Jovanovic v Australian Capital Territory as Represented BY the Health Directorate
[2020] FCCA 3355
•14 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOVANOVIC v AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY THE HEALTH DIRECTORATE | [2020] FCCA 3355 |
| Catchwords: INDUSTRIAL LAW – Where the Applicant was employed as a night shift worker – the Applicant contended that the Respondent (and or management of the Canberra Hospital and others) were liable for misfeasance and “breach of public office” – misfeasance claim unsustainable and dismissed – claim of non-payment under various sections of the Enterprise Agreement and breaches of the Fair Work Act 2009 (Cth) – interpretation of the Enterprise Agreement – Applicant found to have misinterpreted the Enterprise Agreement – Applicant found to have been paid all of his entitlements under the Enterprise Agreement – Application dismissed – no order as to costs. |
| Legislation: Fair Work Act 2009 (Cth), ss.16, 20, 90, 99, 570 |
| Cases cited: AMCOR Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Cahill v Construction, Forestry, Mining and Energy Union (No.2) (2008) 170 FCR 357 Kucks v CSR Ltd (1996) 66 IR 182 Leerdam v Noori (2009) 255 ALR 553 Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1998) 90 FCR 453; 160 ALR 184 Northern Territory of Australia v Mengel (1995) 185 CLR 307 Obeid v Ipp (2016) 338 ALR 234 Spencer v The Commonwealth (2010) 241 CLR 118 Three Rivers District Council v Bank of England [No.3] [2003] 2 AC 1 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 Transport Workers Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54 M. Aronson, M. Groves, G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Co., 2017) |
| Applicant: | MILENKO JOVANOVIC |
| Respondent: | AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY THE HEALTH DIRECTORATE |
| File Number: | CAG 38 of 2018 |
| Judgment of: | Judge W. J. Neville |
| Hearing date: | 13 March 2020 |
| Date of Last Submission: | 8 September 2020 |
| Delivered at: | Canberra |
| Delivered on: | 14 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms P Bindon |
| Solicitors for the Respondent: | Government Solicitor for the Australian Capital Territory |
ORDERS
The Applicant’s Further Further Amended Application and Statement of Claim filed 27 March 2020 be dismissed.
There be no Orders as to costs.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 38 of 2018
| MILENKO JOVANOVIC |
Applicant
And
| AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY THE HEALTH DIRECTORATE |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant worked as a Wardsman (night shift worker) at the Canberra Hospital. He did so from November 2001; he has recently retired.
The Applicant seeks that the Court interpret, and apply in his favour, specific sections of the ACT Public Sector Support Services Enterprise Agreement 2013 – 2017 (“the EA”). A copy of that EA is annexed to the Affidavit of Ms Clare Besemeres, filed 13th May 2019.[1] Subject to the Court’s determination of those sections, the Applicant seeks payment(s) in relation to a range of matters, which he contends has resulted in him being owed significant recompense arising from many years of under-payment or non-payment under the EA.
[1] A copy of the Enterprise Agreement was also annexed to the Applicant’s Affidavit, filed 21st November 2019. There is a new EA that covers the period 2018-2021, which came into effect on 1st August 2019. Nothing relevantly turns on the terms of this later EA.
The Applicant also contends, among other things, that there have been various breaches of the Fair Work Act 2009 (Cth) (“the FW Act”) in relation to which he seeks civil penalties against the Respondent for said contraventions.
The Applicant’s sense of grievance is well captured in pars.23 - 25 of the “Further Further Amended Statement of Claim” (sic), thus:
[23] The Applicant feels penalised and all but ignored for being a permanent, non-rotating seven night-shift worker [sic]. Unlike the non-shift workers at the Canberra Hospital, the Applicant has been penalised for being sick, taking holidays or long service leave, and for working Saturday, Sunday and Public Holiday night shifts, because the Respondent deliberately chooses not to pay the Applicant his full ordinary rate of pay when on such leave.
[24] The Applicant feels penalised as a permanent, non-rotating night-shift worker because, according to the Respondent’s administration, the Applicant has been entitled to negative Annual Leave Loading each year since 2000 because he receives penalties for every night shift hour he works.
[25] The Applicant feels penalised as a permanent, non-rotating seven night-shift worker because of the Respondent’s inappropriate, discriminatory and inconsiderate devaluing of the value of the Applicant’s night shift penalty (from 25% to 30%) and a 66.5% increase in the 15% penalty awarded to the employees who rotate between day and afternoon shifts. In other words, the Applicant’s night shift penalty of 25% up to the discriminatory change in 2007 was 66.5% higher than the 15% early morning and afternoon shift.
As an observation only, the Applicant’s sense of grievance has clearly coloured his ongoing pursuit against wrongs that he perceives have been inflicted upon him. Indeed, as set out in his material, it could be interpreted that he perceives that he has been deliberately targeted for discriminatory, adverse treatment by his employer, and in particular, by those who are responsible for calculating his pay and other entitlements.
For its part, the Respondent says that the Applicant has mis-interpreted the EA and that he has been paid all of his entitlements under it. The Respondent also says that many of the complaints made by the Applicant are more properly matters that would usually, and more appropriately, be taken up in negotiations for a new EA. The Applicant’s complaints, the Respondent said, they do not relevantly arise under the existing EA.
Regrettably from the Applicant’s perspective, for the reasons that follow, I agree with the Respondent’s analysis and submissions. The Applicant has been paid all his entitlements under the EA and other statutory instruments (e.g. in relation to superannuation). Accordingly, the Application, including the most recent iteration of it (the “Further Further Amended Statement of Claim” [“the FFAMSOC”]), filed 27th March 2020, and the Amended Application in a Case, bearing the same date, must be dismissed. There should be no Orders as to costs.
In view of this result, it is unnecessary to deal with the Respondent’s Summary Dismissal Application filed 7th November 2019, other than to dismiss it also.
These reasons proceed as follows: (a) identification of issues in dispute, (b) listing of the Affidavit and other evidence relied upon by the parties (there was no cross examination during the hearing), (c) the multiple submissions of each of the parties in their entirety, (d) outline of relevant principle, and finally, (e) consideration and disposition of the Application. I will deal with each issue discretely, including by reference to the brief oral submissions made by the parties during the hearing.
There is, however, one preliminary matter (and a couple of subsidiary matters) that should be mentioned at the outset.
Misfeasance in public office – and some procedural issues
In his Further Application, filed 4th October 2019 (Prayers 6 and 7), and Further Amended Statement of Claim (Attachments A, C and E), the Applicant contended that the Respondent had committed “maladministration/misfeasance of office”.[2]
[2] See also the Applicant’s Affidavit, filed 12th March 2020, which bears the heading “Maladministration of my public sector superannuation scheme Member’s account”. It refers in particular to par.9(vi) of the Amended Statement of Claim.
In the Applicant’s FFASOC, dated 27th March 2020, similar or related matters pleading maladministration and breach of statutory duty are set out in the following paragraphs: 7, 12, 13, and 14 – 21, and Attachment A.
At the outset of the hearing I noted the principles that apply to such a serious, indeed grave, claim, primarily by reference to the High Court’s decision in Northern Territory of Australia v Mengel.[3] In that case, the plurality (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) set out at length the basal principles to establish such a tort.[4]
[3] Northern Territory of Australia v Mengel (1995) 185 CLR 307 (“Mengel”).
[4] See CLR at pp.345 – 348, under the heading “Misfeasance in public office.”
In a separate judgment, to similar effect, Deane J set out summarily the following principles in relation to this tort, as follows (at pp.370 – 371) (emphasis added; internal citations omitted):
As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v. Woollahra Municipal Council (141), the tort of misfeasance in public office is "well-established". Its elements are: (i) an invalid or unauthorized act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice.
In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff. Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied.
Summarised further, the basal elements of this tort are as follows:[5]
a.An abuse of public power, duty or authority;
b.By a public officer;
c.Who either: (i) knew that he or she was abusing their public power, duty or authority; or (ii) was recklessly indifferent to the limits to or restraints upon their public power, duty or authority; and
d.Who acted or omitted to act: (i) with the intention of harming the claimant; or (ii) with the knowledge of the probability of harming the claimant; or (iii) with a conscious and reckless indifference to a risk of harm to the plaintiff that must at the very least be foreseeable.
[5] This summary draws of course on the detailed discussion in Mengel and is essentially taken from M. Aronson, M. Groves, G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Co., 2017) par.19.640.
Moreover, it is clear that, on the basis of the cases to which I have referred (earlier and later in these reasons), negligence or incompetence are insufficient to established misfeasance in public office. Illegality and harm are essential. At its highest, the Applicant’s claims seems clearly to refer to alleged negligence and or alleged incompetence, not to illegality.
The principles outlined above were summarised to the self-represented Applicant, and his diligent, and always earnest and gracious McKenzie friend, his Wife, Mrs Jovanovic, during the hearing. On the basis of all the material provided by the Applicant, there was no factual or legal basis for such a claim. Accordingly, as I explained to the parties at the time, I put it to one side for the purposes of the hearing. In doing so I acknowledged at the time, and do so again here, that the Applicant (and his Wife) clearly felt (and still feel) a significant, if not an abiding, sense of grievance (if not injustice) about how the respective claims have been dealt with by various ACT Government Departments, including by those at the Canberra Hospital where the Applicant has worked for many years. However, a grievance, and or significant dissatisfaction with outcomes (and any delay included), does not, without more, constitute “misfeasance in public office” according to the principles outlined by the High Court in Mengel (and later cases).[6]
[6] For a broader, more recent discussion, see M. Aronson, M. Groves, G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Co., 2017) Section 19.6 “Misfeasance in public office” pp.1149 – 1161. This discussion included canvassing more recent decisions, for example, the House of Lords in Three Rivers District Council v Bank of England [No.3] [2003] 2 AC 1, and most recently, the somewhat prominent decision of the Supreme Court of New South Wales in Obeid v Ipp (2016) 338 ALR 234, and of the New South Wales Supreme Court of Appeal in Leerdam v Noori (2009) 255 ALR 553.
For completeness, two other preliminary matters – unrelated to the misfeasance issue - should be noted here.
First, many of the Applicant’s original claims went back to the commencement of his employment. In the early stages of the matter I noted how such claims dating from that time would be well outside any standard limitation period. It was on this basis that the later iterations of the Application were ultimately framed and filed.
Secondly, quite early in the hearing, the Applicant – invariably (as already noted) through the determined and earnest advocacy of his Wife – somewhat curiously advised the Court that he was aware of, but was not a participant in, a potential “class action” by other staff at the Canberra Hospital. Whether this class action proceeded, so I was advised, was dependent upon the outcome of the current proceedings. To this information I simply observed that it may have been of assistance, at least to the Applicant, if the legal representatives retained in the class action had also been able to assist in the current proceeding.
Issues in Dispute
At the outset of the hearing, and by reference in particular to the various iterations of the Statement of Claim, the following matters were identified and confirmed by the parties as being formally in dispute. They reflect the issues identified in the FFASOC, notably in “Attachments A – E”. Apart from a discrete issue relating to superannuation, dealt with later in these reasons, the following matters all relate to alleged under-payment, or non-payment, by the Respondent to the Applicant, thus:
(i)Non-payment of annual leave loading” (see Section F.8 of the EA);
(ii)Non-payment of night shift penalty loading for Saturdays, Sundays and Public Holidays (see Section C.8 of the EA);
(iii)Non-payment of night shift penalties regarding “personal and carers leave” (see Section F.4 of the EA);
(iv)Non-payment of shift penalty payments whilst on long-service leave (see Section F.25 of the EA);
(v)Non-payment of annual incremental pay increases (see Section S of the EA), and
(vi)Failure to calculate accurately (and “timely”) and adjust the Applicant’s Super Salary for the Public Sector Superannuation Scheme Defined Benefits Superannuation Fund.[7]
[7] Each of these matters is pleaded in par.8(i) – (vi) of the FFASOC. There was also a discussion at the hearing of the alleged failure by the Respondent to increase the Applicant’s hourly penalty shift rates since 2007. There had been discussions earlier in the proceeding that claims outside the standard limitation period of 6 years, should not be pursued, absent any Application to seek leave to include them. This was one of the reasons why there was some amendment to the pleadings. Further, there was an earlier claim by the Applicant against the Respondent that arose under the EA that was resolved by Deed of Release, dated 13th December 2017 and an ex gratia payment to the Applicant of $40,000. That Deed is annexed to Ms Besemere’s Affidavit, filed 13th May 2019.
In addition to what was set out in the FFASOC (and in his various supporting Affidavits), the Applicant’s more succinct statement of his grievances were set out in an undated and unsigned document handed up in Court, noting that it identifies a larger number of issues than those agreed upon at the hearing:
Mz Registrar [sic]
I would like to first state that all Employment Contracts, Awards and successive Enterprise Agreements as they applied to me over the 19 years of my employment as a night shift Wardsman at the Canberra Hospital gave me the rights to as any other non-shift permanent employee of the ACT Government:
1. have Annual Leave hours paid at my Ordinary rate of pay which includes all allowances and penalties
2. receive Annual Leave Loading (also known as annual leave bonus) amount every year
3. receive Personal and Long Service Leave at my Ordinary rate of pay, exactly as my Annual Leave rate of pay
4. receive a 30% penalty rate for every night shift worked, be it a weekday or weekend shift, or a Public Holiday
5. receive an annual increase in the HSO level on the anniversary of my becoming an HSO3 level employee
6. have my work hours correctly recorded on my personnel record as working 76 hours in a week, not 38; and have those hours recorded as night shift penalty hours, not overtime; and
7. have my Super Salary correctly calculated as prescribed by the Commonwealth Superannuation Corporation and the Australian Taxation Office
Of all these employment rights above, for the 19 years of my employment:
1. I have only ever been paid the 30% penalty for the five night shifts out of seven in any working fortnight
2. I have not received my Annual Leave Loading bonus, other than incorrectly calculated, much lower amounts in 2001 and in 2018
3. I have been denied my ordinary full rate of pay when on sick or carer’s leave, or long service leave
4. I have not received an incremental increase in my HSO3 level since the annual incremental increases stopped in 2004 without any explanation or advice, resulting in my being stuck on the HSO3 level 4 for the last 15 years
5. I have never been recognized as a special, permanent, non-rotating night shift Wardsman of the Canberra Hospital. I have not received as much as a mention in the sections of the successive Enterprise Agreements that purported to be covering all Wardsmen working in the Canberra Hospital.
While the Respondent recognised my day shift counterparts and awarded them a special mention under a Special Section of the successive Enterprise Agreements since 2007 which apply to Wardsman and had increased their early morning and late afternoon penalty rate which every other day and afternoon shift employee of the ACT Government is receiving from 15% to 25%, awarding them a 66.5% increase, it has absolutely failed to recognise my existence as a non-rotating, permanent non-rotating night shift employee at the Canberra Hospital and award me even a mention in the special Wardsman Section of the successive Enterprise Agreements.
Had my night shift penalty rate been increased by the same percentage increase in 2007, my permanent night shift penalty rate for all night shift hours worked since 2007 would have been 42%.
6. And last but not least, my future as an Australian Public Service pensioner has been put in jeopardy by the ACT Government’s maladministration of the Superannuation Act which resulted in a significantly lower Public Sector Superannuation scheme annual pension estimate compared to the pension which I should be receiving in the future had the ACT Government not severely underpaid me over the years.
Further, it was pleaded that in addition to the various under- or non-payments to the Applicant, pecuniary penalties were also sought against the Respondent for various alleged breaches of nominated sections of the Fair Work Act 2009 (Cth) (“the FW Act”). In all claims, the maximum penalty of $63,000 was sought in relation to each alleged contravention.
Latest Pleadings
I set out here the latest iteration of the parties’ pleadings, beginning with the Applicant’s FFASOC, dated 27th March 2020:[8]
[8] The lengthy Annexures to the FFASOC are attached to these reasons as Appendix A.
Amended FURTHER APPLICATION
Final orders sought by applicant/s
1. A declaration that the Respondent has contravened section 50, and any other applicable sections of the Fair Work Act 2009 in all instances mentioned in the Statement of Claim.
2. An order pursuant to section 545 of the Fair Work Act 2009 that the Respondent pay the Applicant the total amount claimed at paragraph 7 to the Statement of Claim, which represents a sum of all individual claims, each of which is limited to the period from 6 September 2013 to 6 September 2019 and inclusive of the 10 per cent superannuation contributions in accordance with applicable Commonwealth superannuation legislation, and an averaged 9.2 per cent interest - General Interest Charge over the period from 6 September 2013 to 6 September 2019, as published by the Australian Taxation Office.
3. An order pursuant to section 546 of the Fair Work Act 2009 that a maximum pecuniary penalty of $63,000 per contravention of the Fair Work Act 2009 covered by this Application, or a total of $504,000, be imposed on the Respondent.
4. An order pursuant to section 546(3) of the Fair Work Act 2009 that any pecuniary penalties imposed on the Respondent be paid to the Applicant.
5. An order pursuant to section 545 of the Fair Work Act 2009 that the Respondent advertises the fact that contraventions have been found to have been made out and that the pecuniary penalties were imposed.
6. A declaration that the Respondent had engaged in maladministration/misfeasance in public office.
7. An order that the Respondent pays the Applicant adequately harsh general, aggravated and exemplary damages for engaging in maladministration/misfeasance in public office.
8. An order that the Respondent has breached its statutory duty to properly administer the requirements of the Superannuation Act 1990 in relation to the Applicant’s employment, as pleaded in the Further Further Amended Statement of Claim.
9. An order for damages for the economic loss suffered by the Applicant due to the Respondent’s breach of statutory duty.
Grounds of application
The Applicant relies on the grounds set out in the Statement of Claim filed with this Application.
Further Further amended Statement of claim
A. Parties
1. The Applicant is and, at all material times, was an employee within the meaning of sections 42 and 335 of the Fair Work Act 2009 (the FW Act), and a person within the meaning of section 540, entitled to apply for orders in relation to contraventions of civil remedy provisions of the FW Act.
2. The Respondent is:
a body politic incorporated under section 7 of the Australian Capital Territory (Self-Government) Act 1988;
a national system employer within the meaning of sections 42 and 335 of the FW Act, a person within the meaning of section 50, and is a constitutionally-covered entity within the meaning of section 338 of the FW Act; and
an approved authority as defined in the Superannuation Act 1990.
B. The Shift Work
3. At all material times since 1 November 2001, the Applicant has been engaged as a permanent employee wardsman (Health Services Officer Level 3) by the Respondent (the Employment) in The Canberra Hospital, located in Garran in the Australian Capital Territory. At all material times from June 2000 to 1 November 2001, the Applicant has been engaged as a temporary employee wardsman (Health Services Officer Level 3).
4. At all times applicable to their operation, the following workplace instruments have applied to the Applicant’s employment:
a. the ACT Public Sector Support Services Enterprise Agreement 2018 – 2021 (EA 2018-2021)
b. the ACT Public Sector Support Services Enterprise Agreement 2013 – 2017 (EA 2013-2017); and
c. the ACT Public Service Health Directorate Enterprise Agreement 2011 – 2013 (EA 2011-2013); collectively: Awards/Enterprise Agreements.
5. At all material times following 1 November 2001, the Respondent has rostered the Applicant to work between the hours from 8:15pm to 07:36am on a seven consecutive nights-on and seven consecutive nights-off shift (permanent, non-rotating night shift), starting from a Thursday night and finishing the night shift on week the next Thursday morning over any fortnightly period. The Applicant has worked those hours over shifts of 11 hours and 21 minutes per shift (Rostered Hours). The Applicant was paid for 10 hours and 51 minutes each night shift, accounting for one 30-minute meal break per shift, or 76 hours over any fortnight.
C. Particulars of the contraventions
6. Please refer to Attachments A to E of this document.
D. Claim against the Respondent under the Fair Work Act 2009
7. The Applicant is claiming a total $518,669 in compensation for the Respondent’s maladministration caused monetary loss. This amount under each maladministration category includes a 10% unpaid superannuation contribution, as well as an averaged 9.2% GIC (General Interest Charge), as published by the Australian Taxation Office, for each year in which an underpayment had occurred over the last six years; covering the period from 6 September 2013 to 6 September 2019; as well as a 2% compounding interest under the superannuation pension undercalculation category for each year over the future 20-year pension period. In addition, the Applicant is asking that a maximum pecuniary penalty of $63,000 is imposed on the Respondent for each contravention of the Fair Work Act 2009, a total of $504,000, and paid to the Applicant instead of the Commonwealth.
8. The amount of $518,669 represents a full financial compensation for the economic loss caused by the Respondent’s breaches of various Awards/Enterprise Agreements by interpreting their clauses so to deliberately discriminate against the Applicant, a full time employee of the Respondent as follows:
i. For the Respondent’s contravention of various clauses of the Awards/Enterprise Agreements by failing to first correctly calculate and then pay the full amount of Annual Leave Loading in any year over the period, the Applicant is seeking compensation of $30,776. The Applicant is also seeking that a maximum $63,000 pecuniary penalty for this contravention be imposed and paid to the Applicant;
ii. For the Respondent’s contravention of various clauses of the Awards/Enterprise Agreements by failing to pay the standard 30% permanent night shift penalty for any night shift hours worked on Saturdays, Sundays and Public Holidays, or in other words, paying for only 54.29 and failing to pay for 21.71 hours of his regular 76 hours night shift worked over any given week in any given fortnight, the Applicant is seeking compensation of $46,838. The Applicant is also seeking that a maximum $63,000 pecuniary penalty for this contravention be imposed and paid to the Applicant;
iii. For the Respondent’s contravention of various clauses of the Awards/Enterprise Agreements by failing to pay the Applicant his full ordinary hourly rate of pay (comprising of his base rate of pay, representing 57% of his ordinary rate of pay and all applicable permanent night shift hourly penalty rates, representing 43% of his ordinary rate of pay) for hours on Personal and Carers leave, the Applicant is seeking compensation of $10,712. The Applicant is also seeking that a maximum $63,000 pecuniary penalty for this contravention be imposed and paid to the Applicant;
iv. For the Respondent’s contravention of various clauses of the Awards/Enterprise Agreements by failing to pay the Applicant his full ordinary hourly rate of pay (comprising of his base rate of pay, representing 57% of his ordinary rate of pay and all applicable permanent night shift hourly penalty rates, representing 43% of his ordinary rate of pay) for hours on Long Service leave, the Applicant is seeking compensation of $21,989. The Applicant is also seeking that a maximum $63,000 pecuniary penalty for this contravention be imposed and paid to the Applicant. For Particulars of Contravention on matters 8(i) to 8(iv), see Attachment A.
v. For the Respondent’s contravention of various clauses of the Awards/Enterprise Agreements by failing to pay the Applicant his correctly incrementally increased base pay salary which should have been annually increased by a point since the first anniversary of the Applicant becoming an HSO3.1 in June 2001, the Applicant is seeking compensation of $85,387, representing the difference in actual versus EA prescribed levels/points during the period. The Applicant is also seeking that a maximum $63,000 pecuniary penalty for this contravention be imposed and paid to the Applicant. (Attachment B).
vi. For the Respondent’s contravention of s.50 of the Fair Work Act 2009 and any relevant previous Acts by failing to accurately and timely calculate and adjust the Applicant’s Super Salary for the Public Sector Superannuation Scheme Defined Benefits superannuation Fund in accordance with the statutory requirements of the Superannuation Act 1990, Public Sector Superannuation Scheme Trust Deed (PSS Trust Deed) and directions from the Commonwealth Superannuation Corporation (and is predecessors) (CSC),
Final Salary pension calculation purposes for any extraordinary amounts of either retrospective salary increases or any other back paid amounts paid in bulk to the Applicant during any particular fortnight over the preceding six-year period, for the estimated financial loss in lower amounts of the PSS pension over the next 20 years (adjusted for 2% indexation pa), the Applicant is seeking compensation of $208,753. The Applicant is also seeking that a maximum $63,000 pecuniary penalty for this contravention be imposed and paid to the Applicant. (Attachment C).
Particulars
a. The Enterprise Agreements provide the terms and conditions of the Applicant’s employment, in addition to other terms and conditions under applicable legislation.
b. It is an implied term of employment in the Enterprise Agreements that the Respondent will pay the Applicant superannuation in accordance with the applicable legislation.
i. The Superannuation Act 1990 is applicable legislation by virtue of the Respondent being an approved authority under that Act, and the Applicant an eligible employee and member of the scheme established under that Act.
c. The Respondent has failed to adjust the Applicant’s superannuation salary in accordance with the Superannuation Act 1990 and thereby has breached the implied term of the Enterprise Agreements to pay the Applicant superannuation in accordance with the Act.
i. The PSS Trust Deed was enacted under the Super Act to put into place, inter alia, the PSS Rules for the administration of the PSS.
ii. The CSC has provided employers, including the Respondent, access to PSS Training Notes to assist employers to correctly facilitate member and employer f contributions to the PSS.
iii. The Respondent, in adjusting the Applicant’s superannuation salary, has not complied with the CSC PSS Training Notes which implement the PSS Rules.
vii. For the Respondent’s contravention of s.50 of the Fair Work Act 2009 and any relevant previous Acts by failing to first recognise the Applicant as a separate, night shift wardsman category, namely, the one corresponding the night shift category of employees described in subclause C8.2 of the EA2013/17 and proportionately increase the Applicant’s permanent, non-rotating hourly penalty night shift rate by 66.5 per cent from 25 per cent to 42 per cent, — the 66.5 per cent representing the percentage increase first awarded by the EA2007/10 to the opposite shift (early morning and late afternoon) wardsman, the Applicant is seeking compensation of $113,940. The Applicant is also seeking that a maximum $63,000 pecuniary penalty for this contravention be imposed and paid to the Applicant. (Attachment D).
vii. For the Respondent’s contravention of subsections 535(1), (2) and (4) of the Fair Work Act 2009, which deal with employer obligations in relation to employee records, by producing payslips which 1. show incorrect night hours worked per week (38 instead of 76); 2. show incorrect hours of the Applicant’s night shift work as a maximum of 54.29 instead of the actual 76 hours worked in any given fortnight for the purposes of the 30% night shift penalty calculations; and 3. for all hours worked and when on annual leave subject to night shift penalties being shown on the Applicant’s personnel HR21 application as overtime hours, 4. For correctly coding all the Applicant’s night shift hours on his electronic timesheet as subject to his ordinary, night shift 30% penalty but then failing to translate this into actual fortnightly night shift hours calculations on the Applicant’s payslip and not paying the 30% penalty for every hour of every night shift worked, as described under 2 above; the Applicant is seeking that a maximum $63,000 pecuniary penalty be imposed and paid to the Applicant.
ix. The Applicant no longer seeks pecuniary penalty to be paid for to him for the Respondent’s contravention of s.50 of the Fair Work Act 2009 and any relevant previous Acts by failing to provide tea/rest break clauses in the applicable Award/Enterprise Agreement since 2000. This is because the Respondent has allowed for a 10-minute meal break in the EA2018/21.
9. The Respondent’s failure to pay the Applicant as outlined above constituted a breach of the obligations the Respondent owed to the Applicant under the relevant clauses of the applicable workplace instruments.
10. The Respondent’s failure to ensure that the Awards/ Enterprise Agreements, as they apply and have applied to the applicant, a permanent, non-rotating seven-night shift employee, are first correctly drafted and then correctly administered in line with Fair Work Act 2009, all previous applicable Acts, and all applicable Industry Awards, represented a breach of its obligations as an employer under section 50 of the Fair Work Act 2009 (Cth).
11. The Respondent’s failure to prevent discrimination against permanent, non-rotating, consecutive seven-night shift employees represented a breach of its obligations as an employer under section 50 of the Fair Work Act 2009 (Cth).
12. The Applicant alleges that the Respondent, being a body politic incorporated under section 7 of the Australian Capital Territory (Self-Government) Act 1988, a national system employer within the meaning of sections 42 and 335 of the FW Act, a person within the meaning of section 50, and is a constitutionally-covered entity within the meaning of section 338 of the FW Act, in other words, the holder of a public office:
i. has exercised powers that were incidents of that office, that have been invalid/unlawful;
ii. has exercised the power knowing that it acted in excess of power and with the intention to cause harm to the Applicant by interpreting the Agreements to the Applicant’s detriment;
iii. has been recklessly indifferent to whether the invalid/unlawful acts were beyond power and recklessly indifferent to the likelihood of harm being caused to the Applicant;
iv. has been acting with reckless indifference to whether the invalid/unlawful acts were beyond its power and by acting in that manner, that there has been, objectively, a foreseeable risk of financial, economic and emotional harm to the Applicant.
v. The Respondent’s demonstrated exercise of excess of power caused not only financial, but also economic and emotional harm/ loss to the Applicant.
13. The Applicant is seeking from the Court a declaration that the Respondent had engaged in maladministration/misfeasance in public office for the reasons stated in the body of this Statement of Claim and the Attachments. The Applicant is seeking an Order that the Respondent pays the Applicant adequately harsh general, aggravated and exemplary damages for engaging in maladministration/misfeasance in public office.
D.1 Claim against the Respondent - Breach of Statutory Duty
14. At all material times there was in force in the Australian Capital Territory the Superannuation Act 1990 which was made with the express purpose to make provision for and in relation to an occupational superannuation scheme for people employed by the Commonwealth and approved authorities under the Superannuation Act 1990.
15. The Superannuation Act 1990 relevantly provided as follows:
3. Interpretation
… permanent employee means a person employed in a permanent capacity by the Commonwealth or by an approved authority, but does not include a person who is engaged or appointed for employment outside Australia only, not being a person who is included in a class of persons approved by the Minister, in writing, for the purposes of this definition.
4. Deed to establish the Public Sector Superannuation scheme etc
Not later than 30 days after the commencement of this Act, the Minister must, for and on behalf of the Commonwealth, by deed:
(a) establish an occupational superannuation scheme for the benefit of:
(i) persons employed by the Commonwealth and approved authorities; and
(ii) holders of statutory offices; and
(iii) other persons;
who, on and after the commencement of Part 3, will be, under that Part, members of the scheme; and
(b) establish, and vest in the Board, a fund for the purposes of the Public Sector Superannuation Scheme; and
(c) set out the functions and powers of the Board.
6. Membership of the Public Sector Superannuation
(1) Subject to subsections (2) and (4), each of the following persons is, by force of this subsection, a member of the Public Sector Superannuation Scheme:
(a) a permanent employee;
16. The purpose of the introduction of section 6 of the Super Act was to provide Commonwealth superannuation to persons who were permanent employees of the Commonwealth and approved authorities.
17. The PSS Trust Deed, established under section 4 of the Superannuation Act 1990, establishes the Public Sector Superannuation scheme (PSS Fund) and sets out in the Schedule to the Deed the rules for the administration of the PSS Fund.
18. As a consequence of the foregoing, the Respondent was obliged:
(a) to administer and implement the provisions of the Superannuation Act 1990 and the PSS Trust Deed according to law and for the benefit of employees required to join and contribute to the PSS Fund, including the Applicant; and further or in the alternative
(b) to correctly maintaining records for the purposes of making superannuation deductions from wages; and further or in the alternative
(c) to correctly adjust a member’s superannuation salary on each birthday anniversary in accordance with the PSS Trust Deed.
19. The Respondent breached its obligations under the Superannuation Act 1990 and the PSS Trust Deed pleaded in 18 above by:
(a) failing to administer and implement the provisions of the Superannuation Act 1990 and the PSS Trust Deed according to law and for the benefit of the Applicant; and further or in the alternative
(b) failing to correctly maintain records relating to the Applicant’s entitlements for the purposes of making superannuation deductions from wages; and further or in the alternative
(c) failing to correctly adjust the Applicant’s superannuation salary on each birthday anniversary in accordance with the PSS Trust Deed; and further or in the alternative
(d) failing to correctly adjust the Applicant’s superannuation salary following backpay of owed allowances in accordance with the PSS Trust Deed.
20. But for the breaches of statutory duty of the Respondent:
(a) the Applicant would have made member contributions and received employer contributions calculated based on the correct superannuation salary; and further or in the alternate
(b) the final benefit now available to the Applicant on retirement would be based on the correct superannuation salary.
21. As a result of the Respondent’s breaches of statutory duty, the Applicant has suffered or will suffer loss and damage, particulars of which are as follows:
(a) The PSS Fund benefit available to the Applicant upon cessation of eligible employment is less than the benefit that would have been available, but for the Respondent’s error.
E. Particulars – see Attachments A to E
22. Any further particulars may be provided following discovery.
F. General Statement
23. The Applicant feels penalised and all but ignored for being a permanent, non-rotating seven night-shift worker. Unlike the non-shift workers at the Canberra Hospital, the Applicant has been penalised for being sick, taking holidays or long service leave, and for working Saturday, Sunday and Public Holiday night shifts, because the Respondent deliberately chooses not to pay the Applicant his full ordinary rate of pay when on such leave.
24. The Applicant feels penalised as a permanent, non-rotating seven night-shift worker because, according to the Respondents administration, the Applicant has been entitled to negative Annual Leave Loading each year since 2000 because he receives penalties for every night shift hour he works.
25. The Applicant feels penalised as a permanent, non-rotating seven night-shift worker because of the Respondent’s inappropriate, discriminatory and inconsiderate devaluing of the value of the Applicant’s night shift work in 2007 by awarding the Applicant a 20% increase in the night shift penalty (from 25% to 30%) and a 66.5% increase in the 15% penalty awarded to the employees who rotate between day and afternoon shifts. In other words, the Applicant’s night shift penalty of 25% up to the discriminatory change in 2007 was 66.5% higher than the 15% early morning and late afternoon shift.
26. The Respondent has breached the Agreements by interpreting them as to discriminate against the Applicant, a permanent, non-rotating night shift employee versus non-shift employees as follows:
27. The Applicant works a consecutive seven nights on shift in any fortnight. Such a category does not exist in the Respondent’s Australian Capital Territory Public Sector Enterprise Award 2016 document. The document recognises and gives special rights to the category of shift workers in a five-day establishment and a six-day establishment. The document absolutely ignores the fact that the Canberra Hospital is also a seven-night establishment.
28. This Statement of Claim should be read in conjunction with the Applicant’s Affidavits of 3 December 2018, 25 February 2019, and 4 October 2019, as well the Applicant’s Amended Summary Document and the formal Applicant’s Response to the Respondent’s Interlocutory Application for Disposal by Summary Dismissal orders filed on 19 November 2018.
G. Relief
29. The Applicant claims the relief specified in the Further Amended Application dated
4 October 201927 March 2020.
The Respondent’s “Amended Defence to Further, Further Amended Statement of Claim addressing issues in relation to superannuation” is dated 14th April 2020 and was as follows:
Amended Defence to Further Further Amended Statement of Claim addressing issues in relation to superannuation only pursuant to the orders of Judge Neville of 13 March 2020
The Respondent relies on the facts set out below in defence of the Applicant’s Further Further Amended Statement of Claim dated 27 March 2020 (FFASOC) addressing issues in relation to superannuation only and otherwise in defence of the Applicant’s Statement of Claim dated 24 May 2018 (SOC). The Respondent reserves its right to file an amended defence responding to issues other than superannuation in the Applicant’s Further amended Statement of Claim dated 4 October 2019 following the outcome of the Respondent’s amended application in a case dated 7 November 2019 seeking summary dismissal of the Applicant’s Further Application and Further amended Statement of Claim both dated 4 October 2019.
Unless otherwise indicated, in this Amended Defence:
(i) consistent with the usual principles of pleading, the Respondent does not plead to particulars set out in the FFASOC & SOC;
(ii) references to paragraphs are references to paragraphs of the FFASOC & SOC;
(iii) capitalised terms have the meaning given to them in the FFASOC & SOC; and
(iv) by admitting, not admitting, or denying a paragraph (or sub-paragraph) the Respondent is admitting, not admitting or denying (as the case may be) every fact alleged in that paragraph (or sub-paragraph).
The Respondent relies upon sections 544 and 545 of the Fair Work Act 2009 and denies that the Applicant is entitled to any relief in respect of any underpayments or contraventions of civil penalty provisions of the Fair Work Act 2009 allegedly occurring before the period commencing 6 years before the date of the SOC.
1. As to paragraph 1, the Respondent:
(a) admits that the Applicant is and at all material times was an employee within the meaning of s 42 and s 335 of the FW Act;
(b) admits that the Applicant is a person entitled to apply for orders in relation to a contravention of a civil remedy provision of the FW Act, but only if he is affected by the contravention; and
(c) otherwise denies the paragraph.
2. The Respondent admits paragraph 2 of the SOC and further states with reference to paragraph 2 c) of the FFASOC that the Respondent is defined as an approved authority in the Superannuation (CSS) Approved Authority Declaration 1995 made under the Superannuation Act 1976.
3. The Respondent admits paragraph 3.
4. The Respondent admits paragraph 4.
5. As to paragraph 5, the Respondent:
(a) admits that it has rostered the Applicant to work shifts between the hours from 8.15pm to 07.36am;
(b) admits that the Applicant has generally worked a shift of seven consecutive nights on and seven consecutive nights off;
(b) admits that those shifts were 11 hours and 21 minutes in length; but
(c) says that those shifts included one half hour unpaid meal break so that the Applicant actually worked 10 hours and 51 minutes per shift; and
(d) otherwise denies the paragraph.
6. The Respondent responds to Attachments A to D, which are referenced by paragraph 6, further below.
7. As to paragraph 7, the Respondent denies the facts contained therein and denies that the Applicant is entitled to all or any part of the sum claimed therein.
8. As to paragraph 8, the Respondent denies the facts contained therein and denies that the Applicant is entitled to all or any part of the sum claimed therein.
9. As to paragraph 8.1, the Respondent:
(a) says that the Respondent has at all times paid the Applicant his proper annual leave loading entitlements in accordance with the Awards / Enterprise Agreements; and
(b) otherwise denies the paragraph.
10. As to paragraph 8.2, the Respondent:
(a) says that the Applicant is estopped from making the claims set out therein;
(b) further and in the alternative, says that the Applicant is not entitled to any further penalties in respect of any night shift hours worked on Saturdays, Sundays and Public Holidays; and
(c) otherwise denies the paragraph.
Particulars
The Respondent relies upon the deed of release executed by the parties on 13 December 2017.
11. As to paragraph 8.3a), the Respondent :
(a) says that the Applicant is estopped from making the claims set out therein;
(b) further and in the alternative, says that the Applicant is not entitled to any night shift hourly penalty rate while on Personal or Carer’s leave;
(c) further and in the alternative, the Respondent says that the Applicant has been paid the 150% Public Holiday rate while on Annual leave; and
(d) otherwise denies the paragraph.
Particulars
The Respondent relies upon the deed of release executed by the parties on 13 December 2017.
12. As to paragraph 8.3b), the Respondent:
(a) says that the paragraph does not disclose any cause of action; and
(b) otherwise denies the paragraph.
13. As to paragraph 8.4, the Respondent:
(a) says that the Respondent has at all times increased the Applicant’s annual pay in accordance with the Applicant’s entitlements under the Awards/Enterprise Agreements; and
(b) otherwise denies the paragraph.
13.1. As to paragraph 8.vi of the FFASOC, the Respondent:
a) denies that it has failed to accurately calculate and adjust the Applicant’s superannuation salary in accordance with the Superannuation Act 1990, Public Sector Superannuation Scheme Trust Deed (PSS Trust Deed), or directions from the Commonwealth Superannuation Corporation (CSC);
b) further, and in the alternative, if (which is denied) the Respondent has failed to accurately calculate and adjust the Applicant’s superannuation salary, denies that such failure amounts to a contravention of the Enterprise Agreement or section 50 of the Fair Work Act 2009 or otherwise renders the Respondent liable to a pecuniary penalty;
c) denies the Applicant has suffered the estimated financial loss alleged, or at all.
14. As to paragraph 9.5, the Respondent:
(a) says that the Applicant is estopped from making the claims set out therein;
(b) denies that the Applicant has breached section 50 of the Fair Work Act 2009; and
(c) otherwise denies the paragraph.
Particulars
The Respondent relies upon the deed of release executed by the parties on 13 December 2017.
15. As to paragraph 9.6, the Respondent:
(a) says that the paragraph discloses no cause of action;
(b) denies that the Applicant has breached section 50 of the Fair Work Act 2009; and
(c) otherwise does not admit the paragraph.
16. As to paragraph 9.7, the Respondent:
(a) says that the paragraph discloses no cause of action;
(b) denies that the Applicant has breached section 50 of the Fair Work Act 2009; and
(c) otherwise does not admit the paragraph.
17. As to paragraph 10, the Respondent denies that it has failed to pay the Applicant as claimed in the paragraph.
18. As to paragraph 11, the Respondent:
(a) says that the paragraph discloses no cause of action;
(b) denies that the Applicant has breached section 50 of the Fair Work Act 2009; and
(c) otherwise d the paragraph.
19. As to paragraph 12, the Respondent:
(a) says that the paragraph discloses no cause of action;
(b) denies that the Applicant has breached section 50 of the Fair Work Act 2009; and
(c) otherwise denies the paragraph.
20. As to paragraph 13, the Respondent:
(a) says that the paragraph discloses no cause of action;
(b) denies that the Applicant has breached section 50 of the Fair Work Act 2009; and
(c) otherwise denies the paragraph.
20.1. As to paragraph 14 of the FFASOC, the Respondent:
(a) refers to and reiterates its response at paragraph 2 of this Amended Defence;
(b) relies on the terms of the Superannuation Act 1990, the Superannuation (CSS) Approved Authority Declaration 1995 and the Superannuation Act 1976 for their full force and effect; and
(c) otherwise denies the paragraph.
20.2. As to paragraph 15 of the FFASOC, the Respondent:
(a) relies on the terms of sections 3, 4 and 6 of the Superannuation Act 1990 for their full force and effect; and
(b) otherwise denies the paragraph.
20.3. As to paragraph 16 of the FFASOC, the Respondent:
relies on the terms of section 6 of the Superannuation Act 1990 for their full force and effect; and
otherwise denies the paragraph.
20.4. As to paragraph 17 of the FFASOC, the Respondent:
(a) relies on the terms of section 4 of the Superannuation Act 1990 and the PSS Trust Deed for their full force and effect; and
(b) otherwise denies the paragraph.
20.5. As to paragraph 18 of the FFASOC, the Respondent:
(a) admits that it was required to abide by and apply the provisions of the Superannuation Act 1990 and the PSS Trust Deed with respect to the Applicant’s superannuation entitlements as a member of the PSS Fund, including adjusting the Applicant’s superannuation salary on each birthday anniversary in accordance with the PSS Trust Deed; and
(b) otherwise denies the paragraph.
20.6. The Respondent denies paragraph 19 of the FFASOC and refers to and reiterates its response at paragraph 13.1 of this Amended Defence.
Particulars
(a) On 14 June 2017 the Applicant was paid a lump sum of $11,397 by way of back payment for the shortfall in the 30% night shift duty penalty which had erroneously been paid at a rate of 25% in the period January 2008 to August 2016 (the Back Payment).
(b) In January 2019, upon the Applicant’s birthday review, the Applicant’s salary for the purposes of his superannuation (Super Salary) was erroneously calculated by including the entire Back Payment as part of his salary for that year, when the Back Payment ought to have been split across the entire period to which it related, namely January 2008 to August 2016, in accordance with the Superannuation Act 1990 and the PSS Trust Deed. The erroneous calculation resulted in an overstatement of the Applicant’s Super Salary in 2019 by $10,634, meaning that the Applicant’s Super Salary was erroneously reported as $85,616, when it ought to have been $74,982.
(c) In November 2019, the Applicant (through his wife Ms Jovanovic) requested an audit be performed of the Applicant’s Super Salary. As a result of the Respondent performing the audit, the incorrect application of the Back Payment to the Applicant’s Super Salary was identified and corrected so that the Back Payment was split across the entire period to which it related, namely January 2008 to August 2016.
(d) Following the audit, the Respondent notified the Commonwealth Superannuation Corporation of the Applicant’s corrected Super Salary for the years 2008 to 2019.
20.7. The Respondent denies paragraph 20 of the FFASOC and refers to and reiterates its response and particulars at paragraph 20.6 of this Amended Defence.
20.8. As to paragraph 21 of the FFASOC, the Respondent denies that the Applicant has or will suffer the loss and damage alleged, or at all.
21. As to paragraph 15, the Respondent:
(a) says that the paragraph discloses no cause of action; and
(b) otherwise denies the paragraph.
22. As to paragraph 16, the Respondent:
(a) says that the paragraph discloses no cause of action; and
(b) otherwise denies the paragraph.
23. As to paragraph 17, the Respondent:
(a) says that the paragraph discloses no cause of action; and
(b) otherwise denies the paragraph.
24. As to paragraph 18 the Respondent:
(a) says that the paragraph discloses no cause of action; and
(b) otherwise denies the paragraph.
25. As to paragraph 19, the Respondent:
(a) The Respondent admits that the Applicant generally works a shift comprising seven consecutive nights on in any fortnight;
(b) says that the paragraph discloses no cause of action; and
(c) otherwise denies the paragraph.
26. As to paragraph 20, the Respondent denies that the Applicant is entitled to the relief specified in the Application and the statement of claim and opposes the making of the orders sought by the Applicant.
27. As to Section 1 of Attachment A, the Respondent:
(a) says that the Respondent has at all times paid the Applicant his proper annual leave loading entitlements in accordance with the Awards / Enterprise Agreements; and
(b) otherwise does not admit the Section.
28. As to Section 2 of Attachment A, the Respondent:
(a) says that the Applicant is estopped from making the claims set out therein;
(b) further and in the alternative, the Respondent says that the Applicant is not entitled to any further penalties in respect of any night shift hours worked on Saturdays, Sundays and Public Holidays; and
(c) otherwise does not admit the Section.
Particulars
The Respondent relies upon the deed of release executed by the parties on 13 December 2017.
29. As to Section 3a) of Attachment A, the Respondent
(a) says that the Applicant is estopped from making the claims set out therein;
(b) further and in the alternative the Respondent says that the Applicant is not entitled to any night shift hourly penalty rate while on Personal or Carer’s leave; and
(c) otherwise does not admit the Section.
Particulars
The Respondent relies upon the deed of release executed by the parties on 13 December 2017.
30. As to Section 3b) of Attachment A, the Respondent:
(a) says that the Applicant is estopped from making the claims set out therein;
(d) further and in the alternative, the Respondent says that the Applicant has been paid the 150% Public Holiday rate while on Annual leave; and
(e) otherwise denies the Section.
Particulars
The Respondent relies upon the deed of release executed by the parties on 13 December 2017.
31. As to Section 3c) of Attachment A, the Respondent:
(a) says that the Section discloses no cause of action; and
(b) otherwise does not admit the Section.
32. As to Attachment B; the Respondent:
(a) says that the Respondent has at all times increased the Applicant’s annual pay in accordance with the Applicant’s entitlements under the Awards/Enterprise Agreements; and
(b) otherwise does not admit Attachment B.
33. As to Attachment C, the Respondent:
(a) says that the Applicant is estopped from making the claims set out therein; and
(b) otherwise does not admit the Attachment.
Particulars
The Respondent relies upon the deed of release executed by the parties on 13 December 2017.
34. As to Attachment D, the Respondent:
(a) says that the Attachment discloses no cause of action; and
(b) otherwise does not admit the Attachment.
35. As to Attachment E, the Respondent:
(a) says that the Attachment discloses no cause of action; and
(b) otherwise does not admit Attachment E.
Applicant’s evidence
The Applicant relied upon the following Affidavits, dated respectively 3rd December 2018, 25th February 2019 (on this date, actually a Response and Outline of Submissions), 15th May 2019, and 4th October 2019. These Affidavits are referred to in the FFASOC at par.28. In addition, the Applicant filed Affidavits, dated 12th March and 30th April 2020 respectively relating to the issue of “alleged maladministration”, to which I have earlier referred.
The Applicant tendered the following documents:
(i)Exhibit A: Pay slip dated 5 April 2018;
(ii)Exhibit B: Timesheets from 1 November 2018 – 28 November 2018;
(iii)Exhibit C: Long Service Leave Calculation Guidelines (sourced from the Access Canberra website). The Respondent formally objected to this tender (in part because of its completely general nature) and was the subject of submissions, noted later in these reasons.
Respondent’s evidence
The Respondent relied upon the following Affidavits:
(i)Affidavits from Mr Sean McDonnell, dated respectively 6th November 2019 and 13th March 2020, both of which provided the Respondent’s responses, among other things, to inquiries, challenges to pay, and other calculations by the Applicant;
(ii)Affidavit of Clare Besemeres, filed 13th May 2019 (which attached the EA and a Deed of Release between the Applicant and the Respondent in relation to an earlier matter, dated 13th December 2017); and
(iii)Affidavit of Kelly Irvine, filed 17th June 2020, which annexed an expert report from Mr S Bourke, dated 1st June 2020 regarding matters of superannuation. The Applicant said that he did not accept this Report and would be filing a response to it. This did not occur.
The Applicant’s primary submissions
The Applicant’s written submissions, filed 30 June 2020, were as follows (emphasis in original):
1. The Applicant contends that the Respondent had treated him differently to all other employees in a similar situation when the Respondent undertook its unauthorised November 2019 audit of the Applicant’s Salaries and as a result, making changes to the Applicant’s PSS Member Account going back to January 2008. The changes made to the Applicant’s account resulted in the reductions of his Super Salaries which in turn resulted in much lower Final Average Salaries which are used to calculate the Applicant’s Final Benefit (PSS Pension) see the Table at the end of this document. The Respondent failed to provide any evidence that the Applicant was treated the same way as all other employees.
2. Over the last 15 years, the Applicant had chosen to contribute the highest, 10 per cent, personal Superannuation contribution with a plan to have the highest possible PSS pension when he retires. The Applicant had, of course, never been able to influence, nor had he ever been advised, as to how his Salary for Super-base for his 10 per cent contributions was calculated.
3. Ms. Fulham’s Affidavit of 28 May 2020 informed the Court as to how her Super Salary was AWOTE adjusted merely 5 months after her June 2017 back pay (June 2017 back pay) amount was paid to her during her birthday anniversary audit in November 2017, and definitely within the 12 months from the payment in June 2017. Moreover, Ms. Fulham has never had her Super Salary declared overstated by the June 2017 back pay amount by the Respondent, neither have her back paid amounts been retrospectively spread back to reflect the periods to which they related (in her case, this period was from October 2008 to September 2016).
4. The fact is that that the Respondent had mislead the Court and Mr Bourke by claiming that it was the Respondent’s Payroll who had realised that the Applicant’s Super Salary was erroneously calculated. Indeed, as elaborated in the numerous documents provided to this Court to date, it was the Applicant, not the Respondent’s Payroll, who had realised in March 2019 that his Super Salary was only AWOTE recalculated/adjusted in January 2019, instead of January 2018, nineteen months after receiving the June 2018 back pay of $11,397, and it was the Applicant who asked the Respondent’s Payroll to correct the mistake and recalculate his January 2018 Super Salary to include the $11,397 amount. As is well documented, Payroll did not admit the mistake and refused to re-audit and correct the January 2018 Super Salary.
5. The Applicant only acted in March 2019 because he had only then discovered that his Salary for Super was calculated using the AWOTE calculator freely available on the CSC website. The calculator is extremely easy to use once you have the data to fill the formula pre-filled cells.
6. The AWOTE calculator for any given birthday anniversary year can only take the data for the shift employee’s regular allowance payments amount paid to an employee during the 12 preceding months to determine if the employee’s total (regular) payments in any given fortnight were higher than that employee’s Salary for Super determined during his birthday anniversary audit in the preceding year. If there was a payment the total of which was higher than the Super Salary applicable to that fortnight, that fortnightly payment becomes the new Salary for Super threshold at the next birthday anniversary audit.
7. The Applicant emphatically rejects Mr. Stephen Bourke’s notion in his Expert Report that the one-off amount is not part of either basic salary or recognised allowance, and that the Training Notes that the CSC prescribes for the employers cannot be relied on.
Comparison with the AWOTE treatment of the June 2019 EA 2018-2021 retrospective salary increase back payment (June 2019 back payment)
8. In June 2019, the Applicant and his colleagues each received an amount of the back-calculated percentage increase in their respective levels of the Base Rate of Pay which included the appropriate portion of the permanent penalties or allowances in the Superannuation language and covering the fortnights in the period from October 2017 to June 2019 (
9. Indicatively and importantly, this retrospective, compounded Base Rate of Pay plus penalties increase, the June 2019 back payment was not declared by the Respondent as an error, an overstatement of Super Salary and a non-income and non-penalty amount, and neither had that amount been apportioned back to the fortnights for which they were calculated i.e. fortnights in the October 2017 to June 2019 period. More importantly, every shift employee’s Salary for Super, including the Applicant’s, was immediately AWOTE adjusted for the whole June 2019 back pay amount.
10. The Applicant contends that the June 2019 back payment was of the same nature as the June 2017 back payment and should be treated the same. The nature of the back payments in June 2017 and June 2019 is identical. Both relate to either the Applicant’s regular allowances and/or increases in his base rate pay. There is and cannot be absolutely no difference in how they should be treated for the PSS Super Salary calculations purposes.
11. While the June 2017 back payment related to the difference between the 30 per cent night shift penalty to which the Applicant had been entitled since 2007 and the 25 per cent early morning and late afternoon shifts he had been entitled to and paid until September 2016 in other words, the Applicant’s permanent night shift allowance to which the Applicant was always entitled the June 2019 back payment was calculated and related to the percentage differences between the Base Rate of Pay from the EA 2013 – 2017 and the current EA, 2018-2021. The June 2019 back pay amount represented a compound of the Base Rate of Pay and the relevant, applicable night shift and other regular penalties as they apply and had applied during the period from October 2017 to June 2019.
12. The Respondent failed to inform Mr Bourke that this is and has always been the Respondent’s practice and has only informed Mr Bourke of the proceedings and history of the June 2017 back payment in isolation and exclusively applying to the Applicant. Mr. Bourke’s Expert Report thus fails to deal with the Respondent’s Payroll omission to include the June 2017 back pay in the Applicant’s January 2018 AWOTE Super Salary birthday review calculations and try to explain why the Applicant’s back pay amount was only included in the AWOTE calculations 19 months later than it should have been.
13. Without going into the intricacies of the PSS Super Act and the Trust Dead, it is clear that the backpay amount of June 2017 was a one-off adjustment of a regular night shift allowance, to which the Applicant is entitled a100 per cent of the time, exactly as the June 2019 back pay amounts, and should be recognized as such.
14. Consequently, the Applicant contends that, as it has been the regular practice of the Respondent, the full amount of the June 2017 back payment should have been included in the Applicant’s AWOTE-calculated Super Salary meaning, adjusted for the full amount of the back pay then and there, in June 2017, exactly as it was done with the Applicant’s (and Ms. Fulham’s) June 2019 back pay.
15. The Applicant is proposing the following Orders:
i. That the Respondent reverses all transactions made to the Applicant’s PSS Member account following the Respondent’s November 2019 audit of the Applicant’s Salary for Super.
ii. That the Respondent instates the Applicant’s AWOTE calculated January 2019 birthday anniversary audit Super Salary of $84,211 as the Applicant’s January 2018 birthday anniversary Super Salary.
iii. That the Respondent reinstates the $84,211 January 2018 Super Salary as the January 2019 birthday anniversary Super Salary.
iv. That, as of 13 June 2019, the Respondent reinstates the Applicant’s Super Salary at $85,616. Prepared by Slavenka Jovanovic as instructed by the Applicant on 30 June 2020.
Table: Comparative overview of the Applicant and Ms. Carol Fulham’s AWOTE-calculated Salaries for Super at their respective birthday anniversaries since June 2017 following the June 2017, as specified in the Applicant and Ms. Fulham’s Affidavits of 28 May 2020.
THE
APPLICANT’S
SUPER
SALARIES
BEFORE NOV.
2019 AUDITCAROL
FULHAM
SUPER
SALARIES @
AUDITS -THE APPL.
SUPER
SALARIESE
AFTER THE
NOV. 2019
AUDITTHE
APPL.
SUPER
SALARIES
AS THEY
SHOULD
HAVE
BEENLOWER
OFFICIAL
PSS
PENSION
FROM 3
JUNE 20
RESULT
OF THE
NOV. 2019
AUDITPSS PENSION
ESTIMATE
IF THE SUPER
SALARY IS
RECALCULATED@29 JAN 18
Super salary not
adjusted for the
$11,357 back pay
Amount$73,158
@30 NOV 17
Super salary
adjusted for June
2017 back pay &
increased by
$9,505,53 from
$69,938 to
$80,221@29 JAN 18
$73,583
@JAN 18
$84,211
@3 JUN 20
$34,783pa
@3 JUN 20
ESTIMATED @
OVER$40,000pa
@JAN 19
adjusted 14
months later than
Carol Fulham’s
Super salary.
Increased from$73,158 to
$84,211@NOV 18 CF’s
birthday
anniversary$83,491
@JAN 19
$74,982
@JAN 19
$84,211
@13 JUNE 19
Salary & penalty
increase back pay$85,616
@13 JUNE 19
Salary & penalty
increase back pay$84,990
@JUNE 19
$74,982
@JUNE 19
$85,616
@JAN 20
BIRTHDAY
ANNIVERSARY
–reduced from$85,616 to
$76,530@NOV 19
BIRTHDAY
ANNIVERSARY
– unchanged
since June 2019$84,990
@JAN 20
$76,530
@JAN 20
ONWARDS$87,164
The Respondent’s primary submissions
The Respondent’s written submissions, filed 1st July 2020, were as follows (footnotes omitted; emphasis in original; paragraph numbering has been corrected):
1. These submissions are provided pursuant to order 3 of the Orders of Judge Neville on 2 June 2020. They address the outstanding issue of the Applicant’s claim in respect of administration of his superannuation salary (Super Salary Issue) which was not otherwise addressed by the parties in oral submissions at the hearing on 13 March 2020 in light of the expectation that the parties would file further evidence on this issue. The parties have now filed that further evidence.
2. For the Applicant’s part the further evidence has comprised (a) affidavit of Milenko Jovanovic affirmed 30 April 2020; (b) affidavit of Carol Fulham affirmed 27 May 2020; and (c) affidavit of Milenko Jovanovic affirmed 28 May 2020.
3. For the Respondent’s part, the further evidence has comprised the affidavit of Kelly Irvine sworn 17 June 2020 enclosing the expert report of Mr Steven Bourke dated 1 June 2020 (Bourke Report).
Summary of Super Salary Issue
4. The Applicant’s claim in respect of the Super Salary Issue is set out in paragraphs 8.vi and 14-21 of the Applicant’s Further Further Amended Statement of Claim filed 27 March 2020. It is responded to in paragraphs 13.1 and 20.1-20.8 of the Respondent’s Amended Defence filed 15 April 2020.
5. In summary, the dispute with respect to the Super Salary Issue has arisen as follows:
(a) In June 2017 the Applicant was paid a lump sum of $11,397.49 by way of back payment for the shortfall in the 30% night shift duty penalty which had erroneously been paid at a rate of 25% in the period January 2008 to August 2016 (the Back Payment). It is uncontroversial in these proceedings that the Applicant was entitled to the Back Payment and it was properly made.
(b) In January 2019, upon the Applicant’s birthday review of salary for superannuation purposes, the Respondent calculated the Applicant’s salary for the purposes of his superannuation (Super Salary) by including the entire Back Payment as part of his salary for that year.
(c) In March 2019, the Applicant raised with payroll staff of the Respondent that he considered there had been an error in calculation of his Super Salary in that the inclusion of the Back Payment as part of his salary for superannuation purposes ought to have occurred on the previous birthday review in January 2018, rather than on the birthday review in January 2019.
(d) The Respondent did not agree that an error had been made but invited the Applicant to contact the Commonwealth Superannuation Corporation (CSC) to confirm the appropriateness of the Super Salary calculation.
(e) On 26 March 2019, the Applicant contacted the CSC regarding the calculation of his Super Salary in light of the Back Payment. The CSC advised that investigations into the issue were underway. Further correspondence occurred between the Applicant and the CSC in June – July 2019. On 5 July 2019 the CSC provided advice to the Applicant that it had informed the Respondent that the Respondent had made an error in the calculation of the Super Salary by not spreading the Back Payment across the paydays on which it was actually earned.
(f) In November 2019, Respondent’s payroll staff performed an audit of the Applicant’s Super Salary. As a result of the audit, the Respondent identified the incorrect application of the Back Payment to the Applicant’s Super Salary, in that the entire amount of the Back Payment had been included in his Super Salary following the birthday review in 2019 whereas (as advised by the CSC) the Back Payment ought to have been split across the entire period to reflect the paydays on which it was actually earned (i.e. over the period January 2008 to August 2016).
(g) The Respondent determined that the erroneous application of the Back Payment resulted in an overstatement of the Applicant’s Super Salary in 2019 by $10,634, meaning that the Applicant’s Super Salary was erroneously reported as $85,616, when it ought to have been $74,982.
(h) Following the audit, the Respondent’s payroll staff corrected the Applicant’s Super Salary for the years 2008 to 2019 and notified the CSC of the same. The CSC confirmed to the Respondent’s payroll staff that this process was correct.
(i) The Applicant disputes the correction made by the Respondent and maintains that the entire Back Payment ought to have been included in his Super Salary following the birthday review in January 2017 or January 2018. He rejects that the Back Payment should be applied to adjust his Super Salary for each year over the period 2008-2016, primarily because (in his view) there was no legal basis for the higher shift penalty amount (i.e. 30% rather than 25%) to be paid to him prior to 9 August 2016. He asserts that the Respondent is in breach of the Superannuation Act 1990 and the PSS Trust Deed. He further asserts that he has or will sustain economic loss as a result of this breach.
Assessment of further evidence
Affidavits of Milenko Jovanovic affirmed 30 April 2020 and 28 May 2020
6. The affidavits of Milenko Jovanovic affirmed 30 April 2020 and 28 May 2020 set out various correspondence between the parties following the hearing on 13 March 2020, including as to the provision of further records requested by the Applicant and the briefing of an expert for the purposes of obtaining an expert report.
7. That procedural correspondence is not relevant to the substantive issue which the Court must now determine in order to resolve the Super Salary Issue. It is sufficient to note that the outcome of that correspondence was that the Applicant ultimately did not obtain an expert report on the Super Salary Issue and this was done instead by the Respondent through the Bourke Report.
8. The affidavit of Milenko Jovanovic affirmed 30 April 2020 also set out the Applicant’s correspondence with the CSC in March 2020, culminating with a response from the ‘CSC Customer Care’ on 27 March 2020 (extracted at paragraph [11] of the affidavit). In summary that correspondence confirmed the general method by which Super Salary is calculated for members of the PSS, including the review that is to be undertaken on a member’s birthday each year, and when Super Salary should include shift penalties, namely when the penalties are payable on a regular basis. Nothing in that response is controversial or at odds with the approach adopted by the Respondent.
9. The affidavit of Milenko Jovanovic affirmed 28 May 2020 also discusses the Applicant’s basis for believing that he has been treated differently compared to other employees of the Respondent in respect of the Super Salary Issue. That evidence is also not relevant to the substantive issue which the Court must now determine. Whether the Respondent has correctly calculated any other employee’s Super Salary in light of the Back Payment is not probative to the issue of whether the Respondent has calculated the Applicant’s Super Salary correctly in light of the Back Payment.
10. The Respondent would merely add that it is perfectly appropriate for it to have awaited the outcome of the review of this issue undertaken through these proceedings and culminating in it obtaining the Bourke Report before reviewing the position with respect to other employees who received the Back Payment.
Affidavit of Carol Fulham affirmed 27 May 2020
11. This affidavit contains evidence as to the way in which the Super Salary Issue has been dealt with in respect of another employee of the Respondent who received the Back Payment. For the reasons given in paragraphs [9]-[10] above, that evidence is not probative to the substantive issue which the Court must now determine.
Bourke Report
12. The Bourke Report details the manner in which the Applicant’s Super Salary is to be determined according to relevant governing instruments for the PSS including, most notably, the Superannuation (Salary) Regulations (CSS) 1978. Paragraphs [20]-[21] of the Bourke Report explain how it is that those Regulations apply to determining Super Salary for the purposes of the PSS.
13. Without repeating the full contents of the Bourke Report, it contains the following key conclusions on the Super Salary Issue which confirm the correctness of the Respondent’s calculation of the Applicant’s Super Salary in light of the Back Payment (emphasis added):
26. The Applicant’s pay in the pay period commencing 15 June 2017 and ending 26 June 2017 included a payment in the amount of $11,397.49. However, while this was the highest amount of salary in respect of a pay period, it was not payable on a regular basis. It was a payment on a one-off basis for the error in underpayment of night shift penalties for the period January 2008 to August 2016. It was also not an amount that was payable for a shift allowance in respect of the period in which it was paid. It was payment for a shift allowance in respect of a number of earlier periods.
27. I have concluded therefore that the Applicant’s contention must fail. The appropriate method is to exclude the back payment on the basis that it is not a regular payment (r.8D(1)(c) of the Superannuation (Salary) Regulations (CSS) 1978) and it was not for a shift allowance in respect of the period in which it was paid (r.8A of the Superannuation (Salary) Regulations (CSS) 1978).
28. The appropriate method of calculating the Applicant’s superannuation salary for the period January 2008 to August 2016 in light of the back payment received by the Applicant in June 2017 in respect of the 5% shortfall in night shift penalty over that period is to apportion the payment over all the pay periods in the requisite period.
…
30. The period in which the employee performed the work in respect of which the payment was made was in the period January 2008 to August 2016. It was not in the period in which the payment was made. The payment should therefore be apportioned over that period in which the work was performed (ie January 2008 to August 2016) for the purposes of the calculation of superannuation salary.
…
34. However, as noted in answer to Question 1, the inclusion of the amount of $11,397 is not correct on the basis that the provisions of the Trust Deed and Rules require the application of the definitions as provided in the PSS Trust Deed and Rules together with the associated statutory instruments. The result of the tracing of the relevant definitions that apply show that the one off amount is not part of either basic salary or recognised allowances. It therefore cannot be included in the AWOTE calculations as the Applicant contends. The training notes that the Applicant refers to do not have a statutory basis and also cannot be relied on.
Contentions
14. The Respondent relies on the Bourke Report in support of the correctness of the calculation of the Applicant’s Super Salary, in particular the key conclusions as extracted above.
15. While the Applicant has indicated that he does not accept the Bourke Report, he has not (at least by the date of these submissions) provided any reasons for adopting that position.
16. In any event, the Applicant has no expertise in the area of superannuation and his evidence as to the correct calculation of his Super Salary cannot, the Respondent respectfully submits, be preferred over the evidence of Mr Bourke as a suitably qualified expert in the field of superannuation.
17. The Applicant’s reference to advice provided to him by the CSC also offers no support for his position either. As explained at paragraph [8] above, nothing in the CSC’s general advice of 27 March 2020 is contrary to the position adopted by the Respondent and confirmed in the Bourke Report. Further, the earlier advice provided by the CSC to the Applicant on 5 July 2019 in fact confirms the correctness of the position adopted by the Respondent and supported by the Bourke Report. That advice was as follows:
Good morning Mr Jovanovic
We informed your employer that the allowance arrears amount should have been spread across the paydays which it was actually earnt on, and shouldn't have been included as a single lump sum which was the main issue. There were a few other potential issues, however the main discrepancy was their treatment of the arrears being included on a single payday.
18. Accordingly, the Respondent submits that there is no basis on the evidence filed by the parties for the Court to conclude the Super Salary Issue in favour of the Applicant. That aspect of the Applicant’s claim must therefore be dismissed with costs.
Outline of principle
There is a significant body of jurisprudence regarding the construction and interpretation of industrial instruments, in which term I include enterprise agreements of the kind currently under consideration. For immediate purposes, it is sufficient to note the following general principles.
First, in AMCOR Limited v Construction, Forestry, Mining and Energy Union, the High Court (Gleeson CJ and McHugh J) said, at [2]:[9]
The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular organisation.
[9] AMCOR Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (“AMCOR v CFMEU”). See also the comments by Kirby J to similar effect, at [77].
Secondly, in AMCOR v CFMEU, at [96], Kirby J referred to a long-cited passage from the Federal Court decision in Kucks v CSR Ltd (Madgwick J):[10]
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
[10] Kucks v CSR Ltd (1996) 66 IR 182 at 184. The same passage was also cited by Callinan J in AMCOR v CFMEU, at [129].
Thirdly, still in AMCOR v CFMEU, at [97], Kirby J observed that it was appropriate to consider the agreement before the High Court using a “broad interpretation” but at the same time cautioned or noted that a more precise document, with a different context, history and purpose, may give a different result.
Fourthly, admittedly in the context of contract law and agreements generally, in Toll (FGCT) Pty Limited v Alphapharm Pty Limited, the High Court said, at [40] (internal citations omitted):[11]
This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
[11] Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165.
Having regard to the various “constructions” or interpretations advanced by the Applicant in relation to each of his claims (it is no criticism to confirm again that he is self-represented), it is critical to emphasise the High Court’s point that objective, and not a subjective, interpretation of relevant clauses in an enterprise agreement, is crucial to the determination of the issues before the Court.
Consideration & disposition
Issue 1: Non-payment of annual leave loading - Section F.8 of the EA
Section F.8 of the EA provides as follows:
F.8 ANNUAL LEAVE LOADING
Purpose
F8.1 Annual leave loading is available to employees to provide monetary assistance while they are on annual leave.
Eligibility
F8.2 Employees who accrue annual leave under clause F7 are entitled to an annual leave loading. Part time employees will be paid the annual leave loading on a pro rata basis.
Entitlement
F8.3 Where an employee's entitlement is based on paragraph F8.7 (a), the leave loading payable is subject to a maximum payment. This maximum payment is the equivalent of the Australian Bureau of Statistics' male average weekly total earnings for the May quarter of the year before the year in which the date of accrual occurs. Where the leave accrual is less than for a full year, this maximum is applied on a pro rata basis.
F8.4 An employee whose employment ceases and who is entitled to payment of accumulated annual leave or pro rata annual leave will be paid any accrued annual leave loading not yet paid and leave loading on pro rata annual leave entitlement due on separation.
Evidence and Conditions
F8.5 Annual leave loading accrued will be paid at such a time as the employee nominates, by making a written request to the head of service.
F8.6 Any unpaid annual leave loading accrued by employees will be paid on the first payday in December following its accrual.
Rate of Payment
F8.7 The amount of an employee's entitlement under subclause F8.2 will be based on whichever is the greater of the following:
a) subject to subclause F8/3, 17/5 per cent of the employee’s ordinary hourly rate of pay on 1 January multiplied by the number of hours of annual leave accrued during the preceding calendar year (excluding shift penalties); or
b) any shift penalties that the employee would have received had the employee not been on approved annual leave.
In addition to the written submissions set out earlier in these reasons, summarised, the Applicant submitted at the hearing as follows:
(a)All workers received their annual leave loading on 1st January but shift workers were never been paid such loading (which, it was submitted, was “gross incompetence”);
(b)The Applicant’s salary comprised his “base salary” plus penalties;
(c)The Applicant is a permanent night shift worker, whose payment for annual leave is his full rate of pay, being his “ordinary hourly rate of pay”, which everyone receives, regardless of which shift is being worked;
(d)The relevant annual leave loading payable to shift workers is 17.5%, which the Applicant said he was not (and had not been) receiving.
Again, subclause C8.3 of the EA 2013-2017 does not prescribe that the Applicant should not be paid the Applicant’s normal penalties awarded to the Applicant through subclause C8.4 (which includes not only the C8.2 penalty but also the C8.5, C86 and C8.7 penalties) while the Applicant is on Long Service Leave.
Clause F2.15 of the EA 2013-2017 – Long Service Leave – prescribes that:
F25.1 The eligibility requirements and entitlements for long service leave under the PSM Standards apply subject to the provisions of this clause.
Part 4.3, Section 264 – Entitlement – long service leave – subsection (4) of the Public Sector Management Standards 2006 prescribes that:
264 Entitlement—long service leave
(4) For a category A officer (ie. a full time employee) who works full-time long service leave accrues at a rate of three months for every 10 years of service.
Note After seven years a category A officer who works full-time will have a long service leave credit of 2.1 months.
Part 4.3, Section 266 – Rate of payment—long service leave – subsections (1) and (4) of the Public Sector Management Standards 2006 prescribe:
266 Rate of payment—long service leave
(1) In this section:
current rate of salary means the salary an officer received on the relevant day.
……
(5) A category A officer will receive the current rate of salary or relevant rate per week on the relevant day in relation to any part of long service leave they are granted if—
(a) the officer’s eligible employment has been in a full-time capacity; or
(b) in a part-time capacity with no change in their ordinary hours.
As discussed previously, the Applicant’s ‘base rate of pay’ should naturally include all relevant penalties – averaging 43% per annum on the Applicant’s hourly base rate of pay, as intended under various the Enterprise Agreement, wether the Applicant is working on absent on any form of accrued leave, be it Annual, Personal, Carers or Long Service Leave.
CONCLUSION
To conclude, because the Applicant’s permanent non-rotating night shift is very much akin to the normal 8:30am to 5pm work day of any other Public Service non-shift employee, the Applicant’s hourly rate should always for all purposes been inclusive of all aggregate 43% penalties to which the Applicant is entitled during a year.
It would maybe be easier to grasp the extent of the Respondent’s catastrophic administration mistakes if its treatment of the Applicant were to be compared with the treatment of any non-shift office or non-office based employee of the Respondent.
It would not be hard to imagine the outcry that would ensue if a non-shift employee were to be insulted and denigrated in this fashion by the Respondent’s administration.
Just imagine the outcry had the Respondent ever tried to deny any non-shift employee on any level of employment and under any Award/Enterprise Agreement in the ACT Public Service their full entitlement while on any kind of leave, be it Annual, Personal, Carers or Long Service Leave, or to try not to pay them the Saturday, Sunday or Public Holiday penalty rate, or to reduce their pay for any other reason!!!
While even an idea of denying the non-shift workers their entitlements sounds inconceivable, the Respondent has been allowed to mistreat not only the Applicant, but also all other permanent night shift workers and deny them their full basic entitlements, such as Annual Leave Loading, non-payment of the 30% night shift penalty on Saturdays, Sundays and Public Holidays, the non-payment of the 150% Public Holiday rate while on Annual Leave, and denying to pay ANY penalty while the Applicant is on Personal, Carers or Long Service Leave.
ATTACHMENT B
8(v). NO ANNUAL INCREMENTAL PAY INCREASES SINCE 2003
Clause C5.5 of the EA 2013-2017 and the relevant clauses in the previous Awards/Enterprise Agreements prescribes that an employee is entitled - subject to there being no Underperformance or Discipline action undertaken in accordance with Section H – Workplace Values and Behaviors – to be paid an annual increment on and from the relevant anniversary of the date of commencement in the position for the employee concerned.
According to subclause S1.5 of the EA 2013-2014 below, and the corresponding subclauses in all Enterprise Agreements since Section BB was first introduced in the EA 2007-2010, a Trainee Wardsman will be advanced to an HSO3 after (only) three months of service.
Competency Assessment
S1.5 After no more than three months of training and employment, the employee will be assessed to determine if the employee meets the required level of competency. If the employee meets the required level of competency, the employee will be advanced in classification in accordance with subclause S1.9.
Advancement in Classification
S1.9 Following satisfactory competency assessment, an employee shall be advanced to Health Service Officer Grade 3.
Importantly, Section S prescribes, at clause S1.10 that the date on which an employee is assessed as fully competent, will become the ‘employee’s anniversary date for incremental advancement purpose’:
S1.10 The date of effect of the employee’s advancement in classification will be the date at which the employee was assessed as fully competent. This date will also become the employee’s anniversary date for incremental advancement purpose.
Subclause S1.10 prescribes that a further incremental increase in pay should happen on the employee’s anniversary date every subsequent year after the trainee is first assessed as fully competent.
No Enterprise Agreement since 2007 prescribes any band limitations between the HSO levels and any requisite for advancement assessment.
It is simply hard to understand and accept the fact that after almost 18 years of excellent service and without any Underperformance or Discipline action, the Applicant’s rate of pay is still sitting only at the fourth increment within the Health Services Officer 3 level.
ATTACHMENT C
8(vi). THE 5% BACK PAYMENT NON-PAID PSS MEMBERS AND EMPLOYER CONTRIBUTIONS MALADMINISTRATION ISSUE - MALADMINISTRATION CAUSED ERRORS IN SUPER SALARY FOR PSS PENSION CALCULATION PURPOSES
On 29 June 2017, the Applicant received an amount of $11,725.61 which represented a cumulative amount representing around 8.5 years-worth 5% underpayment covering the period from 24 January 2008 to September 2016.
The 5% represents the difference between the C8.2 prescribed 30% permanent night shift penalty rate that should have applied to the Applicant since 2007 and the wrongly applied S3.1 prescribed 25% penalty.
The ATO prescribes that the correct procedure for correcting mistakes made in current and previous FYs: ‘If you are making back payments applying to current and previous financial years, apportion the back payment between those years and then use the applicable method for each component to calculate withholding.’
Instead of following the Australian Taxation Office prescribed procedure for the correction of all underpayments, the Respondent simply paid the whole gross underpayment amount of $11,725.61 in June 2017 (more than 10 months since the Respondent became aware of the administrative mistake), thereby incorrectly affecting only one financial year (2016/17).
The correct procedure is prescribed on the Australian Taxation Office’s website at:
.
In addition to this mistake, the Respondent appears not to have paid any superannuation contributions on this amount. The Applicant’s superannuation statement shows no increase/adjustment in my superannuation salary for the 2016/17 tax/superannuation.
According to the advice received from the Commonwealth Superannuation Corporation presented in the Applicant’s Affidavits of 15 May 2019 and 4 October 2019, it is evident that the Respondent’s administration was not willing to provide adequate information which would have enabled the CSC to make a proper assessment of the seriousness of the mistakes in the Super Salary re-calculations that were not done as prescribed by the CSC.
The Respondent was instructed by the CSC to contact the Applicant in relation to his Super Salary recalculations as instructed by the CSC but has not done so to date.
As with other maladministration-caused issues, the mistakes in the Super Salary calculations maladministration is a direct consequence of the Respondent failure to properly train the Payroll personnel.
ATTACHMENT D
8(vii) DISCRIMINATION AGAINST PERMANENT NIGHT-SHIFT WORKERS THROUGH INADEQUATE PENALTY INCREASE IN THE 2007-20010 ENTERPRISE AGREEMENT – A FURTHER BREACH OF THE FAIR WORK ACT 2009
This discriminatory underpayment stems from the introduction of a disproportionately high penalty rate increase awarded to what may be called part-time night-shift through the already mentioned Section BB of the ACT Public Sector Support Services Enterprise Agreement 2007‑2010.
Through the one-sided penalty increase awarded to the Applicant’s part time night shift and afternoon shift counterparts for the first time through Section BB in the EA 2007-2010, the Respondent drastically undermined the monetary value of the Applicant’s permanent, non-rotating seven consecutive night shift.
When the Applicant first started working as a permanent night shift wardsman in 2001, several wardsman worked day shifts which included a couple of hours into the night shift. To the Applicant’s knowledge, they were at the time awarded a penalty rate of 15% for any night shift hour they worked[18].
[18] The 15% penalty is still prescribed by the current Enterprise Agreement and the Health Industry Award as the appropriate award for all other partial night time shift employees.
As already explained, unlike the day and afternoon shifts at the Canberra Hospital, the night shift works 76 hours straight in a seven-night-on, seven-night-off roster, from one Thursday evening to the next Thursday morning.
From 2001 to 2007, the penalties for the permanent night shift employees and penalties for the night shift hours for day and afternoon shift workers remained unchanged (at least this is what the Applicant thought was the fact). From 2001 to up until EA 2007-2010, the Applicant was paid the 25% additional penalty for every hour the Applicant worked, and the day and afternoon shift wardsman were paid the 15% penalty for any shift hours they worked, on condition that some of the hours worked were between 6:00 pm and 6:30 am.
The 2007-2010 Enterprise Agreement brought about a drastic change. It introduced Section BB – The Canberra Hospital, a section corresponding Section S in the current Enterprise Agreement, which dramatically changed the relationship between the part time night shift employees now covered by S3.1 of the EA and the proper, permanent non-rotating seven consecutive night shift employees now covered by clause C8.2 of the EA.
Through clause BB33.2, the Applicant was awarded the new Industry Award standard 30% penalty rate instead of the old 25% penalty rate for the Applicant’s permanent, non-rotating night shift hours, a mere 20% increase:
BB33.2: An employee who is a shift worker and who is required to work ordinary hours continuously for a period exceeding four weeks on a shift falling wholly within the hours of 6:00 pm and 8:00 am, will be paid an additional 30% of the ordinary hourly rate of pay for that shift,
Through clause BB163.1 – now subclause S3.1 – Wardsman, Food Services and Sterilising Services officers in a shift any part of which falls between the hours of 7pm and 7am were awarded a more than treble, 66.5% increase in their penalty for all hours worked by awarding those employees a 25% penalty rate instead of the Industry Award standard 15% penalty rate:
33.1: An employee who is a shift worker and who is rostered to perform and performs ordinary duty on a shift, any part of which falls between the hours of 6:00 pm and 6:30 am, will be paid an additional 15% of the employee’s ordinary hourly rate of pay, for that shift.
33.2 An employee who is a shift worker and who is required to work ordinary hours continuously for a period exceeding four weeks on a shift falling wholly within the hours of 6:00 pm and 8:00 am, will be paid an additional 30% of the ordinary hourly rate of pay for that shift.
BB163.1: Despite clause 33.1 an employee who is a shift worker employed as a Health Service Officer in Ward Services, Food Services and Sterilising Services or as a Technical Officer in Sterilising Services and who is rostered to perform and performs ordinary duty on a shift, any part of which falls between the hours of 7:00 pm and 7:00 am, will be paid an additional 25% of the employee’s ordinary hourly rate of pay, for that shift.
To repeat, the Respondent awarded the Applicant, a permanent non-rotating seven-night wardsman only a 20% penalty increase, and the then clause BB163.1-part time covered day shift wardsman a 66.5% penalty.
With this action, the Respondent grossly devalued the night shift work because of its actions, the hourly difference between the afternoon and night shifts from Monday to Friday is only about $1.27. Please note that, due to the Respondent’s wrong application of the Awards/Enterprise Agreements, the afternoon shift and the permanent night shift are paid exactly the same on weekends and Public Holidays, which is absolutely unacceptable.
The identical copies of clauses 33.2 and BB163.1 are now clauses C8.1, C8.2 and S3.1:
C8.1 An employee who is a shift worker and who is rostered to perform and performs ordinary duty on a shift, any part of which falls between the hours of 6:00 pm and 6:30 am, will be paid an additional 15% of the employee’s ordinary hourly rate of pay, for that shift.
C8.2 An employee who is a shift worker and who is required to work ordinary hours continuously for a period exceeding four weeks on a shift falling wholly within the hours of 6:00 pm and 8:00 am, will be paid an additional 30% of the ordinary hourly rate of pay for that shift.
S3.1 Despite subclause C8.1 an employee who is a shift worker employed as a Health Service Officer in Ward Services, Food Services and Sterilising Services who is rostered to perform and performs ordinary duty on a shift, any part of which falls between the hours of 7:00 pm and 7:00 am, will be paid an additional 25% of the employee’s ordinary hourly rate of pay, for that shift.
The Applicant has calculated the pecuniary loss due to the loss of income through lower penalty increase for the period from 6 September 2013 to 6 September 2019 to be $113,940. This amount is comprised of $7,056 in superannuation, $36,603 in the General Interest Charge calculated annually and $70,555 in principal.
ATTACHMENT E
Summary Statement
Background and the nature/conditions of employment
The Applicant’s claim against the Respondent is detailed in this Statement of Claim. Incorporating the proposed amendments outlined in paragraph Error! Reference source not found. above, the essential matters may be summarised as follows.
On or about 1 November 2001, Applicant commenced employment with the Respondent in a permanent capacity as a night shift wardsman at the Canberra Hospital, located in Garran in the ACT.
At all material times, the relevant particulars of the Applicant’s employment with the Respondent were as follows:
The Applicant was rostered to work between 8:15pm to 7:36am (shift duration of 11 hours and 21 minutes) by the Respondent for 7 consecutive night shifts per fortnight, starting from 8:15pm on every second Thursday night and ending at 7:36am on the next Thursday morning. totalling 75.95 hours over any fortnight. Each consecutive 7-night shift in any fortnight comprised of 5 weeknights, a Saturday night and a Sunday night.
The Applicant was paid various base wages per hour during the periods immediately preceding 6 years of his employment.
At all material times in the past, the Applicant has been receiving the 30% night shift loading on weeknights only, 50% loading on Saturdays, all hours, 100% loading on Sundays, all hours, and 150% loading on Public Holidays, all hours. The average loading has to date been calculated as such: (30% + 30% + 30% + 30% + 30% + 50% + 100%)/7 = 43%.
It is important to note that the Applicant should have been receiving the 30% night shift penalty loading for all hours of his consecutive seven night shifts, 50% additional loading on Saturdays, 100% additional loading on Sundays and 150% additional loading on Public Holidays. The actual average penalty rate should have been calculated as such: (30% + 30% + 30% + 30% + 30% + (30% + 50%) + (30% + 100%)/7 =51%[19].The night shift penalty rate should have been increased to 42%, to receive the same penalty increase as the day shift co-workers[20].. The thus calculated average night shift penalty rate used in the relevant calculations table is calculated as such: (42% + 42% + 42% + 42% + 42% + (42% + 50%) + (42% + 100%)/7 =63%.
[19] Note that the Applicant is not including the Public Holiday loading rate into the calculations as it is available to 14 shifts a year only and does not significantly influence the actual rate.
[20] The Applicant received a 20% increase on his then 25% night shift penalty rate versus a 66.5% increase on the then 15% penalty rate for the day shift employees (see S3.1 of the EA13-17). The 66.5% increase is applied to the Applicant’s 25% base to arrive to the 42% night shift penalty and the 63% average night shift penalty used in the calculations.
The Applicant has used 658.7 Personal leave hours as the base for the calculations.
The Applicant has used 1,931.5 Long Service hours as the base for the calculations.
Non-payment of Annual Leave Loading
10.A clear and unambiguous instruction of subsection C8.4 is that, as a full-time night shift employee of the Respondent, I am also entitled to receive all clause C8 prescribed penalties while on Annual Leave.
11.Subclause F8.1 of clause F8 – Annual Leave Loading – states that ‘Annual Leave Loading is available to employees to provide monetary assistance while they are on annual leave’.
12.The aggregate Clause C8 penalty amounts (ie. calculated as penalties prescribed by C8.2, C8.5, C8.6 and C8.7), while forming the basis for my Annual Leave Loading calculations as prescribed in subclause F8.7(b), are not the Applicant’s Annual Leave Loading amounts to which he is entitled to as prescribed by subclause F8.7(b) while on Annual Leave. No amounts of Annual Leave Loading were not paid to the Applicant except the two payments shown on my personnel records in 2001 and 2018.
No subclause C8.2 night shift penalty for Saturday, Sunday and Public Holiday night shifts
13.Subclause C8.2 of the EA 2013-2017 unambiguously states that an employee who is a shift worker and who is required to work ordinary hours continuously for a period exceeding four weeks on a shift falling wholly within the hours of 6:00 pm and 8:00 am, will be paid an additional 30% of the ordinary hourly rate of pay for that shift.
14.The Applicant permanently works seven consecutive night shifts in 10.51h duration or 76 hours in any given fortnight on a week-on-week-off basis.
15.The Applicant has only ever been paid the 30% night shift penalty for five nights or 54.25 hours out of the 76 hours in any given fortnight. In other words, the Respondent has never paid two night shift worth or 21.7 hours of the Applicant’s full fortnightly entitlement as prescribed by subclause C8.2.
No clause C8 night shift penalties while on Personal and Carer’s leave
16.Section F of the EA 2013 2017 provides for various types of leave for all employees. Clause F.4 covers Personal leave for all employees.
17.There are no special rules in any part of Section F that specifically apply to shift employees.
18.Subclause F4.1 of the EA 2013-2017 provides for Personal leave to be available to (all) employees to enable them to be absent from duty because the employee is unfit for work because of a personal illness, or personal injury; to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who is ill or injured in extraordinary and unforeseen circumstances.
No clause C8 penalties while on Long Service Leave
19.The Applicant is a full-time employee of the Respondent. The Applicant’s Ordinary or Full Remuneration in any given year is an aggregate of his base pay payments plus all clause C8 penalties, as directed by subclause C8.4 of the EA.
20.Subclause F25.1 of the EA prescribes that that the eligibility requirements and entitlements for Long Service Leave under the PSM Standards apply subject to the provisions of this clause (F25). Clause F25 does not prescribe the Rate of Payment of Long Service Leave.
21.The Long Service Leave Act 1976 under Part 2 – Important Concepts – subsection 7.1 prescribes that: ‘Payment for long service leave shall be made at the rate of an amount equivalent to the ordinary remuneration the employee would have received in respect of the period of leave if he or she had not taken the leave.’
No incremental increase in base rate pay on the first day at HSO3 level anniversary since 2004
22.Subclause S.1 of the EA is explicit and unambiguously states that Section S (ie., clause S) applies only to the Health Service Officers employed in Ward Services of The Canberra Hospital.
23.The Applicant is an Officer of the Respondent to which Section S applies. Therefore, the Applicant’s classification/base wage rate should have been incrementally advanced annually on the first anniversary of his becoming an HSO3 level officer in 2000, as prescribed in subclause S1.10 of the EA.
24.The Applicant has not received any incremental increases in classification since 2004.
Failure to appropriately increase the Applicant’s hourly penalty night shift rate from 2007
25.The Applicant is a wardsman and as such, Section S covered employee. The Applicant permanently works night shift hours between 6pm and 8am. His shift never shifts/rotates.
26.Subclause S3.1 – Payment for Shift Workers Employed as HSOs Employed in Ward Services, Food Services and Sterilising Services of the Enterprise Agreement expressly and unambiguously replaces the additional 15% penalty rate for the early morning and late afternoon shift employees prescribed in C8.1 with a new, 66.5% higher, additional 25 per cent penalty rate.
27.In 2007, the Respondent failed to introduce a subclause under section S – a missing subclause S3.2 - which would have provided the Applicant, a permanent night shift employee to which Section S applies, with an adequately increased night shift hourly rate as a higher rate alternative for the 30% night shift rate prescribed in C8.2.
Negative implications of the HR Super Salary Review error caused by the Respondent’s maladministration and as a result, a loss in PSS pensions over the next 20 years
28.On 5 July 2019, the Commonwealth Superannuation Corporation (CSC) advised the Applicant that they have informed his employer (the Respondent’s payroll) that any allowance arrears amounts should have been spread across the paydays which they were actually earnt on, and shouldn’t have been, as any other regularly paid allowances paid as one back pay amount in one fortnight, included as a single lump sum in the June 2017 payday. CSC further advised that, having done so, the Applicant’s Super Salary for PSS pension purposes, should have been retrospectively adjusted on his birthday on 29 January 2017, not 2 years later, in January 2019.
Key Legal Topics
Areas of Law
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Administrative Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Breach
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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