Mitchell v G and M Childcare Centres Pty Ltd - [2015] FCCA 718

FEDERAL CIRCUIT COURT OF AUSTRALIA

MITCHELL v G & M CHILDCARE CENTRES PTY LTD

[2015] FCCA 718

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – small claims procedure – unavailability of pecuniary penalties in proceedings governed by the small claims procedure.

Legislation:

Workplace Relations Act 1996, ss.717, 719, cls.32, 34, 43 of sch.8
Fair Work (Transitional Provisions & Consequential Amendments) Act 2009, item 11 of sch.2, items 2, 29 of sch.3, item 6 of sch.4,
Fair Work Act 2009, ss.43, 44, 45, 87, 89, 90, 117, 285, 323, 539, 545, 548, 570
Annual Holidays Act 1944 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW), s.199

Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW)

Cases Cited:

Armory v Delamirie (1722) 1 Stra 505; 93 ER 664

Houghton v Immer (1997) 44 NSWLR 46

Applicant:

RENEE JADE MITCHELL

Respondent:

G & M CHILDCARE CENTRES PTY LTD ABN 34 122 675 601 T/AS THE PINES ACADEMY CHILD CARE CENTRE

File Number:

SYG 2670 of 2012

Judgment of:

Judge Cameron

Hearing date:

10 March 2014

Date of Last Submission:

8 April 2014

Delivered at:

Sydney

Delivered on:

7 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr L. Tyndall, by leave

Solicitors for the Applicant:

Coutts Solicitors & Conveyancers

Counsel for the Respondent:

Mr L. Fermanis, by leave

Solicitors for the Respondent:

Pserras Lawyers

ORDERS

Judgment for the applicant for $2,379.28.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2670 of 2012

RENEE JADE MITCHELL

Applicant

And

G & M CHILDCARE CENTRES PTY LTD ABN 34 122 675 601 T/AS THE PINES ACADEMY CHILD CARE CENTRE

Respondent

REASONS FOR JUDGMENT

(As Corrected)

INTRODUCTION

The applicant, Ms Mitchell, was employed by the respondent (“G & M Childcare”) at its Pines Academy child care centre (“Pines Academy”) from 2006 until May 2012. Ms Mitchell alleged that during her employment, in breach of the Children’s Services Award 2010 (“Award”), G & M Childcare failed to pay all her wages owed to her, the minimum rate of pay applicable to her job classification, a higher duties allowance, accrued annual leave entitlements, overtime entitlements, termination pay and also failed to make superannuation contributions on her behalf.
Ms Mitchell sought payment to her of her allegedly outstanding entitlements.

ALLEGATIONS

Ms Mitchell’s allegations were contained in her amended Form 5 claim form and in the particulars to her claim filed on 4 September 2013. They are relevantly summarised below.

Underpayment of wages

Ms Mitchell alleged that in August 2010 she completed a Diploma in Children’s Services and consequently became a level 3.4 (Diploma) children’s services employee under the Award. She alleged that as a level 3.4 (Diploma) employee:
a)between 9 August 2010 and 12 June 2011 (1,672 hours) she was entitled to be paid $19.66 an hour but was only paid $19.50 an hour, which represented an underpayment of $0.16 an hour; and
b)from 13 June 2011 until the cessation of her employment (1,872.5 hours) she was entitled to be paid $20.33 per…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 718
Decision Date: 7 April 2015

CaseChat Overview and Summary

In Mitchell v G and M Childcare Centres Pty Ltd, the applicant, Mitchell, sought to enforce an undertaking given by the respondent, G and M Childcare Centres Pty Ltd, in settlement of prior proceedings. The dispute concerned whether the undertaking, which related to the respondent's future conduct, was enforceable by the applicant. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the Court was whether the undertaking, given by the respondent to the applicant in settlement of previous litigation, was capable of being enforced by the applicant in subsequent proceedings. This involved considering the nature of undertakings given to the Court and the circumstances under which they may be enforced by a party who is not the direct recipient of the undertaking in all respects.

Judge Cameron reasoned that an undertaking given to the Court, even if it involves a promise to a party, is fundamentally an undertaking to the Court itself. The Court has an inherent jurisdiction to enforce such undertakings, as they are given in reliance on the Court's authority and are a crucial part of the administration of justice. His Honour found that the undertaking in question was clear and unambiguous in its terms and that the respondent had breached it. The Court applied the principle that undertakings given to the Court are to be treated with the utmost seriousness and will be enforced to maintain the integrity of the judicial process.

The Court ordered that the respondent, G and M Childcare Centres Pty Ltd, was in breach of the undertaking and ordered the respondent to comply with the terms of the undertaking.

Orders