Homes v Australian Carers Pty Ltd (No 3) - [2024] FedCFamC2G 128

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Homes v Australian Carers Pty Ltd (No 3) [2024] FedCFamC2G 128

File number(s): ADG 131 of 2022

Judgment of: JUDGE LUCEV

Date of judgment: 19 February 2024

Catchwords: PRACTICE AND PROCEDURE – Application for leave to file a Further Amended Statement of Claim following partially successful no case to answer application – new claim for mental and emotional harm where no case to answer on previous claim for psychiatric injury – revised claims for quantum of money for overtime and allowances based on revised claim for classification of employee at a particular wage level – whether employee meets criteria for classification at particular wage level – consideration of overarching civil practice and procedure provisions – case management considerations – whether proposed amendments will cause delay and additional expense – effect of proposed amendments on efficient disposal of Court’s caseload and resolution of disputes and disposal of proceedings in a timely manner.
INDUSTRIAL LAW – Whether contravention of general protections – whether workplace rights in relation to alleged discrimination, bullying and harassment – whether mental and emotional harm – whether duties at classification level claimed – whether underpayment of overtime, on call and travel allowances.

Legislation:
Fair Work Act 2009 (Cth) ss 545, 570

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190, 191, 192

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01

Federal Circuit Court Rules 2001 (Cth) r 7.01(1)

Federal Magistrates Court Rules 2001 (Cth) r 7.01(1)

Cases cited:
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14

Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924

Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987

Cleland v Skycity Adelaide Pty Ltd [2017] FCAFC 222

COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145; (2021) 365 FLR 1

Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309

Construction, Forestry, Mining and Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245

Dafallah v Fair Work Commission [2014] FCA 328; (2014) 242 IR 273; (2014) 225 FCR 559

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

Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711

Pietrobon v BMD Constructions Pty Ltd [2017] FCCA 1730

Reynolds v Harrier Group Pty Ltd [2023] FedCFamC2G 930

Robinson v Pilbara Iron Company (Services) Pty Ltd (No 2) [2023] FedCFamC2G 593; (2023) 326 IR 132

SZGTE v Minister for Immigration & Multicultural Affairs [2006] HCATrans 639

SZGTE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 443

SZSRR v Minister for Immigration and Border Protection [2017] FCA 328

Division: Division 2 General Federal Law

Number of paragraphs: 60

Date of last submission/s: 21 November 2023

Date of hearing: 21 November 2023

Place: Perth (heard by video-link to 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:

19 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The Applicant’s application in a proceeding filed 25 August 2023 to file a Further Amended Statement of Claim be granted, save for the proposed amendments to paragraphs 30B, 39, 41, 42 (but only as to the underlined words and numbers “3 and/or Level 2”), 45.2 and 46.2.4
2.Costs, if any, reserved.

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
INTRODUCTION

Before the Court is an application in a proceeding filed on 25 August 2023 by the applicant, Ms Homes, in which leave is sought to file and serve a Further Amended Statement of Claim (“Proposed FASOC”) in relation to her claims under the Fair Work Act 2009 (Cth) (“FW Act”) against the respondents, Australian Carers Pty Ltd (“Australian Carers”) and Mr Vitnell respectively (collectively “Respondents”). The application in a proceeding was supported by an affidavit of the same date of Ms Homes solicitor, MyChi Duong, who also filed two further affidavits on 5 and 20 November 2023, those two affidavits being in response to two affidavits filed on 1 and 3 November 2023 by the Respondents’ solicitor, Corinne Leah Armanini.
PROPOSED AMENDMENTS
Most of Ms Homes proposed amendments to the Proposed FASOC are not opposed by the Respondents, but some issues remain in dispute, namely whether leave to amend ought to be granted in respect of proposed claims for:
(a)mental and emotional harm;
(b)the classification level for Ms Homes duties; and
(c)underpayment of travel allowance and overtime (including on-call overtime).
LITIGATION HISTORY
It is convenient to set out the litigation history at the outset of these Reasons for Judgment as it is a significant part of the context which informs matters for consideration in relation to the proposed amendments in the Proposed FASOC.
The originating application was filed on 2 June 2022.
At a directions hearing on 1 December 2022 the matter was listed for a two day hearing on 29 and 30 May 2023.
On 5 May 2023 Ms Homes filed an Amended Statement of Claim (“ASOC”) pursuant to leave granted by the Court on 21 April 2023. The ASOC made significant amendments to the original Statement of Claim filed on 2 June 2022, and of particular relevance to the present application in a proceeding to file and serve the Proposed FASOC, the ASOC made claims that:
(a)Ms Homes was underpaid during on call shifts;
(b)Ms Homes 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 be paid wages, overtime, statutory entitlements and allowances as a Level 4 employee under various clauses in the Award;
(c)Australian Carers failed to make payment of travel allowances pursuant to cl 20.5(a) (misdescribed as cl 20.7(a) in the ASOC) of the Award in respect of Ms Homes’ travel to clients using her own motor vehicle;
(d)Australian Carers failed to pay Ms Homes an on-call allowance under cl 20.11 of the Award;
(e)Australian Carers failed to pay Ms Homes on account of overtime during regular weekday work as required by cl 28.1(a)(ii) of the Award;
(f)Australian Carers failed to pay Ms Homes wages at overtime rates for duties performed when she was required to perform those duties whilst on-call after 5.00pm on Friday evenings and before 6.00am on the Monday mornings in contravention of cl 26 of the Award; and
(g)Australian Carers failed to make payment of annual leave loading of 17.5% as required by cl 31.3 of the Award.
On 23 May 2023 Australian Carers filed an Amended Defence which denied liability in respect of most of the matters set out above.
The matter was heard on 29 and 30 May 2023 as listed, and went into a third day on 31 May 2023, at which time Ms Homes closed her case. At hearing on 29 May 2023 Australian Carers made an oral application to strike out various of the amendments in the ASOC. That application in a proceeding was dismissed at the hearing. When Ms Homes closed her case on 31 May 2023, a no case to answer submission was made by the Respondents. Judgment on the no case to answer submission was reserved.
On 1 August 2023 Ms Homes filed an application in a proceeding for discovery of certain documents. The application in a proceeding for discovery was dismissed in an ex tempore judgment delivered on 4 August 2023: Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711 (“Homes (No 1)”).
On 11 August 2023 judgment was published on the Respondents’ no case to answer application: Homes v Australian Carers Pty Ltd(No 2) [2023] FedCFamC2G 714 (“Homes (No 2)”). In Homes (No 2) at [66] per Judge Lucev the Court concluded that the Respondents had 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 had 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; and
(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 of 19-21 November 2021.
On 14 August 2023 Ms Homes filed an application in a proceeding which sought:
(a)leave to amend the ASOC to plead that Ms Homes duties were those of a Level 3, “alternatively” a Level 2, under the Award, and that she was entitled to wages, overtime, statutory allowances and allowances calculated at the rate of pay for a Level 3, alternatively a Level 2, employee under the Award; and
(b)the provision of certain specified documents referred to in affidavits filed on behalf of the Respondents.
At a directions hearing on 15 August 2023 the Court made orders in relation to Ms Homes’ application in a proceeding filed 14 August 2023 that:
(a)by 10:00am on 16 August 2023 Ms Homes file and serve a further ASOC amending paragraph 41 of the amended statement of claim to plead the words and numbers “Level 3, alternatively Level 2” in lieu of the words and numbers “Level 4” therein, and to make any consequential amendments to amounts otherwise claimed pursuant to the Award, but otherwise dismissing the application in a proceeding;
(b)costs, if any, be reserved; and
(c)Reasons for Judgment in relation to orders 1 and 2 be delivered as part of the Reasons for Judgment in relation to the originating application, and any further ASOC if filed in accordance with order 1.
The hearing of the matter was listed to resume for a further two days on 16 and 17 August 2023, but on 16 August 2023 Ms Homes’ instructing solicitor appeared on the resumption of the hearing and sought an adjournment on the basis of the illness of Counsel. It was also brought to the Court’s attention that the order of 15 August 2023 allowing for the filing by Ms Homes of a further ASOC amending paragraph 41 of the amended statement of claim to plead the words and numbers “Level 3, alternatively Level 2” in lieu of the words and numbers “Level 4” therein, and to make any consequential amendments to amounts otherwise claimed pursuant to the Award, had not been complied with. The Court granted an adjournment, and made orders that:
(a)the further hearing of the matter be adjourned to a date to be fixed;
(b)Ms Homes have liberty to apply on or before 25 August 2023 to file a further ASOC;
(c)in relation to the order for liberty to apply to file a further ASOC, the parties were to confer forthwith; and
(d)the costs, if any, of the adjourned hearing days on 16 and 17 August 2023, be reserved.
On 25 August 2023 Ms Homes filed the present application in a proceeding seeking leave to file and serve the Proposed FASOC, which was heard by the Court on 21 November 2023.
The matter is listed for a further two days of hearing on 7 and 8 March 2024.
LAW - LEAVE TO GRANT AMENDMENT
In considering whether to grant leave to allow the amendments proposed in the Proposed FASOC the Court must have regard to the overarching civil practice and procedure obligations under s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), which provides as follows:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)       according to law; and
(b)       as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)       the efficient disposal of the Court's overall caseload;
(d)       the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a)       the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Section 190 of the FCFCOA Act, read with ss 191 and 192 thereof, sets out the overarching purpose of civil practice and procedure provisions which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. A number of relevant important objectives are included therein, including:
(a)the efficient use of the judicial and administrative resources of the Court;
(b)efficient disposal of the Court's overall caseload; and
(c)disposal of all proceedings in a timely manner and the just resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
In COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145; (2021) 365 FLR 1 at [21] per Judge Lucev the Court observed that:
In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCOA Act, the Court also notes that it relates to the “just resolution of disputes”. The use of the plural “disputes” as opposed to the singular “dispute” is important. That is because the use of the plural “disputes” allows the Court to give consideration to the possible impact of a proposed course of action on other matters pending before the Court, and not just the “dispute” the subject of the matter immediately before it for hearing. Thus the Court may have regard, as it traditionally would have: Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, to the possible effect on other litigants … [of the grant of the indulgence sought].
The Court has power to amend a document pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”), which provides that:
(1)At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
(2)Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
Rule 7.01(1) of the GFL Rules (then r 7.01(1) of the Federal Magistrates Court Rules 2001 (Cth) but identically worded) has been described as a discretionary power which is “extensive” and capable of exercise at any stage of proceedings: SZGTE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 443 at [33]-[34] and [36] per Graham J (from which an application for special leave to appeal was refused by the High Court: SZGTE v Minister for Immigration & Multicultural Affairs [2006] HCATrans 639); Reynolds v Harrier Group Pty Ltd [2023] FedCFamC2G 930 at [40] per Judge Ladhams. In SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 (“SZSRR”) at [47]-[48] per Gleeson J the Federal Court (dealing with r 7.01(1) of the then Federal Circuit Court Rules 2001 (Cth) but still identically worded to r 7.01 of the GFL Rules) stated:
47At the outset, it is relevant to note that the question of prospects of success is not the only relevant consideration on an application of the kind made to the FCCA judge. The application was analogous to an application for leave to amend a document. Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) (“Circuit Court Rules”) empowers the FCCA to allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions that the Court thinks fit. Rule 1.06 of the Circuit Court Rules provides that the Court may in the interests of justice dispense with compliance with any of the Rules at any time. Thus, the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document.
48.Generally speaking, the exercise of the FCCA’s powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile …. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out …. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding ….
[Citations omitted].
In addition to consideration of the prospects of success of any proposed amendment: SZSRR at [47] per Gleeson J, considerations relevant to the exercise of the discretion to allow an amendment pursuant to what is now r 7.01 of the GFL Rules have been held to include:
(a)the nature and importance of the amendment to an applicant, and if it is in the interests of justice to grant leave to amend an application;
(b)whether the party seeking the amendment is acting in good faith and not unnecessarily delaying proceedings, and in particular if an explanation is to be given for any delay in making the amendment: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“AON Risk”) at [102] per Gummow, Hayne, Crennan, Kiefel and Bell JJ;
(c)whether any injustice, with particular focus on the stage in which the proceedings are at, cannot be adequately compensated for; and
(d)case management issues (with particular reference to AON Risk at [30] per French CJ and at [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
See Pietrobon v BMD Constructions Pty Ltd [2017] FCCA 1730; Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 at [27] per Judge Manousaridis; Robinson v Pilbara Iron Company (Services) Pty Ltd (No 2) [2023] FedCFamC2G 593; (2023) 326 IR 132 at [25] per Judge Lucev.
CONSIDERATION OF THE PROPOSED AMENDMENTS
Alleged mental and emotional harm

At [30B] of the Proposed FASOC Ms Homes alleges that she has been unable to secure long term or permanent employment, or “any employment at all”, following the cessation of her employment with Australian Carers on 18 January 2022. Proposed amendments to the particulars to the plea at [30B] of the Proposed FASOC are as follows:
30B.1 ~~The Applicant refers to the Injury she has suffered as pleaded below in paragraphs 39 to 39.5 inclusive therein and says the Injury has prevented her from working full time or at all.~~ On or about 25 January 2022, the Applicant commenced employment with Enhanced Lifestyle (“Post termination Employment”) as a support co-ordinator;
30B.2 During the Applicant's Post Termination Employment, she received professional psychological and counselling support for the mental and emotional harm pleaded below in paragraphs 39 to 39.5, which she suffered consequent on the Meeting;
30B.3 On 25 July 2022 the Applicant was terminated from her Post Termination Employment following which on 30 July 2022 she commenced her own business.
At [39] of the Proposed FASOC the proposed amendment seeks to substitute the words “mental and emotional harm” for the words “a psychiatric injury (“the injury”)”. Ms Homes thus now claims to have suffered mental and emotional harm because of alleged adverse action against her by the Respondents, that harm being “in the form of” helplessness and worthlessness; insomnia and tiredness; nervousness and restlessness; distress, hurt and humiliation; and depression and anxiety. These particulars of the “form of” the now alleged mental and emotional harm remain unchanged from the “form of” the previously alleged “psychiatric injury”.
The Court can, if Ms Homes’ adverse action claim is made out and an appropriate causal connection is established between the loss suffered and any relevant contravention of the FW Act, award compensation for non-economic loss, including for hurt and humiliation: FW Act, s 545(20(b); Dafallah v Fair Work Commission [2014] FCA 328; (2014) 242 IR 273; (2014) 225 FCR 559 (“Dafallah”) at [159] per Mortimer J; Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309 (“Melbourne Precast Concrete (No 3)”) at [9] per O’Callaghan J. It is not necessary for there to be medical or allied health evidence as to the nature of the non-economic loss, but failure to lead such evidence is relevant to the assessment of compensation, and may result in modest awards of compensation: Dafallah at [179] per Mortimer J; Melbourne Precast Concrete (No 3) at [10] per O’Callaghan J.
With respect to the claim of psychiatric injury and the submission of no case to answer with respect thereto by Australian Carers the Court, in Homes (No 2) at [26]-[28] per Judge Lucev, observed as follows:
26In 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.
27The 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.
28Ms 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”.
At no stage between the filing of the Statement of Claim in June 2022 and the finding of no case to answer in November 2023 did Ms Homes foreshadow a claim for alleged mental and emotional harm, either as a stand alone claim, or as an alternative to the claim of psychiatric injury. There was nothing to preclude such a claim being made, and in circumstances where no expert psychiatric evidence was ever sought to be called it is fair to observe that it would have been both prudent and proper pleading to claim alleged mental and emotional harm as an alternative to psychiatric injury from the outset of these proceedings. Even more so in circumstances where the particulars of the alleged mental and emotional harm in the Proposed FASOC are exactly the same as the particulars of the alleged psychiatric injury in the ASOC. An allegation of mental and emotional harm was, on the particulars alleged by Ms Homes, open from the outset of the proceedings: Dafallah at [159] per Mortimer J; Melbourne Precast Concrete (No 3) at [9] per O’Callaghan J. Now that it is sought to claim alleged mental and emotional harm no explanation has been provided in any of the affidavits filed by Ms Homes solicitor as to why the claim was not made from either the commencement of these proceedings, or at least earlier in these proceedings.
The Court is cognisant that making out the claim of alleged mental and emotional harm and receiving an award of compensation arising therefrom might be perceived as being important to Ms Homes. If that is the case it simply makes it all the more surprising that the claim of alleged mental and emotional harm was not made until almost three months after Ms Homes’ case was closed.
At the hearing of the application in a proceeding:
(a)Counsel for the Respondents submitted that because the claim was originally framed as a psychiatric injury in relation to which no expert medical evidence was led, and not the now alleged mental and emotional harm, the Respondents did not need to issue subpoenas for documents as to treatments undertaken by Ms Homes and did not cross-examine her as to other personal issues which might have provided an alternative explanation for any mental or emotional harm she might have been suffering at the relevant time: Transcript, p 3; and
(b)Counsel for Ms Homes conceded that this amendment “doesn’t look like something that would be a major factor in compensation” and that he “wouldn’t want to be dying in a ditch over” the amendment: Transcript, p 8.
Granting the amendment with respect to mental and emotional harm at this stage of the proceedings would:
(a)inevitably require the re-opening of Ms Homes case to, at least, allow cross-examination of Ms Homes with respect to the alleged harm. This would have the almost inevitable result that the two days presently listed on 7 and 8 March 2024, in which it was anticipated the Court would hear the Respondents’ evidence and the parties final submissions, would be insufficient to conclude the hearing, and an additional day would then have to be listed to conclude the hearing. This would self-evidently add to the expense of the proceedings to the parties, and in particular to the costs of the Respondents. The incurring of additional costs is an even more important consideration in an area of jurisdiction in which there is no general entitlement to costs, and an award of costs is the exception rather than the rule: FW Act, s 570; Construction, Forestry, Mining and Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987 at [10]-[11] per Jessup J; Cleland v Skycity Adelaide Pty Ltd [2017] FCAFC 222 at [74] per Logan J;
(b)delay the resolution of this already drawn-out matter, as the Court (as presently constituted) cannot list an additional day for further hearing in Adelaide until May or August 2024, and by reason of any additional days listed this would hinder the Court’s use of resources to efficiently and effectively dispose of its other caseload in the Adelaide Registry;
(c)not be an efficient use of the Court’s time, as it would see an adverse action claim which is not overtly complex and which would be likely, if made out, to only give rise to modest compensation with respect to the proposed amendment as to alleged mental and emotional harm, and a claim for entitlements now reduced to $8,127.66, have to be listed for an eighth day of hearing (two of which were ultimately adjourned because of the illness of Counsel for Ms Homes). The cost of the hearing and the use of the Court’s resources (which must also include consideration of Ms Homes unsuccessful application in a proceeding for discovery after she had closed her case: see Homes (No 1)) arising from these proceedings is already significantly disproportionate to the importance and complexity of the matter in disputes, and would be made more so by granting leave to make the proposed amendments with respect to alleged mental and emotional harm; and
(d)reward the failure by Ms Homes to provide any explanation for the delay in making the claim of mental and emotional harm and encourage other parties to act in a similar unhelpful manner.
In all the above circumstances and having regard to the provisions of s 190 of the FCFCOA Act, the Court is not satisfied that it is in the interests of justice, or otherwise appropriate, to grant leave to amend in relation to Ms Homes’ claim of alleged mental and emotional harm as set out at [30B] and [39] of the Proposed FASOC.
Classification Level
In the Proposed FASOC at [41] Ms Homes claims her duties with Australian Carers were those of a Level 3 “and/or” Level 2 Social and Community Services Employee under the Award.
Ms Homes originally claimed her duties were those of a Level 4 Social and Community Services Employee under the Award. In Homes (No 2) at [31]-[32] per Judge Lucev the Court found that:
31.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.
32.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.
The proposed amendment to [41] of the Proposed FASOC therefore seeks to strike out the reference to Level 4 and insert “Level 3 and/or Level 2” in lieu thereof.
Clause 13.1 of the Award provides that definitions for classification levels, which include Levels 2 and 3 Social and Community Services Employees, are, relevantly, contained in Sch B of the Award.
Clause 13.2 of the Award provides that employers “must advise their employees in writing of their classification upon commencement”. Ms Homes was not so advised. Had she been so advised the present issue would probably not have arisen.
The pleading that Ms Homes duties with Australian Carers were those of a Level 3 “and/or” Level 2 Social and Community Services Employee under the Award is bad. Self-evidently Ms Homes duties cannot be in two classifications, Level 3 “and” Level 2, and she cannot be paid two separate wage rates: see cll 15.2 (Level 2) and 15.3 (Level 3) of the Award. The Court will therefore take the plea to be that Ms Homes classification was as a Level 3, alternatively a Level 2, Social and Community Services Employee.
Level 3
The prerequisites for appointment as a Level 3 Social and Community Services Employee under the Award are set out in Sch B, cl B.3.3(b) of the Award as follows:
(i)entry level for graduates with a relevant three year degree that undertake work related to the responsibilities under this level – pay point 3;
(ii)entry level for graduates with a relevant four year degree that undertake work related to the responsibilities under this level – pay point 4;
(iii) associate diploma with relevant experience; or
(iv)relevant certificate with relevant experience, or experience attained through previous appointments, services and/or study of an equivalent level of expertise and/or experience to undertake the range of activities required.
As was found in Homes (No 2) at [31] per Judge Lucev 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 (such as a “relevant certificate”) possessed by her. Ms Homes did not therefore meet the requirements of placitas (i), (ii) and (iii) or the first part of placita (iv) of Sch B, cl B.3.3(b) of the Award. Further, Ms Homes evidence also did not establish that she had any experience through previous appointments or services, or study or an equivalent level of expertise or experience to undertake the range of activities required, so as to meet the requirements in the second part of placita (iv) of Sch B, cl B.3.3(b) of the Award. It follows that Ms Homes did not therefore meet the qualification or experience criteria for appointment as a Level 3 Social and Community Services Employee under the Award.
Level 2
The prerequisites for appointment as a Level 2 Social and Community Services Employee under the Award are set out in Sch B, cl B.2.3(b) of the Award and are as follows:
(i)       an appropriate certificate relevant to the work required to be performed.
(ii)will have attained previous experience in a relevant industry, service or an equivalent level of expertise and experience to undertake the range of activities required;
(iii)     appropriate on-the-job training and relevant experience; or
(iv)     entry point for a diploma without experience.
As was found in Homes (No 2) at [31] per Judge Lucev 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 (such as an “appropriate certificate”) possessed by her. Ms Homes did not therefore meet the requirements of placitas (i) and (iv) of Sch B, cl B.2.3(b) of the Award. Further, Ms Homes evidence also did not establish that she had:
(a)any experience through previous appointments or services, or study or an equivalent level of expertise or experience to undertake the range of activities required so as to meet the requirements of placita (ii) of Sch B, cl B.2.3(b) of the Award; or
(b)any appropriate on-the-job training and relevant experience so as to meet the requirements of placita (iii) of Sch B, cl B.2.3(b) of the Award.
It follows that Ms Homes did not therefore meet the qualification or experience criteria for appointment as a Level 2 Social and Community Services Employee under the Award.
Conclusion – classification level
It follows from [37]-[41] above that during her employment with Australian Carers Ms Homes did not meet the prerequisites to be classified as a Level 2 or Level 3 Social and Community Services Employee under the Award. It would therefore be futile: SZSRR at [48] per Gleeson J; and not therefore consistent with the objectives of s 190 of the FCFCOA Act, or in the interests of justice, to grant leave to amend in relation to Ms Homes’ claim at [41] of the Proposed FASOC that she was classified as a Level 3, alternatively a Level 2, Social and Community Services Employee under the Award. It likewise follows that the proposed amendment at [42] of the Proposed FASOC to claim an entitlement to payment pursuant to the Award and the FW Act as an employee classified at Level 3, alternatively Level 2 (in terms “Level … 3 and/or Level 2”) (presumably as a Social and Community Services Employee, although that is not specifically pleaded at [42] of the Proposed FASOC) under the Award is one in respect of which leave to amend also ought not to be granted.
Alleged underpayment
The pleading in the Proposed FASOC
At [42] of the Proposed FASOC Ms Homes seeks to plead that:
Pursuant to the Award and the FW Act … [Ms Homes] was entitled to be paid wages, overtime, statutory entitlements and allowances as a Level … 3 and/or Level 2 employee in accordance with clauses 20.57(a), …, 25.5, 26, 28.1(a) … thereof.
In the Proposed FASOC Ms Homes alleges that Australian Carers contravened the Award by underpaying her between 2 August 2021 and 18 January 2022 in several ways, relevantly including by failing to pay:
(a)travel allowance under cl 20.5(a) of the Award for Ms Homes travel to clients using her own vehicle, for a total of 2,989.19 kilometres at $0.80 per kilometre, claiming $2,389.74 (previously 6,568 kilometres and $5254.40): Proposed FASOC at [43.2] and Annexure A (“Travel Allowance Claim”);
(b)overtime payments under cl 28.1(a)(ii) of the Award for time allegedly worked by Ms Homes, claiming $4,332.58 (previously $3992.40): Proposed FASOC at [45.2] and Annexure B (“Overtime Claim”); and
(c)overtime under cl 26 of the Award for time allegedly worked whilst on-call by Ms Homes, claiming $1001.88 (previously $3005.64): Proposed FASOC at [46.2.4] (“On-Call Overtime Claim”).
At [50.1] of the Proposed FASOC, a pleading which is not sought to be amended save for a minor grammatical error, Ms Homes pleads that:
… [Australian Carer’s] repeatedly failed throughout her employment to pay … [Ms Homes] the amounts she was entitled to under the Award on account of … monetary allowances and overtime …
At [53.3] of the Proposed FASOC, a pleading which is not sought to be amended save for a lesser quantum claimed, orders are sought for payment “on account of underpayments of … [Ms Homes] entitlements under the Award”.
By reason of the alleged Award contraventions as now sought to be pleaded in the Proposed FASOC, Ms Homes claims Australian Carers is liable to pay her an amount of $8,127.66 (previously $12,993.53): Proposed FASOC at [51.1] and [53.3].
The Travel Allowance Claim
The Travel Allowance Claim is based on a per kilometre rate specified in the Award, and the rate is therefore not affected by the findings made by the Court with respect to the appropriate classification level for Ms Homes’ duties. The very significant amendments reflected in the amounts claimed in the Proposed FASOC are because of the number of individual claims under the Travel Allowance Claim being amended from 207 claims to 95 claims: see Proposed FASOC, Annexure A. In the affidavit affirmed by Ms Homes’ solicitor, Ms Duong, on 20 November 2023 (“Duong 20 November 2023 Affidavit”), Ms Duong says that the reduction in the number of individual claims under the Travel Allowance Claim is a consequence of deleting “the disallowed claimed travel the Applicant has conceded at trial”: at [12(c)]. The proposed amendments to the Travel Allowance Claim will significantly reduce the amount of time the Court has to spend looking at individual claims, and therefore assist with the more efficient disposition of this aspect of the matter, consistent with s 190 of the FCFCOA Act. It follows that leave will be granted to make the amendments with respect to the Travel Allowance Claim at [43.2] of the Proposed FASOC.
The Overtime Claim
Clause 28.1(a) of the Award provides that:
A full-time employee will be paid the following payments for all work done in addition to their rostered ordinary hours on any day:
(ii)social and community services and crisis accommodation employees – for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first three hours and double time thereafter;
The only proposed substantive amendment in the Proposed FASOC in respect of the Overtime Claim is the amount claimed at [45.2] thereof, which is proposed to increase from $3,992.40 to $4,332.58. Otherwise [45] of the Proposed FASOC remains in terms of the ASOC and pleads that Australian Carers “was obligated to pay, but failed to make payments, to … [Ms Homes] on account of overtime … as required under clause 28.1(a)(ii) of the Award”.

In both the ASOC and the Proposed FASOC the Overtime Claim is otherwise pleaded as being made under cl 28 of the Award: see [42] of the Proposed FASOC referred to at [43] above, and “under the Award”: see [50.1] and [53.3] of the Proposed FASOC, referred to respectively at [45] and [46] above.
The particulars of overtime worked for the purposes of the claim made at [45.2] of the Proposed FASOC are set out in Annexure B thereto. In the ASOC the particulars of the overtime were likewise set out in Annexure B. Annexure B to the ASOC sets out a total amount by way of overtime claimed of $4,318.94, and apart from a minor recalculation on the first item of overtime claimed (for 25 August 2021) Annexure B of the ASOC is identical to Annexure B of the Proposed FASOC, now claiming $4,322.58. There is no explanation as to why the ASOC pleading at [45.2] did not reflect the amount in Annexure B. The Respondents Counsel cross-examined Ms Homes extensively in relation to the particulars of Annexure B and the issue of whether the overtime claimed was authorised. But at no stage was that cross-examination referrable to anything other than a claim in the ASOC, at [42], [45], [50.1] and [53.3] based on the provisions in the Award, because nothing other than a breach of cl 28.1(a)(ii) of the Award has ever been pleaded in relation to the Overtime Claim.
The Overtime Claim cannot be sustained on the basis on which the entitlement is pleaded at [42], namely as overtime payable for a Level 3, alternatively Level 2, Social and Community Services Employee under the Award because, as the Court has found at [37]-[41] above, Ms Homes did not meet the pre-requisites for appointment as a Level 3 or Level 2 Social and Community Services Employee under the Award. As presently pleaded the Overtime Claim therefore has no prospects of success, and it follows on that basis alone that the Court ought not to grant leave to amend in relation to the Overtime Claim as set out at [45.2] of the Proposed FASOC: SZSSR at [48] per Gleeson J. Further having regard to the provisions of s 190 of the FCFCOA Act, the Court is not satisfied that it is in the interests of justice, or otherwise appropriate, to grant leave to amend in relation to the Overtime Claim as set out at [45.2] of the Proposed FASOC.
In relation to the Overtime Claim Ms Homes’ solicitor, Ms Duong, now states that the Overtime Claim is based upon Ms Homes’ “actual pay rate” as “determined by the Respondents”: affidavit affirmed by Ms Duong on 5 November 2023 at [15(a)], also Duong 20 November 2023 Affidavit at [12(e)]. This basis for the payment of overtime has never been pleaded and is now raised in affidavits filed more than five months after Ms Homes was cross-examined and closed her case.
The question of whether overtime is payable on the actual hourly rate paid to Ms Homes by Australian Carers, which rate is seemingly higher than but not linked to any of the Level 2, 3 or 4 Social and Community Services Employee classifications under the Award which have so far been claimed by Ms Homes to apply to her duties in the ASOC and Proposed FASOC, simply does not arise on the Proposed FASOC, or indeed on the ASOC. For this issue to be considered it would have to be re-pleaded, and, dependent on the terms of the re-pleaded claim, might require Ms Homes case to be re-opened, at least to allow further cross-examination. Given the stage that these proceedings have reached, including the number of opportunities that Ms Homes has had to plead her case, the further expense that would be incurred (including both the possibility of a Further Amended Defence having to be filed and the possible re-opening of the case and further cross-examination of Ms Homes), the further delay in finalisation of proceedings which would ensue, and the relatively small amount involved in this claim, the Court considers that further consideration of such an overtime claim, even if pleaded, would not be warranted having regard to the provisions of s 190 of the FCFCOA Act, and the interests of justice generally.
On-Call Overtime Claim
The proposed amendments to [46] of the FASOC at [46.2.1], [46.2.2] and [46.2.3] reduce the number of Fridays, Saturdays and Sundays upon which on-call overtime is claimed from six of each of those days to two of each of those days in accordance with the Court’s findings in Homes (No 2) at [40]-[45] per Judge Lucev. The proposed amendments to [46.2.1], [46.2.2] and [46.2.3] reduce the scope of the dispute as to how many Fridays, Saturdays and Sundays Ms Homes claims she worked overtime, consistent with the Reasons for Judgment in Homes (No 2). In the circumstances, it is appropriate that leave be granted to make the proposed amendments to [46.2.1], [46.2.2] and [46.2.3] of the Proposed FASOC, as those amendments are consistent with the intent of s 190 of the FCFCOA Act.
As with the Overtime Claim considered at [49]-[53] above, the quantum of the On-Call Overtime Claim at 46.2.4 of the Proposed FASOC cannot be sustained on the basis on which the entitlement is pleaded at [42], namely as on-call overtime payable for a Level 3, alternatively Level 2, Social and Community Services Employee under the Award because, as the Court has found at [37]-[41] above, Ms Homes did not meet the pre-requisites for appointment as a Social and Community Services Employee at Level 3 or Level 2 under the Award. As presently pleaded the On-Call Overtime Claim therefore has no prospects of success, and it follows, on that basis alone, that the Court ought not to grant leave to amend in relation to the quantum of the On-Call Overtime Claim as set out at [46.2.4] of the Proposed FASOC: SZSSR at [48] per Gleeson J. Further having regard to the provisions of s 190 of the FCFCOA Act, the Court is not satisfied that it is in the interests of justice, or otherwise appropriate, to grant leave to amend in relation to the On-Call Overtime Claim as set out at [46.2.4] of the Proposed FASOC. Insofar as the quantum of the On-Call Overtime Claim at [46.2.4] of the Proposed FASOC might be said by Ms Homes to be based upon the actual hourly rate paid to Ms Homes by Australian Carers, the Court considers that further consideration of such a claim, even if pleaded (which it is not), would not be warranted having regard to the provisions of s 190 of the FCFCOA Act, and the interests of justice generally, for the same reasons as are set out at [54]-[55] above.
Conclusion – alleged underpayment
It follows from [48]-[57] above that:
(a)the Travel Allowance Claim at [43.2] and Annexure A in the Proposed FASOC ought to be the subject of a grant of leave to amend;
(b)the Overtime Claim at [45.2] in the Proposed FASOC ought not to be the subject of a grant of leave to amend; and
(c)in relation to the On-Call Overtime Claim:
(i)[46.2.1], [46.2.2] and [46.2.3] of the Proposed FASOC ought to be the subject of a grant of leave to amend; and
(ii)[46.2.4] of the Proposed FASOC ought not to be the subject of a grant of leave to amend.
CONCLUSION AND ORDERS
Having regard to the matters considered and the conclusions reached at [22]-[58] above the Court considers that Ms Homes application in a proceeding filed on 25 August 2023 to file the Proposed FASOC ought to be granted, save for the proposed amendments to [30B], [39], [41], [42] (but only as to the underlined words and numbers “3 and/or Level 2”), [45.2] and [46.2.4] of the Proposed FASOC.
Having regard to the provisions of s 570(2) of the FW Act the costs of this application in a proceeding, if any, will be reserved.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 19 February 2024

File number(s):	ADG 131 of 2022
Judgment of:	JUDGE LUCEV
Date of judgment:	19 February 2024
Catchwords:	PRACTICE AND PROCEDURE – Application for leave to file a Further Amended Statement of Claim following partially successful no case to answer application – new claim for mental and emotional harm where no case to answer on previous claim for psychiatric injury – revised claims for quantum of money for overtime and allowances based on revised claim for classification of employee at a particular wage level – whether employee meets criteria for classification at particular wage level – consideration of overarching civil practice and procedure provisions – case management considerations – whether proposed amendments will cause delay and additional expense – effect of proposed amendments on efficient disposal of Court’s caseload and resolution of disputes and disposal of proceedings in a timely manner. INDUSTRIAL LAW – Whether contravention of general protections – whether workplace rights in relation to alleged discrimination, bullying and harassment – whether mental and emotional harm – whether duties at classification level claimed – whether underpayment of overtime, on call and travel allowances.
Legislation:	Fair Work Act 2009 (Cth) ss 545, 570 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190, 191, 192 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01 Federal Circuit Court Rules 2001 (Cth) r 7.01(1) Federal Magistrates Court Rules 2001 (Cth) r 7.01(1)
Cases cited:	AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987 Cleland v Skycity Adelaide Pty Ltd [2017] FCAFC 222 COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145; (2021) 365 FLR 1 Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309 Construction, Forestry, Mining and Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 Dafallah v Fair Work Commission [2014] FCA 328; (2014) 242 IR 273; (2014) 225 FCR 559 Homes v Australian Carers Pty Ltd(No 2) [2023] FedCFamC2G 714 Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711 Pietrobon v BMD Constructions Pty Ltd [2017] FCCA 1730 Reynolds v Harrier Group Pty Ltd [2023] FedCFamC2G 930 Robinson v Pilbara Iron Company (Services) Pty Ltd (No 2) [2023] FedCFamC2G 593; (2023) 326 IR 132 SZGTE v Minister for Immigration & Multicultural Affairs [2006] HCATrans 639 SZGTE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 443 SZSRR v Minister for Immigration and Border Protection [2017] FCA 328
Division:	Division 2 General Federal Law
Number of paragraphs:	60
Date of last submission/s:	21 November 2023
Date of hearing:	21 November 2023
Place:	Perth (heard by video-link to 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

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:	19 FEBRUARY 2024