Gonzalez-Barbosa v Go to Court Franchising Pty Ltd & Anor
[2017] FCCA 361
•9 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GONZALEZ-BARBOSA v GO TO COURT FRANCHISING PTY LTD & ANOR | [2017] FCCA 361 |
| Catchwords: INDUSTRIAL LAW – Legal Services Award 2010 – solicitor holding practising certificate – not Level 3 Clerical and Administrative employee. PRACTICE AND PROCEDURE – Federal Circuit Court of Australia – Summary judgment – Application by respondent to dismiss proceedings summarily under s.17A(2) of Federal Court of Australia Act 1999 (Cth) –applicant solicitor holding current practising certificate – claimed entitlements as Level 3 Clerical and Administrative employee – whether Court could be satisfied applicant had no reasonable prospect of successfully prosecuting proceeding – claims under award for wages and superannuation dismissed – claim for contravention of ss.357, 550 of Fair Work Act 2009 (Cth) allowed to go forward to trial. STATUTES – Construction – Summary judgment – “no reasonable prospect”. WORDS AND PHRASES – “no reasonable prospect”. |
| Legislation: Fair Work Act 2009 (Cth), ss.45, 357, 545, 550 Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Owners of “Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 Spencer v The Commonwealth (2010) 241 CLR 118 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Sun v EP2 Management Pty Ltd [2016] FCCA 1381 Upaid Systems Ltd v Telstra Corporation Limited[2016] FCAFC 158 |
| Applicant: | JACQUELINE LESLEY GONZALEZ-BARBOSA |
| First Respondent: | GO TO COURT FRANCHISING PTY LTD |
| Second Respondent: | JAMES TERENCE ALEXANDER STEVENS |
| File Number: | BRG 1015 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 20 February 2017 |
| Date of Last Submission: | 20 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 9 March 2017 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms K Gothard |
| Solicitors for the Respondents: | Go to Court Lawyers |
ORDERS
Pursuant to s.17A(2) of the Federal Circuit Court Act 1999 (Cth) the claim:
(a)for non-payment of wages is dismissed;
(b)for non-payment of superannuation is dismissed;
(c)for contravention of s.45 of the Fair Work Act 2009 (Cth) is dismissed.
The application for summary judgment is otherwise dismissed.
The respondents are to file and serve their defence within 7 days of this judgment.
The applicant is to file and serve any reply within 7 days after service of the defence upon her.
That by 4.00pm on 16 March 2017 the parties file and serve any submissions in relation to the costs of the application for summary dismissal of the proceeding. Such submissions not to exceed 3 pages.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1015 OF 2016
| JACQUELINE LESLEY GONZALEZ-BARBOSA |
Applicant
And
| GO TO COURT FRANCHISING PTY LTD |
First Respondent
| JAMES TERENCE ALEXANDER STEVENS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant worked for the first respondent from 18 June 2012 until 26 November 2014. The applicant’s claim is that she had left her work with the first respondent without notice. She claims for compensation and other relief under the Fair Work Act2009 (Cth).
These reasons for judgment concern an application for summary judgment pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001. I have concluded that that application should be granted in relation to three of the claims made, but that the balance of the claims in the proceeding should not be dismissed.
In light of this conclusion, I note the first respondent agreed that if the application was granted, it would not rely upon alleged over-payments as detailed in an affidavit and their response to the applicant’s claim. The orders made upon the determination of this application do not foreclose the respondents from relying upon the alleged overpayments either by way of evidence or in defence of any claim that remains.
Procedural history
On 1 November 2016 the applicant filed an application in the Fair Work Division of the Brisbane Registry of the Court. The application indicated that the final orders sought and the grounds for the claims were as set out in the claim that was filed with that application.
By Part G of her claim, the applicant alleged that the first respondent had contravened s.357(1) of the Fair Work Act 2009 (Cth) and that, contrary to s.550 of that Act, the second respondent had been knowingly concerned in that contravention. By Paragraph 3 of Part G of the claim, the applicant further alleged that, contrary to s.45 of that Act, the first respondent was in breach of a term of a modern award (being the Legal Services Award 2010 (Qld) (“Award”)), by underpaying wages and entitlements under that Award.
While Part G of the claim proceeded to outline the factual basis for the application, it is convenient to address them by reference to the allegations contained in the statement of claim referred to below.
The orders sought in the claim was for:
a)compensation of $26,293.57;
b)interest;
c)damages for hurt and humiliation;
d)a pecuniary penalty.
As appears below, the quantum of the claim was significantly reduced.
Part H of the claim alleged as follows:
“I was employed as a Legal Advice Hotline lawyer which involved taking queries from clients by phone, email and webchat in regard to their legal issues and booking them with a lawyer in the network. I also gave legal advice on occasion to clients who rang the “Legal Advice Now” Hotline set up by the second respondent and did voice overs for the first respondent’s video productions. On one occasion I assisted my husband (who is a chef) in providing catering services for the second respondent”.
Text within Part I of the claim directed the applicant to provide, by way of an annexure, details of the compensation and other relief sought. The applicant’s annexure, which ran to 13 pages, detailed the basis on which her claim for compensation was made including as follows:
“Calculation of underpayment and non-payment of wages and superannuation . . .
Modern Award: Legal Services Award 2010 [MA000116]
Date of commencement: 18/06/2012
Date of resignation: 26/11/2014
Wages . . . $13,971.89
Superannuation . . . . $12,321.68
Total owed = . . . $26,293.57 + General Damages.”
On 5 December 2016 the respondents filed a response which addressed in detail the allegations made in the claim.
The application was listed for a first hearing on 16 December 2016.
On that date, a Judge of this court made orders regulating the filing of pleadings, evidence by affidavit, mediation and adjourned the matter for mention on 15 May 2017.
On 5 January 2017 the applicant filed an application for leave to amend her claim. The applicant swore an affidavit on that date which proffered an explanation for the proposed amendments. Relevantly, her affidavit deposed:
“3. In the Form 4 I claimed, inter alia, the amount of $26,293.57 in compensation for underpayment of wages and non-payment of superannuation.
4. I made a clerical error in calculating the alleged amount owed in wages, such that I accept that I was paid just over the minimum wage for a Level 3 Clerical and Administrative employee under the Legal Services Award 2010.
5. I wish to amend the amount claimed for compensation in the Form 4 - Fair Work Division to $2545.96. This amount consists of $2325.08 in unpaid wages for the weeks ending 21st November 2014 and 28th November 2014 and $220.88 in respect of unpaid superannuation for those two weeks. I also wish to amend my claim for “under payment of wages” to “non-payment of wages”.
Unpaid wages
6. The first respondent told me I was a contractor and had to submit invoices under an ABN in order to be paid for my work.
7. I duly submitted invoices for my hours worked on a fortnightly basis and
8. All my invoices were paid by Go to Court Franchising Pty Ltd except for invoices 92, 93 and 94 which are attached as Annexure JG-A.
9. On 4th August 2016 I sent a Letter of Demand for payment of these invoices and received an email back from the second respondent stating, inter alia, “You did do the work in the invoices” but that he was not going to pay them as he considered I had made a deceitful claim for superannuation. Annexure JG-B is my Letter of Demand and the Response.
10. As I wish to claim non-payment of wages under the Legal Services Award 2010, I abandon bookings for October and November 2014 (Invoice 93 and 94) and instead claim for minimum wages that should have been paid for the weeks ending 21st November 2014 and 28th November 2014…”
The applicant’s evidence above was that she accepted having been paid “just over the minimum wage for a Level 3 Clerical and Administrative employee under” the Award.
It should not be overlooked that the applicant deposed in paragraph 10 of that affidavit as to three decisions that she had made: first, she wished to claim for non-payment of wages under the Award; secondly, she abandoned her claims in respect of bookings for October and November 2014 (Invoices 93 & 94), and; thirdly, instead the applicant wished to claim for minimum wages confined to the two weeks ending 21 November 2014 and 28 November 2014.
Notably, no amendment was proposed in relation to the allegations in the claim that the applicant was employed as a lawyer and had given legal advice or that her claim was being made under the Award.
As to quantum, the most significant amendments reflected in the proposed amended claim for unpaid or underpaid was, as to:
a)wages, reduced from $13,971.89 to: $2,325.08;
b)superannuation, reduced from $12,321.68 to: $ 220.88;
In sum, the claim was reduced from $26,293.57 to $2,545.96.
In addition, the claim for general damages was maintained.
A comparison of the annexure to the original claim with the annexure to the amended claim also confirmed that the applicant had abandoned claims in respect of entitlements for non-payment of wages for the period 22 June 2012 to 14 November 2014. Instead, the annexure to the amended claim confined the claim to the two weeks ending 28 November 2014. It too confirmed that the claim for compensation was grounded upon alleged entitlements under the Award.
In the course of the hearing before me the respondents indicated that the proposed amendments to the claim were not opposed.
In addition, on 19 January 2017 the applicant filed a statement of claim (“SoC”). Much of the detail in that pleading replicated the matters set out in the claim and amended claim. Relevantly, the allegations that had been alleged included in that statement of claim stated:
“Applicant
1. At all material times the applicant was a lawyer . . .
First Respondent
2. . . .
Second Respondent
3. . . .
Terms of Employment
4. In or about 2011, the applicant applied for a role with the first respondent advertised on the website ‘seek.com.au’ and described as a “Legal Hotline Lawyer”
5-6. . . .
7. During the meeting referred to in paragraph 6 above, the second respondent:
a Offered the applicant the role as described in paragraph 4
b-c . . .
d Told the applicant she would be employed on a contract basis and would be a contractor;
e-g.
8-9. . . .
10. The applicant commenced work for the first respondent on 18 June 2012 as a “Legal Hotline Lawyer.”
11-40 . . . ”
An examination of paragraphs 1-10 of the SoC confirm that the allegations as formulated in the claim and the amended claim were advanced on the basis that the applicant was a lawyer, that employment had been advertised for a lawyer, that she had been offered employment as a lawyer, that she had accepted employment as a lawyer and that she had commenced work and acted in that capacity.
For completeness, I note it was common ground that the applicant was admitted to practice in 2004 and held a practising certificate throughout the period of her work with the first respondent.
The remainder of the allegations in the SoC include:
a)the applicant’s rosters, rates of pay, the cessation of her employment on 26 November 2014 (SoC 11-16);
b)the nature of the applicant’s role (SoC 17);
c)alleged contraventions of s.357 of the Fair Work Act 2009 (Cth), grounded in allegations that the respondents had told her she would be an independent contractor and would be required to render invoices (SoC 18-22);
d)non-payment of wages pursuant to the Award (SoC 23-33);
e)non-payment of superannuation (SoC 20 & 34);
f)contravention of s.45 of the Fair Work Act 2009 (Cth) for contravening a term of a modern award (SoC 35);
g)hurt and humiliation (SoC 36- 8);
h)orders sought (SoC 39-40).
On 14 February 2017, the respondents filed an application seeking summary judgment pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth). An affidavit filed in support of the summary judgment application deposed, amongst other matters, to:
a)the first respondent’s MYOB accounting system records which demonstrated that the first respondent had paid a sum of:
i)$4,052 in respect of wages over and above that claimed by the applicant;
ii)$2,086 in respect of superannuation over and above that claimed by the applicant;
(Figures in a) above have been rounded);
b)in relation to superannuation contributions, the first respondent having paid the applicant the sum of $15,128 based upon a decision to effect a commercial resolution of that claim following an investigation by the Australian Taxation Office;
c)the applicant, throughout her engagement, having:
i)held a full practising certificate to practice as a lawyer;
ii)used an email signature describing herself as a solicitor.
The application for summary judgment was returnable on 20 February 2017. I was informed from the bar table that immediately prior to the commencement of that hearing, the applicant had provided the respondents with a document entitled “Investigation Report”. The respondents’ counsel indicated that she desired to obtain instructions in relation to that document. I invited the applicant to confirm whether she wished to rely upon it. After being provided a copy of the document I indicated I would not decide whether to accept the document into evidence, or as a submission, until after the respondents had had an opportunity to consider it and obtained instructions.
I also indicated that in light of the significant reduction in the quantum of the claim, the parties might wish to consider whether the matter was capable of resolution in its entirety. Following a brief adjournment the parties indicated that the application would proceed.
When the applicant confirmed that she wished to rely upon the “Investigation Report” the respondents’ counsel stated that many of the matters contained in that “Report” were in contest. Ultimately the objection was withdrawn and it was submitted that any weight attaching to the contested report fell to be evaluated in the context of an application for summary judgment and the inability to test the document. The “Investigation Report” became Exhibit A.
The “Investigation Report” contains a series of observations which, if otherwise at all relevant, might be more fully investigated at trial. For present purposes, the report dated 18 June 2015 detailed the results of an investigation concerning alleged failure to pay superannuation. The report identified that a complaint had been lodged by the applicant in December 2014, that the second respondent had been invited to respond to that complaint and had done so within two days of such invitation. The report recorded the results of the investigation and stated that: “In the absence of evidence from the ATO it is recommended that the allegation be dismissed”. Another complaint (as to inadequate supervision) was also dismissed.
As noted above, the Australian Taxation Office did conduct an investigation concerning the payment of superannuation contributions by the first respondent, irrespective of whether the applicant was an independent contractor or an employee, in consequence of which the first respondent paid her the sum of $15,128.
Summary judgment
Section 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) permit that the Court may give judgment and order that a claim be dismissed generally or in relation to any claim for relief where it is satisfied that the party prosecuting the proceeding or claim has no reasonable prospect of successfully prosecuting the proceeding or claim.
These provisions were introduced in response to what was a perceived increase in the institution and pursuit of unmeritorious litigation. Analogue provisions have also been introduced in the Federal Court of Australia Act1976 (Cth) and to legislation regulating State courts.
It is beyond argument that caution must be exercised when considering whether to grant summary judgment and that the power to dismiss a claim or proceeding is not to be exercised lightly. I approach the present application with those principles uppermost in mind.
While the power to order summary judgment of a proceeding is of ancient lineage, the regime for granting summary judgment created by s.17A and r.13.10 should be understood as requiring an inquiry that is different from that which had to be made under earlier regimes or by application of the tests applied in the United Kingdom or United States: see Spencer v The Commonwealth (2010) 241 CLR 118, [56]-[57] (Hayne, Crennan, Kiefel, Bell JJ) (“Spencer”).
It should, however, be recognised that the power conferred by these provisions is a power conferred on a court: Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421.
The power to grant summary judgment is expressed in permissive terms; the Court may give judgment and order that it be dismissed generally or in relation to any claim. Critically, the power is not engaged unless the Court is satisfied that the party prosecuting the proceeding or claim has no reasonable prospect of successfully prosecuting the proceeding or claim. What then is the content of the criterion no reasonable prospect?
In Spencer, French CJ and Gummow J emphasised that a practical judgment was required as to whether the applicant had a more than fanciful prospect of success. Their Honours distinguished between cases where the issues capable of being disputed were purely factual in nature, those where the issues were of mixed fact and law and those which raised an issue of law alone. Importantly, it is not sufficient that the Court has formed a view that the claim is unlikely to succeed: (2010) 241 CLR 118, [25]-[26]. That is not the test.
The plurality in Spencer cautioned against the use of alternative terms in substitution for the text that was used in the provision: no reasonable prospect. Thus, their Honours observed that the application of labels such a ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ (whether with or without ‘intensifying epithets such as ‘clearly’, ‘manifestly’, or ‘obviously’), were neither a sufficient nor complete description of the content of the phrase “no reasonable prospect” when employed in provisions conferring power to grant summary judgment. It was in this context that their Honours emphasised that “full attention must be given to the expression as a whole”: (2010) 241 CLR 118, [59].
The reasoning of the plurality is important for a further reason. Their Honours emphasised that the statutory power then under consideration should be informed by other considerations, including that: (1) the elucidation of what amounted to “no reasonable prospect” should best proceed through a succession of the decided cases; (2) at that point in the development of an understanding of the expression “no reasonable prospect” and its application to a power to grant summary judgment, it was both sufficient and important:
“. . . to emphasise that the evident legislative purpose as revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.” : (2010) 241 CLR 118, [60].
It is then appropriate to examine some of the decided cases.
The respondents distilled a series of propositions from the judgment of Sundberg J in Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499. The reasoning serves to illustrate the essentially predictive nature of the assessment that is required in the determination of an application for summary judgment by reference to the causes of action and evidence relied upon. His Honour stated:
“The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) (Jefferson Ford). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed:
·In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28](Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
·In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford167 FCR at [73] (Rares J) and [130] (Gordon J).
·The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).
·As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).
·Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced: see Jefferson Ford 167 FCR at [126] (Gordon J).”
[2009] FCA 499, [38]. See also George Fletcher (Trustee) [2010] FCAFC 53, [74]-[76] (Ryan and Logan JJ); J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581, [8] (Pagone J); Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192, [26] (Markovic J) which confirm that, for the purposes of an application for summary judgment, it is permissible to look beyond the pleading and consider affidavits and other evidence.
More recently in Upaid Systems Ltd v Telstra Corporation Limited[2016] FCAFC 158, (Perram, Jagot and Beach JJ) considered the relevant principles not to be in doubt and, in addition to referring to the principles enunciated by the plurality in Spencer, stated a series of further propositions, including the following:
a)first, a proceeding or claim need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success (s.31A(3));
b)second, s.31A(2) may justify summary dismissal where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification (citing Spencer at [22]);.
c)third, the exercise of power under s.31A(2) should be used with caution, particularly where complex questions of fact or law are involved.
See [2016] FCAFC 158, at [46]-[49]. The propositions stated above in Upaid Systems were recently endorsed by the Full Federal Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher, Moshinsky JJ).
Finally, as to the applicable principles, I note that an underlying purpose of the power conferred by s.17A is to reduce costs and delay. It is not uncommon that the issue and determination of an application for summary dismissal produces precisely the opposite result. Cost is increased and delay ensues. Allied to this is a further consideration that the application of the resources employed in the summary judgment application might instead have been directed toward the conduct of a final hearing of the proceeding: Sun v EP2 Management Pty Ltd [2016] FCCA 1381, [10], [40] (Smith J).
I apply those principles in determining this application.
The Legal Services Award 2010
The respondents’ application for summary dismissal of the proceeding essentially turned upon the applicant’s claim under the Award.
The respondents submit that the claim is unsustainable by reason that it depends upon the applicant being able to demonstrate that the Award applied to her work. They submit that the Award does not contain classifications for lawyers admitted to practice under a practising certificate. In support of the submission, reliance was placed upon the decision of Australian, Municipal, Administrative, Clerical Services Union Re Legal Services Award 2010 (2012) 237 IR 171. This decision is particularly instructive for the present application because the case concerned an application to vary the Award so as to expand the coverage it provided so that it would extend to lawyers. Kaufman SDP declined to extend the Award to provide coverage for lawyers who were admitted to practice, instead maintaining the position that the Award should provide coverage for law graduates and articled clerks.
In reaching that conclusion, Kaufman SDP examined how the Award had come into existence. The evolution of the Award included:
a)a statement issued by the Australian Industrial Relations Commission in 2009. The AIRC stated that it had published an exposure draft of the Award and that:
“The award will cover employees up to and including articled clerks/graduates at law. We have not included classifications for lawyers admitted to practice [sic]”
b)in Re Request from the Minister for Employment and Workplace Relations – 28 March 2008 [2009] AIRCFB 945, a Full Bench had again stated that:
“. . . we have decided to include law graduates but not lawyers admitted to practice [sic]”
c)that cogent reasons were required before departing from a previous Full Bench decision and in conclusion:
“The AWU has not made out its case that the coverage of the Award should extend to lawyers.”
See (2012) 237 IR 171, [2], [21], [22], [41]-[46]. The decision appears not to have been considered since.
For the purposes of this submission I shall assume, without deciding, that the applicant was an employee of the first respondent (although in doing so, I recognise that this is an issue in contest in the proceeding). It is convenient to adopt that assumption because its adoption serves to bypass any issue whether the Award applies to independent contractors.
The matter then can be tested on an assumption favourable to the applicant of the truth of the allegations in her SoC at [1]-[10] as above.
As noted above, paragraphs [1]-[10] of the SoC confirm that the allegations as earlier formulated in the Claim and repeated in the Amended Claim were advanced on the basis that the applicant was a qualified lawyer, that employment had been advertised for a lawyer, that she had been offered, and accepted, employment as a lawyer and that she had commenced work and acted in that capacity. At all material times, the applicant was admitted to practice. She held a practising certificate throughout the period of her work with the first respondent. In combination those matters undermine a conclusion that the applicant worked for the first respondent as a Level 3 Clerical and Administrative employee or that her work was covered by the Award.
Applying Australian, Municipal, Administrative, Clerical Services Union Re Legal Services Award 2010, it cannot be concluded that the applicant has a reasonable prospect of prosecuting a claim that the Award provided coverage for lawyers who were admitted to practise.
Adopting the caution required in applications of this kind, the matters above support a conclusion that the applicant has no reasonable prospect of prosecuting this claim insofar as it depends upon the Award to provide coverage for lawyers who were admitted to practise.
I turn then to identify those claims which rely upon the Award.
Non-payment of wages - $2,325.08
In the SoC, under the heading “Non-payment of wages” are a series of allegations in [23]-[33], [39(a), (b) & (d)] which terminate in a contention that the applicant is entitled to payment for wages not paid to her for the period 15 November to 26 November 2014 inclusive.
As noted above, the applicant decided to abandon all claims pursuant to her invoices and to press claims which, as pleaded, depend upon her classification and were “based on the minimum wage for a Level 3 Legal Clerical and Administrative employee under the . . . Award.”
Applying the holding in Australian, Municipal, Administrative, Clerical Services Union Re Legal Services Award 2010, on the pleaded facts and other materials referred to above, I conclude that the applicant’s claim for non-payment of wages under that Award has no reasonable prospect of success. It should be dismissed.
Had I concluded that this claim ought not be dismissed on the basis set out above, I would not have acceded to the respondents’ further submission that this claim be dismissed on the ground that its MYOB records demonstrated conclusively that the applicant had been paid a sum greater than the claim now being made. It is clear that the applicant has made an admission that she made a ‘clerical mistake’ in the calculation of her original claim.
Whatever might be said of the quantification of this claim, this is a matter that I would have left for trial.
Superannuation - $220
The claims in the SoC at [20], [28]-[32] and [34] also depend upon the Award as the source of an alleged entitlement to superannuation: see [28] of the SoC.
For the reasons given in relation to the claim for non-payment of wages, I also hold that the claim for superannuation contributions under that Award has no reasonable prospect of success. It too should be dismissed.
Had I concluded that the claim for superannuation contributions claim ought not be dismissed as not being covered by the Award, I would not have acceded to the respondents’ submission that the MYOB records demonstrated conclusively that a sum greater than this claim had already been paid. The superannuation claim is also complicated by the applicant’s decision to abandon her claims based on her invoices. The complexity of the facts and legal issues surrounding this claim is such that I would have been obliged to let it go forward to trial.
Breach of s.45 of Fair Work Act
The claim alleged in the SoC at [34] is for breach of s.45 of the Fair Work Act 2009 (Cth). A central element of a cause of action for breach of s.45 is that there has been the contravention of a modern Award. For the reasons given in relation to the claim for non-payment of wages, I also hold that the claim for breach of s.45 has no reasonable prospect of success and should be dismissed.
Breach of ss.357 & 550 – Penalties
The claims in the SoC at [7(d)-(e)], [18]-[22], [40(a)] do not depend upon the Award. This claim apparently turns upon a claim that the applicant was not an independent contractor but an employee. While the applicant referred me to Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, it is not necessary that I examine that authority.
I cannot conclude that the claim for contravention of sub-s.357(1) has no reasonable prospect of success. It should go forward to trial.
The note to sub-s. 357(1) states that it is a civil remedy provision. Sub-section 550(1) provides that a person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. My conclusion that the claim against the first respondent for contravention of sub-s.357(1) should go forward carries with in a conclusion that the claim against the second respondent under s.550(1) also be allowed to go forward.
The claims in the SoC at [7(d)-(e)], [18]-[22], [40(a)] are self-evidently complex from both a legal and factual perspective. On the principles stated above, and in the present circumstances, the applicant is entitled to have them not determined summarily.
Hurt and Distress
The claims in the SoC at [36]-[38] & [40(b)] do not depend upon the Award as the source of an alleged entitlement to general damages. This claim is grounded upon an email, a copy of which was annexed to the claim and the amended claim. It was written by the second respondent, apparently in response to a letter of demand.
This claim did not receive detailed attention in the course of the hearing. The respondents’ written submissions stated that “as the applicant is not entitled to an award of compensation under the [Act], she is not entitled to be awarded compensation for hurt and humiliation”. This submission begged the question. Should a contravention of s.357 of the Fair Work Act be made out, this would engage the operation of s.545. Sub-section 545(1) relevantly provides that this Court may make any order it considers appropriate once satisfied that a person has contravened a civil remedy provision. As noted above sub-s.550(1) is such a provision. Sub-section 545(1)(b) provides that this Court may make an order awarding compensation.
It follows that if a contravention of sub-s.550(1) is established the Court may make an order awarding compensation. A wider question is whether an award by way of compensation for hurt and distress is one that the Court would make in all the circumstances. I note that the availability of compensation for hurt and distress was considered in some detail in Dafallah v Fair Work Commission and Anor [2014] FCA 328 (2014) 225 FCR 559, [145]-[161], [179]. The careful analysis of Mortimer J in that matter identifies that; (1) the award of compensation under the Act is discretionary; (2) the governing consideration is that the Court should award such compensation as it considers ‘appropriate’; (3) less than full compensation may be appropriate.
A principal task in the determination whether it be appropriate to award compensation is whether a causal connection is established between the contravention and the loss claimed. Relevant to that consideration is whether the parties’ contract would otherwise have been brought to an end lawfully by the first respondent. This is relevant because compensation under s.545(1) is limited to the loss caused by the contravention, but may include an allowance for non-economic loss where some tangible emotional upset is established. This is a fact intensive question: Dafallah (2014) 225 FCR 559, [159], [161], [179].
In this matter, the applicant’s case is that she resigned without notice. It is far from apparent to me what loss was caused in the present case by any contravention of s.550 of the Fair Work Act 2009 (Cth). Nor is it apparent to me what compensation, if any, would be appropriate in such a case.
I note in relation to the claim for damages for hurt and distress the observations of French CJ and Gummow J in Spencer that it is not sufficient that I form a view that this claim is unlikely to succeed. On the state of the authorities concerning summary judgment, I cannot conclude that this claim has no reasonable prospect of success.
Conclusion
The result is that the pleaded claims which depend upon the Applicant having coverage under the Award are dismissed.
The claim for contravention of s.357, and the associated claim under s.550, of the Fair Work Act 2009 (Cth) together with the claim for hurt and distress do not have no “reasonable prospect of success” and may, at this stage, go forward for trial.
In those circumstances. I have made orders directing the filing of a defence and any reply. Otherwise the orders of this Court made on 16 December 2016 will operate according to their terms.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 9 March 2017
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