Girardi v Allergan Australia Pty Ltd
[2017] FCCA 163
•8 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIRARDI v ALLERGAN AUSTRALIA PTY LTD | [2017] FCCA 163 |
| Catchwords: INDUSTRIAL LAW – Jurisdiction – accrued jurisdiction – whether subject claim is a matter associated with matters in which the jurisdiction of the Court has been invoked – private contractual matters – jurisdiction not invoked – claim dismissed. |
| Legislation: Federal Circuit Court Act 1999 (Cth), ss.10, 10a(3), 10A & 18 Fair Work Act 2009 (Cth), ss.542, 566 & 577 |
| Cases cited: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 Fencott v Muller (1983) 152 CLR 570 |
| Applicant: | DANIEL DOMINIC GIRARDI |
| Respondent: | ALLERGAN AUSTRALIA PTY LTD |
| File Number: | ADG 242 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 9 November 2016 |
| Date of Last Submission: | 9 November 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 8 February 2017 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Boyce |
| Solicitors for the Respondent: | ANZ, Allergan Pty Ltd |
ORDERS
The application dated 4 August 2016 is dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 242 of 2016
| DANIEL DOMINIC GIRARDI |
Applicant
And
| ALLERGAN AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
This is an Application in a Case filed by the respondent to summarily dismiss the applicant’s claim for want of jurisdiction. The applicant has filed a claim in the Fair Work Division of this Court to be dealt with pursuant to the Small Claims procedures of the Court. The claim alleges a contravention by the respondent in failing to make a payment to him pursuant to the respondent’s Sales Incentive Plan (‘SIP’). The applicant alleges that he is entitled to an amount of $7,400 under that plan. The SIP is provided for by clause 6 of the Employment Contract signed by the applicant as follows:
“6. SALES INCENTIVE PLAN
6.1You are eligible to participate in the Company’s Sales Incentive Plan (SIP). A copy of the SIP relevant to you is attached to this employment agreement and contains all the policies and operating guidelines relevant to the SIP. Please read this document carefully.
6.2SIP payments will be paid quarterly via EFT into your nominated bank or building society account, one full month following the close of the quarter.
6.3The Company will deduct applicable taxes from your SIP payment prior to paying the balance to you.”
For the purpose of these reasons, I will refer to the disputed SIP payment as an ‘incentive based payment’. Mr Girardi’s employment was terminated by his employer, he says, two and half weeks before the end of the relevant quarter, and for that reason, his incentive based payment was withheld. He successfully challenged his termination of employment in the Fair Work Commission. He was found to be unfairly dismissed and compensation was awarded. The Commission declined to deal with the question of his entitlement to the bonus, saying:
“[163] Mr Girardi requested that the Commission make recommendations about the non-payment of his LSL and in relation to a quarterly bonus for the first quarter of 2014/2015 financial year and some accumulated leave. On the basis of my findings, there is an issue about whether Mr Girardi is entitled as a matter of right to his accumulated LSL under the terms of the relevant State legislation (which has been preserved by s.27 and s.113 of the FW Act). This, and any other alleged entitlement may be sought by Mr Girardi through a court of competent jurisdiction, and I do not propose to enter that field as sought by the applicant.”
The respondent does not dispute that the applicant was employed by it under the contract annexed to the affidavit of the applicant. It does not dispute that Mr Girardi was employed under the Commercial Sales Award 2010. It submits, with respect to the merits of this claim in any event, that Mr Girardi is not entitled to an incentive based payment under the SIP because he did not complete the final quarter of his employment. The applicant contends that given he was found to have been unfairly dismissed, and by reason of that dismissal unable to complete the relevant quarter, he is entitled to be paid the amount of any incentive based payment that had accrued under the plan at the time of his termination. The respondent further contends that this Court does not have jurisdiction under the Fair Work Act 2009 (Cth) (‘FW Act’) to deal with the claim.
The respondent’s application
The grounds of the respondent’s application are particularised as follows:
“1.The Applicant’s claim is not a matter arising under the Fair Work Act 2009 (ie it is purely a contractual claim at common law unconnected to the Fair Work Act 2009).
2.The Application fails for want of jurisdiction. The parties cannot even consent to give the Court jurisdiction where it does not have any such jurisdiction in the first place.
3.Further to the foregoing, the matter is not a “small claim” for the purposes of Division 3, Part 4-1 of the Fair Work Act 2009 or Division 45.4, Part 45 of the Federal Circuit Court Rules 2011.
4.Given the Court has no jurisdiction, despite the matter being advanced as a small claim, no leave is required for the Respondent to be represented by a lawyer pursuant to Division 3, Part 4-1 of the Fair Work Act 2009 or Division 45.4, Part 45 of the Federal Circuit Court Rules 2011.”
The respondent submits that the applicant was employed under the award but also under a common law employment contract. The SIP was part of the common law contract and has no basis in the award. In seeking to bring only the common law component before this Court, the application must fail because the Court has no jurisdiction.
Mr Girardi submits that this Court has jurisdiction to deal with civil claims arising under the Fair Work Act. He says that his claim falls squarely within the Fair Work Division of this Court by virtue of s.10A of the Federal Circuit Court Act 1999 (Cth) (‘FCC Act’), and s.566 of the FW Act. He submitted that the SIP comes within s.542 of the FW Act which deals with safety net contractual entitlements. He contends that his bonus was an “entitlement” and not as a result of a common law contract.
Consideration
The jurisdiction of this Court is created by Part 3 of the FCC Act. With respect to the original jurisdiction of the Court, s.10 says:
“Original jurisdiction--general
10(1)The Federal Circuit Court of Australia has such original jurisdiction as is vested in it by laws made by the Parliament:
(a)by express provision; or
(b)by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit Court of Australia in relation to a matter.
(1A)The Federal Circuit Court of Australia also has such original jurisdiction as is vested in it by a legislative instrument made under section 10AA.
(2)The original jurisdiction of the Federal Circuit Court of Australia includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.
(3)The process of the Federal Circuit Court of Australia runs, and the judgments of the Federal Circuit Court of Australia have effect and may be executed, throughout Australia.”
The Fair Work Division of this Court is established by s.10a(3) of the FCC Act:
“Fair Work Division
(3)The following jurisdiction of the Federal Circuit Court of Australia is to be exercised in the Fair Work Division:
(a)jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
(b)jurisdiction that is incidental to such jurisdiction.
Note: Under section 566 of the Fair Work Act 2009 , jurisdiction is required to be exercised in the Fair Work Division of the Federal Circuit Court of Australia in relation to matters arising under that Act.”
Section 566 of the FW Act confers jurisdiction on this Court in relation to civil matters. It is expressed succinctly as follows:
“Conferring jurisdiction on the Federal Circuit Court
Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act.”
(Emphasis added)
Section 577 of the FW Act reads as follows:
“Exercising jurisdiction in the Fair Work Division of the Federal Circuit Court
Jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if:
(a)an application is made to the Federal Circuit Court under this Act; or
(b)an injunction is sought under section 15 of the Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or
(c)a declaration is sought under section 16 of the Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or
(d)proceedings in relation to a matter arising under this Act are transferred to the Federal Circuit Court from the Federal Court; or
(e)the High Court remits a matter arising under this Act to the Federal Circuit Court.”
This Court has jurisdiction in ‘associated matters’. That arises by operation of s.18 of the FCC Act which states:
“Jurisdiction in associated matters
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.”
(emphasis added)
The starting point is to ask what is the contravention of the FW Act that is alleged? Mr Girardi says that it is a failure to pay the SIP incentive based payment. In what way does that amount to a contravention under the FW Act? It would be a contravention if it breached the terms of a modern award. The Commercial Sales Award is a modern award. It makes no reference to incentive based payments. Clause 6 of the Award states that the Award and the National Employment Standards contain the minimum conditions of employment for employees covered by the Award. The National Employment Standards make no reference to incentive based payments. Part 4 of the Award deals with minimum wages and related matters. That part contains no reference to incentive based payments. The SIP in question is not an “allowance” under that part.
In brief, Mr Girardi was not entitled to take part in the SIP, either by the express terms of the Award, or the provisions of the National Employment Standards. I do not accept his submission that the SIP comes within s.542 of the FW Act. That section deals with safety net contractual entitlements of, inter alia, a national system employee. A safety net contractual entitlement is an entitlement under a contract between an employee and an employer relating to the subject matter described in subs.61(2) and subs.139(1) of the FW Act.[1] Subsection 61(2) does not assist the applicant as it deals with the National Employment Standards, which as I have observed, make no mention of incentive based payments. Mr Girardi is correct when he submits that s.139(1)(a)(ii) of the FW Act refers to incentive based payments and bonuses. That section does not assist him either. The effect of that section is to permit a modern award to include terms about those matters. As I have said, the relevant Award does not include terms about incentive based payments or bonuses.
[1] Dictionary, section 12 of the Fair Work Act.
The SIP in question was an extra term of his employment conditions, which did not arise because of any term of the Award or by virtue of the FW Act. It was, as the respondent submits, part of a common law contract between the applicant and the respondent that operated in tandem with the Award.
On its face, the applicant’s claim does not come within the jurisdiction of the Fair Work Division of this Court. The question then arises, does this Court have jurisdiction on the basis that it is an “associated matter” by virtue of s.18 of the FCC Act?
Is not necessary to engage in a lengthy discussion of accrued jurisdiction to answer that question. By virtue of s.18 of the FCC Act, this Court has jurisdiction to deal with non-federal matters if they are associated with an action taken in this Court, the subject matter of which is within the jurisdiction of the Courts. The question of whether a matter outside jurisdiction is associated with a matter within jurisdiction boils down to whether the matter is a part of the same controversy.[2] The federal claim must be a substantial aspect of the controversy in order for accrued jurisdiction to be enlivened.[3] The problem for the applicant in this matter is that he has not brought an action in which the jurisdiction of this Court is invoked. He has simply sought to bring an action in a contractual matter. The fact that the contractual issue arose in the workplace does not itself give this Court jurisdiction to entertain his claim. As the Full Court of the Federal Court said in Johnson Tiles:
“If there be no federal jurisdiction properly invoked, then there can be no accrued jurisdiction …”[4]
[2] Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 at [83].
[3] Ibid at [84] citing Fencott v Muller (1983) 152 CLR 570.
[4] Ibid at [87].
That is the point of distinction between this matter and the authority of Crawford v Steadmark Pty Ltd (No.2),[5] cited by the applicant in his submissions. In that matter, this Court did deal with an allegation of the failure to provide a bonus. However, that occurred in the context of a claim for a breach of a general protection by adverse action in having terminated employment for a prohibited reason. In other words, the jurisdiction of the Court was properly invoked.
[5] [2015] FCCA 2697.
I am satisfied that I do not have jurisdiction to determine Mr Girardi’s claim with respect to the non-payment of the SIP.
The applicant has not properly invoked the jurisdiction of the Court. Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 8 February 2017
4
3