 of the FMC Rules provides as follows:
(1) A party to a proceeding may apply to the Court to be removed as a party.
(2) The party must file an affidavit stating:
(a) the relationship (if any) of the applicant to each other party; and
(b) the evidence in support of the application.
(3) The party must serve a copy of the application and affidavit on each other party in the proceeding.
A party which is not a necessary party to proceedings may be removed as a party under r.11.04 of the FMC Rules: Messmer v Cable & Anor [2011] FMCAfam 167 at para.21 per O’Sullivan FM.
Section 550 of the FW Act provides as follows:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
The basis on which the removal of Masoud Abshar and Jolleh Abshar is sought is that:
a)an allegation under s.340 of the FW Act may only be pursued against a “person” referred to in s.342 of the FW Act, and that Masoud Abshar and Jolleh Abshar were not such persons; and
b)an allegation under s.352 of the FW Act may only be pursued against an employer, and Masoud Abshar and Jolleh Abshar were not Ms Devonshire’s employer.
In essence, Masoud Abshar and Jolleh Abshar are alleging that they have been improperly or unnecessarily joined as a party to this application.
Both Masoud Abshar and Jolleh Abshar admit to being involved in communications with Ms Devonshire about her employment, including communications with her about the terms and conditions of her employment, and the payment of salary and allowances: Affidavit of Masoud Abshar, 23 May 2012, paragraph 5; Affidavit of Jolleh Abshar, 23 April 2012, paragraph 6. Jolleh Abshar was involved in the termination of Ms Devonshire’s employment as it was he who sent the email to her terminating her employment: see para.18 above.
Section 550 of the FW Act provides for accessorial liability for a breach of civil remedy provisions. Sections 340 and 352 of the FW Act are civil remedy provisions. Section 550 of the FW Act provides that involvement in a contravention of the FW Act shall be treated in the same way as an actual contravention.
The relevant principle in federal civil litigation in relation to legislative provisions such as s.550 of the FW Act is derived from the High Court’s judgment in Yorke & Anor v Lucas (1985) 158 CLR 661 (“Yorke”), and the numerous cases which have followed that judgment, which indicate that to be liable a putative accessory must intentionally participate in a contravention, and that to form the requisite intent the putative accessory must have knowledge of the essential matters going to make up the contravention, whether or not the putative accessory knows that those matters amount to a contravention. Necessary intent will be absent if the putative accessory does not know or believe that the assistance or encouragement given is something which goes to make up the facts which constitute the contravention. The principle as it applies in federal civil litigation has its origins in the criminal law: Yorke at 676 per Brennan J; Giorgianni v The Queen (1985) 156 CLR 473 at 506 per Wilson, Deane and Dawson JJ, and one of its early federal legislative manifestations is in s.75B of the Trade Practices Act 1974 (Cth). The principles concerning accessorial liability under federal workplace relations legislation are further expounded in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at 308 per Tamberlin, Gyles and Gilmour JJ; [2007] FCAFC 87 at para.26 per Tamberlin, Gyles and Gilmour JJ, where the Full Court of the Federal Court observed that:
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashburyy v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E- 308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention.
Accessorial liability provisions such as those in workplace relations legislation are commonplace in Commonwealth legislation: see, for example, Competition and Consumer Act 2010 (Cth), s.151BW (person involved in a contravention of the competition rule, etc.); Paid Parental Leave Act 2010 (Cth), s.145 (involvement in contravention treated in same way as actual contravention); Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), s.694.55 (involvement in contraventions); Corporations Act 2001 (Cth), s.79 (involvement in contraventions), to name but a few that are in identical, or practically identical, terms to s.550 of the FW Act.
Provisions in relation to accessorial liability are designed to ensure that persons involved in contravening conduct, often directors or very senior employees of corporations, are held liable for their conduct insofar as it resulted in a contravention of the relevant legislation. Further, they also ensure that liability is able to be imposed on persons involved in the contravening conduct in circumstances where a company has, for example, become insolvent or been deregistered, and no penalty would otherwise be recoverable.
Under a provision which provides for accessorial liability for breach of civil remedy provisions action may be taken against accessories without taking action against the principal: Australian Competition and Consumer Commission v Black on White Pty Ltd & Ors (2001) 110 FCR 1 at 14 per Spender J; [2001] FCA 187 at para.51 per Spender J. An action may continue against an accessory when discontinued against a principal: Torpia v Empire Printing (Australia) Pty Ltd (2009) 188 IR 306 at 319 per Barnes FM; [2009] FMCA 853 at para.65 per Barnes FM. An accessory may also be liable where a company has been deregistered: Fair Work Ombudsman v Proplas Industries Pty Ltd & AnorandFair Work Ombudsman v Blacklight Investments Pty Ltd & Anor [2011] FMCA 506 at paras.21-26 per Lucev FM. The position is different in respect of this Court’s small claims proceedings where, because they do not concern pecuniary penalty orders and are not civil penalty proceedings, orders can only be made against an employer: Beer v Limb & Anor [2012] FMCA 494 at paras.24-25 per O’Sullivan FM. This matter is not a small claims matter.
Against the above background it is extraordinary that a submission could be made, as it has been made on behalf of the second and third respondents, that that they are not liable because they are not a “person” for the purposes of s.340 of the FW Act, and not the “employer” for the purposes of s.352 of the FW Act. That submission misses the point, and completely ignores the terms of s.550 of the FW Act, which seek to impose liability on a person found to be an accessory separate to the “person” or “employer” who is alleged to have actually contravened the relevant legislative provisions, here ss.340 and 352 of the FW Act. The respondents’ submission is without any merit whatsoever.
It follows from the above that the respondents’ question (c) should be answered “no”.
Conclusions and orders
The Court has concluded that the answers to the questions raised are as follows:
a)question 1 – yes;
b)question 2 – yes;
c)question 3 – no.
It follows that there also ought to be an order that the application in a case filed by the respondents on 27 April 2012 be dismissed.
The Court will hear the parties as to further directions.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 11 April 2013
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