Homes v Australian Carers Pty Ltd (No 2)

[2023] FedCFamC2G 714

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714  

File number(s):

ADG 131 of 2022

Judgment of:

JUDGE LUCEV

Date of judgment:

11 August 2023 

Catchwords:

 FAIR WORK – whether contravention of general protections – whether workplace rights in relation to alleged discrimination, bullying and harassment – whether psychiatric injury – whether duties at classification level claimed - whether underpayment of overtime, on call and travel allowances – whether no case to answer

PRACTICE AND PROCDURE – No case to answer submission – whether election required

WORDS AND PHRASES – “authorised overtime”

Legislation:

Fair Work Act 2009 (Cth) ss 12, 341, 789FF

Federal Circuit and Family Court of Australia Act 2021 (Cth) Ch 4, ss 7, 174, 217, 361

Industrial Relations Act 1988 (Cth)

Work Health and Safety Act 2011 (Cth) ss 19, 28

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) r 17.01

Cases cited:

Askaro v Leading Synthetics Pty Ltd [2014] FCCA 2081; (2014) 291 FLR 260

Australian Competition & Consumer Commission v Amcor Printing Papers Group Ltd & Ors [2000] FCA 17; (2000) 169 ALR 344

Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (2011) 213 1R 32; [2011] FCA 1001

Barnett v Territory Insurance Office [2011] FCA 968; (2011) 196 FCR 116; (2011) 211 IR 439; (2011) 63 AILR 101-444

Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292; (2008) 170 FCR 357; (2008) 175 IR 357

Chief Commissioner of Police v Kerly [2008] FCAFC 41; (2008) 171 IR 420

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46; (2019) 285 IR 290

Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169; (2014) 88 ALJR 814; (2014) 312 ALR 356; (2014) 244 IR 425

Fortron Automotive Treatments Pty Ltd v Jones & Ors [2008] FMCA 622; (2008) 222 FLR 1

Gillespie v Ford (1978) 46 FLR 297; (1978) 19 ALR 102

Goodrem v The Commissioner for Public Employment [2023] FWC 666

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kelly v Atanaskovic Hartnell Corporate Services Pty Lyd (No 2) [2022] FedCFamC2G 112

Logan v Otis Elevator Co Pty Ltd [2001] IRCA 1; (2001) 107 IR 253

Mullan v Calold (WA) Pty Ltd trading as Harcourts Kalamunda [2023] FedCFamC2G 404

O’Connor v The Commissioner for Public Employment [2022] FWC 1400

Polan v Goulburn Valley Health [2016] FCA 440

Ponraj v Wycom Services [2023] FCA 118

Protean (Holdings) Ltd (Receivers and Managers appointed) & Ors v American Home Assurance Co [1985] VicRp 18; [1985] VR 187

Rasomen Pty Ltd (t/as Shell Fairview Park) v Shell Company of Australia Ltd (1997) 75 FCR 216

Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54

Scotto v Scala Bros Pty Ltd [2014] FCCA 2374

Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 240 IR 440; (2015) 321 ALR 305

Tru Floor Service Pty ltd v Jenkins (No 2) [2006] FCA 632; (2006) 232 ALR 532

Tullet v Yourtown Pty Ltd [2023] FedCFamC2G 120

Wang v Scats and Anor [2018] FCCA 2426

White v Mrs Murphy's Country Fried Chicken Pty Ltd (1984) AR (NSW) 794

Wijethunge v Australian Rail Track Corporation Limited (No 2) [2016] FCCA 3014

Division:

Division 2 General Federal Law

Number of paragraphs:

67

Date of last submission/s:

31 May 2023

Date of hearing:

29, 30 and 31 May 2023

 Place:

Adelaide

Counsel for the Applicant:

Mr R Manuel

Solicitor for the Applicant:

RSA Law

Counsel for the Respondents:

Mr S Richter

Solicitor for the Respondents:

WBH Legal

ORDERS

ADG 131 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CHARMAINE HOMES

Applicant

AND:

AUSTRALIAN CARERS PTY LTD

First Respondent

REGINALD MALCOLM VITNELL

Second Respondent

order made by:	JUDGE LUCEV
DATE OF ORDER:	11 august 2023

THE COURT DECLARES THAT:

1.The Respondents have no case to answer with respect to the claims made by the Applicant in the Amended Statement of Claim filed 5 May 2023 that:

(a)she had a workplace right to expect compliance with the discrimination and bullying provisions of the Fair Work Act 2009 (Cth);

(b)she had a workplace right to be afforded natural justice, or alternatively procedural fairness, in respect of any allegations against her;

(c)that she had a workplace right to work from home;

(d)she suffered a psychiatric injury;

(e)her duties were those of a Level 4 Social and Community Services Employee under the Social, Community, Home Care and Disability Services Industry Award 2010 (“Award”), and that she was entitled to wages, overtime, statutory allowances and allowances calculated at the rate of pay for a Level 4 employee under the Award;

(f)for payment:

(i)of on-call allowance for six weekends claimed;

(ii)for overtime whilst working on-call, other than on the weekends of 19-21 November 2021 and 3-5 December 2021; and

(iii)for overtime for the trip to Yorketown on the weekend on 19-21 November 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

NO CASE TO ANSWER APPLICATION

1. At the hearing on 31 May 2023 the Respondents, Australian Carers Pty Ltd (“Australian Carers”) and Reginald Malcolm Vitrell (“Mr Vitrell”) (together “Respondents”) made an oral application upon the close of the case for the Applicant, Charmaine Homes (“Ms Homes”), that there was no case to answer with respect to certain aspects of the Amended Statement of Claim (“ASOC”) filed 5 May 2023.

2. The ASOC seeks various orders, which, in essence, are:

   (a)orders under the Fair Work Act 2009 (Cth) (“FW Act”) with respect to alleged adverse action giving rise to alleged contraventions of general protections by the Respondents in relation to Ms Homes; 

   (b)an order with respect to alleged failure to provide a Fair Work Information Statement as required by the FW Act;

   (c)orders with respect to alleged underpayments of entitlements;  and

   (d)pecuniary penalties arising in relation to the alleged contraventions of the FW Act.

   POWER AND RELEVANT LEGAL PRINCIPLES – NO CASE TO ANSWER

   Power

3. Section 174(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) expressly provides that the practice and procedure of this Court “is to be in accordance with the Rules of Court ... subject to any provision made by or under [the FCFCOA Act] or any other Act with respect to practice and procedure.” The Rules of Court are made under Ch 4 of the FCFCOA Act by the Judges of the Court, or a majority of them: FCFCOA Act, ss 7(1)(definition of “Rules of Court”) and 217(1).

4. Rule 17.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) provides that:

   The Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.

5. Section 174 of the FCFCOA Act and r 17.01 of the GFL Rules prescribe the procedure for this Court in relation to a judgment arising from a no case to answer submission, and when read together with s 217(2) of the FCFCOA Act, provide the source of power for the Court to make a judgment in relation to a no case to answer submission, and to deal with all matters incidental thereto (which must include the question of whether an election is or is not made by the party moving the no case to answer submission as to whether to call evidence): Fortron Automotive Treatments Pty Ltd v Jones & Ors [2008] FMCA 622; (2008) 222 FLR 1 at [46]-[48] per Lucev FM.

   Generally applicable principles

6. In determining a no case submission the Court must consider its ultimate aim to be the attainment of justice: Rasomen Pty Ltd (t/as Shell Fairview Park) v Shell Company of Australia Ltd (1997) 75 FCR 216 at 224 per von Doussa, Drummond and Finn JJ (“Rasomen”); Australian Competition & Consumer Commission v Amcor Printing Papers Group Ltd & Ors [2000] FCA 17; (2000) 169 ALR 344 at [62] per Sackville J (“Amcor Printing”).

7. In Protean (Holdings) Ltd (Receivers and Managers appointed) & Ors v American Home Assurance Co [1985] VicRp 18; [1985] VR 187 (“Protean Holdings”) it was said that where a no case to answer submission was entertained without requiring election, three results might ensue. First, that the evidence can sustain a finding against the party making the no case submission, in which case the submission is overruled and the case allowed to proceed. Second, that the case is so finely balanced that the presiding judicial officer is not satisfied that even if the evidence can sustain a finding against the party making the no case submission that the presiding judicial officer is prepared to make the necessary finding, and in those circumstances the no case submission is overruled and the case allowed to proceed. The third possible result is that the submission of no case to answer is persuasive and is upheld: Protean Holdings at 215 per Young CJ.

8. In reaching a conclusion that a no case submission ought to be upheld, a court is entitled to draw all proper inferences from the evidence, but is not entitled to draw inferences against the party making the no case submission based upon absence of evidence from the moving party. This entails a conclusion that the evidence could not sustain a finding against the party making the no case submission, and that judgment must be entered for that party because the other party has not discharged the burden of establishing the case. In this sense the third possibility requires the Court, to ask whether it, on the evidence given, would decide for the party against whom the submission is made: Protean Holdings at 215 per Young CJ, citing in respect of the third possible result Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 330-331 per Windeyer J.

9. In an often cited passage in Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 at 68 per Perry J, and cited in Amcor Printing at [63] per Sackville J, four situations in which a submission of no case to answer might be made were identified as follows:

   (a)where no reference at all to the evidence is required;

   (b)where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action;

   (c)where it is argued that on a consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the causes of action pleaded; and

   (d)the situation where it is contended that although there is some evidence to support the plaintiff's claim, it is so weak and unreliable that it should be dismissed without calling upon the defendant.

   Election

10. In Rasomen a challenge to the trial judge’s exercise of discretion in not requiring the respondent to elect because the respondent had gone into evidence, by tendering exhibits, failed: at 224-226 von Doussa, Drummond and Finn JJ.

11. In Rasomen the Full Court of the Federal Court of Australia said at 225 per von Doussa, Drummond and Finn JJ that:

    There is no general rule that requires that a party seeking to make a submission of no case must elect to adduce no further evidence if some evidence has already been led, or if exhibits have been tendered during cross-examination. In a particular case, the fact that the respondent has taken steps of this kind will be one of the circumstances to be taken into account in the exercise of the discretion.

12. Rasomen was followed in this regard in Tru Floor Service Pty ltd v Jenkins (No 2) [2006] FCA 632; (2006) 232 ALR 532 at [16] per Sundberg J. In Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292; (2008) 170 FCR 357; (2008) 175 IR 357 at [17] per Kenny J, the Federal Court having referred to Rasomen at 223 per von Doussa, Drummond and Finn JJ, for the proposition that the general rule is that a decision will not be given on a submission of no case to answer unless the moving party elects to call no evidence, went on to observe that the “judge hearing the submission has a discretion to depart from this general rule, however, where the particular circumstances warrant it”.

13. In this matter the Court determined that it would not require the Respondents to make a no case to answer election. The Court did so because the Respondents have effectively already gone into evidence on a substantial number of issues, having tendered twenty-three exhibits dealing with many aspects of the matter, including, but not limited to:

    (a)Ms Homes working relationship with Mr Vitnell, and with her supervisor Ms Grantham, the exhibits including various SMS and texts, relevant to the alleged issues of discrimination, bullying and harassment;

    (b)the relevant industrial award – the Social, Community, Home Care and Disability Services Industry Award 2010 (“Award”) - and associated wage determinations, relevant to the issue of alleged underpayment of entitlements, namely  overtime, on call and travel allowances, and whether Ms Homes duties were at the classification level claimed;

    (c)Ms Homes personal diary and activity logs for the period of her employment at Australian Carers, relevant to the issue of alleged underpayment of entitlements, namely  overtime, on call and travel allowances; and

    (d)various on-call records, relevant to the alleged underpayment of on-call allowance and associated overtime.

14. Effectively, by reason of the substance and volume of the exhibits tendered by the Respondents, the Respondents have largely set out their evidentiary case, and the Court, in the exercise of its discretion, considered that, to the extent that the no case to answer case might not succeed, it would be unjust to preclude the Respondents from putting further evidence and finalising a case which is already effectively part put. In making this finding, and in dealing with the specific no case to answer submissions below, the Court has had regard to the fact that, with respect to alleged contraventions of general protections it is necessary, notwithstanding s 361 of the FW Act, for an employee making an allegation that adverse action was taken “because” of a particular circumstance to establish the existence of the circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 240 IR 440; (2015) 321 ALR 305 at [119] per Jessup J (with whom Allsop CJ and White J agreed).

    CONSIDERATION AND NO CASE TO ANSWER SUBMISSIONS

    Workplace rights and the ASOC

15. Section 341 of the FW Act deals with when a person has workplace rights, and provides as follows:

    (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.

    (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 the FWC;

    (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.

    (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.

    (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 or 6-3A (which deal with transfer of business).

16. The Respondents submitted that the claimed workplace rights at [9.1A], [9.1B], [9.1], [9.2], [9.3] and [9.4] of the ASOC are not workplace rights as contemplated by s 341 of the FW Act. In summary, these paragraphs of the ASOC assert that Ms Homes had the following workplace rights:

    (a)to make an inquiry or complaint to Australian Carers under s 341 of the FW Act: [9.1A];

    (b)not to be discriminated against, bullied or harassed at work, and to expect compliance with the discrimination and bullying provisions of the FW Act: [9.1B];

    (c)to be provided with a safe place of work by Australian Carers under the provisions of the Work Health and Safety Act 2011 (Cth) (“WHS Act”), including that Ms Homes not be bullied, harassed or discriminate against: [9.1];

    (d)that Australian Carers comply with its duty of good faith towards Ms Homes, including that she not be bullied, harassed or discriminated against: [9.2];

    (e)that the Respondents comply with the terms of Ms Homes employment contract: [9.3]; and

    (f)to be afforded natural justice, or alternatively procedural fairness, in respect of any allegations against her: [9.4].

17. There is no doubt that Ms Homes had a workplace right to:

    (a)to make an inquiry or complaint to Australian Carers under s 341(1)(c) of the FW Act: ASOC at  [9.1A]; and

    (b)to be provided with a safe place of work by Australian Carers under the provisions of the WHS Act under s 19 of the WHS Act, including that she not be bullied, harassed or discriminated against: ASOC at [9.1], that being a workplace right under s 341(1)(a) of the FW Act because the right to a safe workplace is a workplace benefit under a “workplace law”, the WHS Act being a “workplace law” as defined in sub-para (d) of the definition thereof in s 12 of the FW Act, and further because under s 28 of the WHS Act Ms Homes had a responsibility for her own health and safety. There are a number of decisions of this Court and the Federal Court providing that a workplace right to a safe workplace arises by reason of workplace health and safety legislation: see, for example, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (2011) 213 1R 32; [2011] FCA 1001 at [56]-[57] per Dodd-Streeton J; Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954 at [112] per Judge Lucev; Kelly v Atanaskovic Hartnell Corporate Services Pty Lyd (No 2) [2022] FedCFamC2 112 at [267]-[274] per Judge Driver; Mullan v Calold (WA) Pty Ltd trading as Harcourts Kalamunda [2023] FedCFamC2G 404 at [76]-[78] per Judge Ladhams.

1. In relation to the alleged workplace right to expect compliance with the discrimination and bullying provisions of the FW Act: ASOC at [9.1B], there is no such right until such time as an order is made under s 789FF of the FW Act, and then the workplace right is to prevent a repetition of the bullying, not to prevent bullying in the first instance (which is what appears to be alleged here). In Tullet v Yourtown Pty Ltd [2023] FedCFamC2G 120 at [63] per Judge Brown the Court said:

   In this context, it needs to be pointed out that the Act does not specifically provide a right not to be bullied.  It provides remedies distinct from those provided by Part 3-1 to apply for a cessation order in respect of bullying, whilst the complaint [sic – complainant] of bullying remains employed.

2. It follows that the workplace right to expect compliance with the discrimination and bullying provisions of the FW Act only arises following the making of a cessation order in respect of bullying. There is no such order in evidence in these proceedings, and therefore Ms Homes has, on the evidence of this matter, no workplace right to expect compliance with the discrimination and bullying provisions of the FW Act. The Respondents therefore have no case to answer in this respect.

3. Insofar as Ms Homes alleges that she has a workplace right that:

   (a)Australian Carers comply with its duty of good faith towards Ms Homes, including that she not be bullied, harassed or discriminated against: ASOC at [9.2]; and

   (b)the Respondents comply with the terms of Ms Homes employment contract: ASOC at [9.3],

   because the duty of good faith under Ms Homes employment contract arguably is implied at common law (“arguably” because post Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169; (2014) 88 ALJR 814; (2014) 312 ALR 356; (2014) 244 IR 425, there must be some doubt as to the scope of a mutually implied duty of good faith: see Sappideen, C et al, Macken’s Law of Employment (9th ed, Thomson Reuters (Professional) Australia Limited, Pyrmont, 2022 p 187), and compliance with the terms of the employment contract are not “a workplace law, workplace instrument or order made by an industrial body” under s 341(1)(a) and (b) of the FW Act: Barnett v Territory Insurance Office [2011] FCA 968; (2011) 196 FCR 116; (2011) 211 IR 439; (2011) 63 AILR 101-444. These matters might, however, be the basis for an alleged complaint or inquiry under s 341(1)(c) of the FW Act given that they are or may be contractual entitlements which if breached, or possibly breached, or in respect of which there is a threat of breach, might give rise to a workplace right, but only in that limited respect under s 341(1)(c) of the FW Act: Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46; (2019) 285 IR 290 (“Cigarette & Gift Warehouse”) at [28] per Greenwood, Logan and Derrington JJ.

4. The assertion that there is a workplace right to be afforded natural justice, or alternatively procedural fairness, in respect of any allegations against her: ASOC at [9.4], is not something which appears to be asserted on the basis of “a workplace law, workplace instrument or order made by an industrial body” under s 341(1)(a) and (b) of the FW Act. Nor, it appears, is it asserted that the alleged workplace right to be afforded natural justice, or alternatively procedural fairness, in respect of any allegations against Ms Homes is a contractual entitlement under Ms Homes employment contract, or to have some other “source of entitlement, whether instrumental or otherwise”: Cigarette & Gift Warehouse at [28] per Greenwood, Logan and Derrington JJ. In the circumstances it cannot therefore be a workplace right as alleged, and therefore the Respondents have no case to answer in respect of the alleged workplace right to be afforded natural justice, or alternatively procedural fairness, in respect of any allegations against Ms Homes.

5. Insofar as Ms Homes alleged that she was discriminated against, bullied or harassed, by reason of a refusal of her request to work from home there is nothing in this case which establishes that Ms Homes had either a legislative or a contractual right to work from home, and the cases do not support a general right or entitlement in an employee to provide their services from home at their election: see Ponraj v Wycom Services [2023] FCA 118; Wang v Scats and Anor [2018] FCCA 2426. Further, merely because her supervisor Ms Grantham was permitted to work from home it does not follow that Ms Homes was permitted to work from home, or had a right or entitlement to do so. Ms Grantham was her supervisor, and somebody who was working at a different level doing a different job with a different level of experience, and for that reason the Respondents were entitled to treat her differently when it came to working from home: O’Connor v The Commissioner for Public Employment [2022] FWC 1400; Goodrem v The Commissioner for Public Employment [2023] FWC 666 at [105] per Asbury DP.

6. The evidence also does not establish that any alleged complaint or inquiry made by Ms Homes was made to the Respondents, or an officer of the Respondents, with respect to not being able to work from home, was made to a person who had the power to do something about it. The complaint was not made to either Mr Vitnell, or to Ms Grantham who was Ms Homes’ supervisor. Any such complaint or inquiry was therefore not a complaint or inquiry giving rise to a workplace right for the purposes of s 341(1)(c) of the FW Act. The evidence also indicates that there is nothing to ground the allegation of bullying, harassment or discrimination in relation to the refusal to allow Ms Homes to work from home. As indicated above there was no entitlement to do so, and Australian Carers, consistent with the fact that there was no such right, refused to allow Ms Homes to work from home commencing on 10 January 2022. Furthermore, and critically, by the time of the meeting with Mr Vitrell on 18 January 2022 working from home was no longer an issue. Therefore, there is no case to answer with respect to any alleged workplace right to work from home.

7. It does not however follow from what the Court has said above that there is no case to answer with respect to claims, including what are seemingly common law claims, that there was discriminatory, bullying or harassing behaviour in relation to the conduct of the Respondents in dealing with Ms Homes request to work from home and the conduct of the meeting on 18 January 2022. Just because the issue of Ms Homes working from home was “done and dusted” by 18 January 2022 does not mean that she was not bullied in relation to the events surrounding that issue, and there is some evidence of what might amount to an acrimonious exchange or exchanges, and possibly bullying or harassment, involving Ms Homes and the Respondents at the meeting on 18 January 2022. The Respondents assert that bullying cannot be a one-off disagreement, but the Court does not accept that submission. For the purposes of a workplace right, an employee is entitled not to be bullied, whether once, twice or dozens of times, and arguably has a workplace right not to be bullied as part of a right to a safe workplace under the WHS Act.

8. Whether or not Ms Homes has been bullied or harassed or discriminated against as alleged is a question of fact, and whether that gives rise to any of the claimed remedies (save that there is no case to answer with respect to any alleged workplace right to work from home), are matters which the Court will have to determine.

   Claim of psychiatric injury

9. In the ASOC [39] Ms Homes alleges that she has suffered a “psychiatric injury” as a result of adverse action taken against her by the Respondents. That psychiatric injury is said to include:

   (a)helplessness and worthlessness;

   (b)insomnia and tiredness;

   (c)nervousness and restlessness;

   (d)distress, hurt and humiliation; and

   (e)depression and anxiety.

10. The Respondents assert that there is no evidence to support the allegation of harm by way of “psychiatric injury”, and note that there is no evidence from a doctor, psychologist or counsellor.

11. Ms Homes called no medical evidence, and there is no evidence whatsoever before the Court of her having any diagnosed psychiatric injury. It follows that Ms Homes cannot make out her claim of having suffered a “psychiatric injury”.

    Claim for payment at Level 4

12. At [41] and [42] of the ASOC Ms Homes claims that:

    (a)her duties were those of a Level 4 Social and Community Services Employee under the Award; and

    (b)she was entitled to be paid wages, overtime, statutory allowance and overtime as a Level 4 employee in accordance with the Award.

13. Under Sch B of the Award the pre-requisites for appointment to a position at a Level 4 are:

    (a)possession of a relevant four year degree with one years’ experience; or

    (b)a three year degree with two years relevant experience; or

    (c)an associated diploma with relevant experience; or

    (d)lesser formal qualifications with substantial years of relevant experience; or

    (e)attained through previous appointments, service and/or study, an equivalent level of expertise and experience to undertake a range of activities.  

14. Ms Homes evidence was that she did not have a relevant degree or diploma: Transcript, pp 129-130, and there was no evidence of any other qualification possessed by her, and the evidence did not establish that she had any relevant industry experience beyond her six months experience with Australian Carers. Ms Homes did not therefore meet the qualification or experience criteria for a Level 4 appointment under the Award.

15. It follows that there is no case to answer with respect to Ms Homes’ claims that:

    (a)her duties were those of a Level 4 Social and Community Services Employee under the Award; and

    (b)and that she was entitled to be paid at the Level 4 rate,  

    because she did not meet the pre-requisites for appointment to a Level 4 position under the Award. The Court notes that there is no claim for payment based on appointment at a different level under the Award.

    Claim for travel allowance

16. At [43] of the ASOC Ms Homes claims unpaid travel allowance for 6568 kilometres at the rate of 80 cents per kilometre, or $5254.40, pursuant to cl 20.5(a) of the Award.

17. Clause 20.5(a) of the Award provides that “[w]here an employee is required and authorised to use their motor vehicle in the course of their duties, they are entitled to be reimbursed” at a prescribed rate, in this case 80 cents per kilometre.

18. In oral submissions the respondents Counsel conceded certain aspects of the travel allowance claim: see, for example, Transcript, pp 71, 94, 98, 99, 104 and 106.  That in the Court’s view is sufficient to establish that, at least in part, there is a claim to be answered with respect to the travel allowance claim.  Otherwise, and notwithstanding the considerable number of concessions made in evidence by Ms Homes with respect to items of the travel allowance claim which were not work related, there are nevertheless areas where the evidence admits of a dispute over whether travel allowance was payable, including the following:

    (a)whether travel allowance was payable for attendance at BNI meetings, in circumstances where Ms Homes evidence indicates that she:

    (i)had negotiated with Australian Carers to continue to attend BNI meetings: Transcript, pp 77 and 103  (BNI is a business networking organisation of which Ms Homes was a member);

    (ii)did at least one presentation at BNI on Australian Carers which she alleged was of “benefit to the business” of Australian Carers: Transcript, p 77, and her attendance at BNI was about promoting the business of Australian Carers: Transcript, pp 78 and 113;

    (b)for attendance at appointments with clients close to her home in Mount Barker: Transcript, pp 79, 102, 105, 109, 110 and 117, and that sometimes such appointments would be in her diary and sometimes not: Transcript, pp 79 and 109;

    (c)for attendance at appointments with clients on the way to or from work: Transcript, p 96;

    (d)for attendance at non-BNI networking events that was expected as part of her role: Transcript, pp 111-112;

    (e)whether attendance on one or other of two visits to her brother’s place of business in Glenelg was for work purposes to repair a working relationship involving Australian Carers: Transcript, p 116; and

    (f)for telephone attendances on clients whilst travelling home: Transcript, p 106 (which might also give rise to overtime claims).

19. It is not the purpose of a no case to answer submission to have the Court make a ruling on the several dozen itemised travel claims which make up the travel allowance claim, and exclude, or make a no case to answer finding, in relation to those items which the evidence presently indicates may not have been successfully proven. In circumstances where some items of the travel allowance claim are proven (because they are conceded) and other items are disputed and the evidence is in contest, it is plain that there is a case to answer with respect to the travel allowance claim (even if some items within the claim might not have been proven).

    Claim for on call payment and overtime worked whilst on-call

20. At [44] of the ASOC Ms Homes claims to have not been paid on-call allowance as prescribed by cl 20.9 of the Award for time on-call between 2 August 2021 and 18 January 2022, being six Saturdays, six Sundays, six Fridays, and six Mondays, less $400 paid by Australian Carers for two weekends when it is conceded Ms Homes was on-call, for a total claim of $337.63. Essentially, the claim is for on-call for six weekends in total.

21. Clause 20.9 of the Award provides that an employee required to be on call will be paid an on-call allowance.

22. At [46] of the ASOC Ms Homes claims overtime for time worked on weekends whilst she was on-call, being 30 minutes on Fridays, and 4.5 hours on each Saturday and Sunday, for each of the six weekends.

23. There does not appear to be any dispute that Ms Homes was on-call for two weekends: 19-21 November 2021 and 3-5 December 2021, which were the two weekends for which she was paid $400 (and there is no dispute that this is considerably in excess of the amount she was entitled to under the Award as an on-call allowance).

24. There is no specific evidence from Ms Homes as to which other weekends she was on-call, and she was unable to give any indication at all as to which other four weekends she was on-call, and nothing was recorded in her diaries as to her being on-call: Transcript, p 194. She asserted that the weekends could be deduced from travel logs, but almost immediately conceded that the travel logs would not assist the Court in determining whether or not she was on call: Transcript, p 191, and later confirmed that: Transcript, p 195.

25. Ms Homes did assert that she was on call when she made a trip to Yorketown on the 19-21 November 2021 weekend, but conceded that she was not authorised by Australian Carers to go to Yorketown, and that she went to Yorketown because she wanted to go to Yorketown: Transcript pp191 and 193. The Court infers that the reason Ms Homes went to Yorketown was not for work, but to help a friend, whom she had known almost all her life, to fill out forms in relation to the National Disability Insurance Scheme. Whilst Ms Homes was well placed to do that because of the nature of her employment with Australian Carers, this was not a matter which was undertaken in the course of her employment.

26. Ms Homes evidence, taken at its highest, does not establish that she was on-call for any weekends other than the weekends of 19-21 November 2021 and 3-5 December 2021, and for those two weekends she was paid a sum of $400 which exceeds the amount she was entitled to under the Award by way of on-call allowance for those two weekends.

27. In the circumstances there is no case to answer with respect to the claims for payment:

    (a)of on-call allowance for six weekends;

    (b)for overtime whilst working on-call, other than on the weekends of 19-21 November 2021 and 3-5 December 2021; and

    (c)for overtime for the trip to Yorketown on the weekend on 19-21 November 2021.

28. The Court notes that there is some evidence that overtime may have been worked whilst Ms Homes was on-call on the weekends of 19-21 November 2021 and 3-5 December 2021 (other than for the trip to Yorketown), and so there is a case to answer with respect thereto.

    Claim for overtime

29. At [45] of the ASOC Ms Homes claims under cl 28.1(a)(ii) of the Award an amount of $3992.40 for time alleged to have been worked as overtime on regular weekdays between 2 August 2021 and 18 January 2022.

30. Under clause 28 of the Award an employee’s overtime is required to be “authorised overtime”.

31. In the former Industrial Relations Court of Australia (“IR Court”) in Logan v Otis Elevator Co Pty Ltd [2001] IRCA 1; (2001) 107 IR 253 (“Logan”) the applicant claimed that he was terminated in contravention of certain provisions of the Industrial Relations Act 1988 (Cth) and that his employer failed to pay him amounts for overtime and notice. The respondent argued that any overtime worked needed to be authorised, and that it was implicit in the relevant award clause that time worked which would attract the payment of penalty rates as overtime had to be expressly or impliedly authorised.

32. In Logan at [40] per Moore J the IR Court quoted from White v Mrs Murphy's Country Fried Chicken Pty Ltd (1984) AR (NSW) 794 at 801 per Macken J:

    No employee is entitled to the payment of overtime or penalty rates unless such overtime is authorised by an employer and self-authorisation of overtime by employees trusted to work alone or in responsible managerial positions has never been recognised by tribunals. Overtime under such circumstances is allowed only where it is expressly or impliedly authorised and it may be authorised by implication where the circumstances permit of no alternative.

    and then at [41] per Moore J observed that:

    These observations have been referred to with approval in at least three later authorities: Maciver v Hilton Nursing Home Pty Ltd, Wheatley v Armstrong [1995] NSWIRC 3 (Marks J) and Keft v Kameruka Estates Pty Ltd [1992] NSWIRC 16 (Bauer J). In Walkley v Dairyvale Co-operative Ltd (1972) 39 SAIR 327, Olsson J referred (at 359) to a similar principle deriving from a Western Australian decision, Caratti v Sullivan (1964) 44 WAIG 236.

33. In Logan the IR Court had to determine whether overtime was expressly or impliedly authorised: at [42] per Moore J. The IR Court found that there was no express authorisation for the applicant to work overtime, but found that when the applicant had commenced employment it was expected that the applicant would work at least up to 40 hours to complete his duties, and that whilst no one saw this as authorising overtime it did, impliedly, constitute an authorisation for the applicant to work up to about 40 hours: Logan at [43] per Moore J. Even if the parties did not at the time of the applicant’s commencing employment view these hours as including time which would attract penalty rates as overtime, the applicant had implied approval to work them, and with that approval came the obligation to pay the penalty rate arising from those hours being worked: Logan at [43] per Moore J.

34. In Chief Commissioner of Police v Kerly [2008] FCAFC 41; (2008) 171 IR 420 at [35] per Moore J (with whom Lander and Jessup JJ agreed) in relation to the authorisation of stand by entitling police officers to on-call allowance it was observed that:

    There is little room to doubt, in my opinion, that the word “authorised” in the context of an officer being on stand by, refers to the result of any process within the Police Force where, with the knowledge and approval of a supervising officer, the officer is designated as being on stand by.

1. In Askaro v Leading Synthetics Pty Ltd [2014] FCCA 2081; (2014) 291 FLR 260 (“Askaro”) the Court (then the Federal Circuit Court) dealt with a number of issues including a claim by the applicant that he was entitled to a higher rate of pay as he operated “mobile equipment” within the meaning of cl 21.1.3(c)(vii) of the relevant industrial award. The applicant claimed he drove the forklift on instruction from his supervisor, and that the plant manager instructed him to perform work which required a forklift, and that the manager also observed him operating the forklift. Having set out extracts from Logan, the Court had to determine if the applicant was “expressly or impliedly authorised to drive a forklift in the performance of his duties”: Askaro at [67] per Judge Jones. The Court found that although the employee was not instructed to drive a forklift by his manager, he was directed to do so by his supervisor, and that the supervisor was aware that he drove a forklift during rostered shifts, and had observed him doing on many occasions: Askaro at [69]-[70] per Judge Jones. In the circumstances, the Court was satisfied that the employee “was authorised, if not directly then impliedly” to drive a forklift: Askaro at [72] per Judge Jones.

2. In Scotto v Scala Bros Pty Ltd [2014] FCCA 2374 (“Scotto”) the applicant said that he worked six days a week, Mondays to Saturdays, and would typically arrive at work between 4 am and 4.30 am, at which point he and Mr Carrano (a director of the respondent employer) would get to the shop at which they worked ready for the start of trade at 5 am. The applicant said that on Fridays and Saturdays they would get to work at 4 am because those were their busiest days. The applicant said that in about 1993, after he had moved to Cremorne, Mr Carrano would pick him up from there and they would arrive at the shop at about 4.30 am, but that they arrived earlier on Mondays, Fridays and Saturdays: Scotto at [115] per Judge Cameron.

3. In Scotto at [367] per Judge Cameron, Mr Scotto submitted he was entitled to overtime:

   (a)before the commencement time prescribed in the relevant industrial award;

   (b)after the daily maximum number of hours was exceeded, usually nine or ten hours per day; and

   (c)after working thirty-eight or forty hours per week.

4. Mr Scotto submitted that his overtime had been authorised because he worked the same hours as Mr Carrano, who drove him to work for a large part of the relevant period. He submitted that there was no suggestion that Mr Carrano had objected to him being at work during the hours he worked and that even if Mr Carrano did not expressly direct that he work the hours he worked, the circumstances showed that he had impliedly authorised the overtime: Scotto at [374] per Judge Cameron.

5. The Court found at [382]-[383], [386] and [389] per Judge Cameron that:

   [382]…Even though I find that the shop opened at 5 am, some work would have been required before the shop could open, with the consequence that I accept that Mr Scotto’s work day must have started before 5 am, notwithstanding what the wages books might say…

   [383]Mr Scotto said that he arrived at work at between 4 am and 4.30 am but, even if that was so, I am not persuaded that he was engaged in work from that point. In that regard, even if he arrived earlier than necessary because Mr Carrano gave him a lift, that is an insufficient basis on which to claim overtime unless he was working from the point he arrived and I am not persuaded that he did…In my view, no more than twenty minutes’ work would have been required to set up the shop for the commencement of trade and, in all probability, less. I find that from Monday to Friday, Mr Scotto started work at 4.40 am.

   …

   [386]Again, shutting the shop would not necessarily mean the end of the day’s work and Mr Scotto deposed that he helped Mr Carrano close up at the end of the day and that this would take anywhere from thirty minutes to an hour. He deposed that it included packing away the outside tables and chairs, packing away the sandwich bar items, cleaning the coffee bar and mopping the shop…Even Mr Scotto’s evidence was that they started cleaning up the shop an hour before it closed, albeit he said they started cleaning at 3 pm and closed at 4 pm. I consider that there would have been about ten minutes’ work after the shop shut and thus that on weekdays Mr Scotto would generally finish work at 3.10 pm.

   …

   [389]I therefore find that Mr Scotto generally worked on weekdays from 4.40 am to 3.10 pm and on Saturdays from 5.40 am to 2.10 pm, with one hour for lunch each day, ie 9.5 hours per day during the week and 7.5 hours on Saturdays. I am satisfied that, in all likelihood, Mr Carrano at least implicitly authorised Mr Scotto to work those hours.

6. In Polan v Goulburn Valley Health [2016] FCA 440 the question arose as to whether employer authorisation for overtime can be implied and at [75] per Mortimer J the Federal Court said :

   However, the authorisation may be express or implied. It may be the result of an ongoing understanding or arrangement between the employer and the employee or it may be the result of a single event. Unlike the recall power, in my opinion the industrial instruments do not intend overtime to be confined to the issuing of a specific direction or instruction by an employer to an employee to perform duties on a specific occasion.

7. The Respondents referred to the judgment of this Court (then the Federal Circuit Court) in Wijethunge v Australian Rail Track Corporation Limited (No 2) [2016] FCCA 3014 (“Wijethunge”) where a claim for additional hours of work was rejected because it was as a result of the employee’s own decision, and not in response to any requirement of the employer that the employee undertake additional hours of work: Wijethunge at [115], [149], [156], [163] and [194]-[195] per Judge Brown. Wijethunge is restricted to its own facts, and does not deal with whether authority to work overtime might be implied.

8. The Court notes that, at least in general usage, there is a difference between being “authorised” and being “directed” to do something: Gillespie v Ford (1978) 46 FLR 297; (1978) 19 ALR 102, FLR at 304 per Forster CJ, the former being a broader concept than the latter, or the latter being a sub-set of the former.

9. It follows from the above cases that authorisation can be implied where:

   (a)the circumstances allow no alternative;

   (b)arising from the conduct of the employer, an employee has a legitimate expectation that overtime is to be worked, which can include a single instance of overtime worked; and

   (c)it is the result of an ongoing understanding or arrangement between the employer and the employee.

10. The Respondents submit that there have been significant concessions by Ms Homes that there was no permission or authorisation by the Respondents for her to work the overtime claimed. There were a considerable number of concessions made in evidence by Ms Homes with respect to items of the overtime claim which were either not work related or on which overtime was plainly not worked. There was however some evidence that Ms Homes worked late on occasion with Ms Grenfell, and it might be argued that on any such occasion the overtime was impliedly authorised, by conduct, understanding or arrangement.

11. The Respondents also submit that a large part of the overtime claim relates to going to BNI meetings on a Thursday morning and going to the BNI Christmas dinner. Ms Homes when questioned as to whether she was ever directed to go to BNI functions or the BNI Christmas dinner answered that she was not, and likewise that there was no authorisation for her to come into the Australian Carers’ office at 7.00 o’clock in the morning: Transcript, p 193. There is, however, some evidence, which, if taken at its highest, might provide a basis for authorisation or permission to attend BNI meetings or the BNI Christmas dinner, and if that time otherwise met the criteria for payment of overtime under the Award, may arguably constitute time worked as overtime. Further, there is some evidence that overtime may have been worked (other than for the trip to Yorketown) on the weekends of 19-21 November 2021 and 3-5 December 2021, and so there may be a case to answer with respect thereto.

12. It follows that there may be a case to answer with respect to some of the overtime claim. For the same reasons as those expressed at [36] above in relation to the travel allowance claim, it is not appropriate to dismiss particular items within the overtime claim on the basis of no case to answer (even if those particular items might not have been proven).

    Absorption clause

13. Clause 2.2 of the Award is what is commonly called an “absorption clause”, and it provides that “[t]he monetary obligations imposed on employers by this award may be absorbed into overaward payments” (“Absorption Clause”).

14. The Respondents submitted that applying the Absorption Clause “we are left with … a couple of hundred dollars here and there … and $792.41 for the mileage [travel allowance]”: Transcript, p 229, and that there should therefore be no relief awarded at all to Ms Homes. The submission is self-defeating as it demonstrates that there may be, in some respects, a case to answer. Further, and in any event, there was no sufficient submission as to the precise application of the Absorption Clause, by way of specific calculation of relevant amounts, such as would allow the Court to draw any definite conclusions with respect thereto.

    CONCLUSIONS AND DECLARATIONS

15. The Court has concluded that the Respondents have no case to answer with respect to Ms Homes’ claims:

    (a)that she had a workplace right to expect compliance with the discrimination and bullying provisions of the FW Act;

    (b)that she had a workplace right to be afforded natural justice, or alternatively procedural fairness, in respect of any allegations against her;

    (c)that she had a workplace right to work from home;

    (d)that she suffered a psychiatric injury;

    (e)that her duties were those of a Level 4 Social and Community Services Employee under the Award, and that she was entitled to wages, overtime, statutory allowances and allowances calculated at the rate of pay for a Level 4 employee under the Award;

    (f)for payment:

    (i)of on-call allowance for six weekends as claimed;

    (ii)for overtime whilst working on-call, other than on the weekends of 19-21 November 2021 and 3-5 December 2021; and

    (iii)for overtime for the trip to Yorketown on the weekend on 19-21 November 2021.

16. There will be a declaration accordingly.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       11 August 2023