O'Loughlin v Queen Victoria Market Pty Ltd
[2024] FedCFamC2G 971
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
O’Loughlin v Queen Victoria Market Pty Ltd [2024] FedCFamC2G 971
File number: ADG 282 of 2023 Judgment of: JUDGE BROWN Date of judgment: 4 October 2024 Catchwords: INDUSTRIAL LAW – SMALL CLAIMS – Application for interest up to the payment of accident make-up pay – Application filed out of time – Consideration of limitation periods – Application dismissed Legislation: Fair Work Act 2009 (Cth) ss 50, 323, 536, 539, 544, 545, 547, 548, Div 2, Pt 4-1, Ch 4
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 131
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 30.10
Fair Work Regulations 2009 (Cth) regs 3.45, 3.46
Accident Compensation Act 1985 (Vic)
Cases cited: Armstrong v Stevic [2020] FCCA 1025
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Choppair Helicopters Pty Ltd v Bobridge (No 2) [2018] FCA 700
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of last submissions: 11 July 2024 Date of hearing: Determined on the papers Place: Adelaide Counsel for the Applicant: Self-represented litigant Counsel for the Respondent: Ms Kotsiki appeared on behalf of the Respondent ORDERS
ADG 282 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANTHONY JOHN O'LOUGHLIN
Applicant
AND: QUEEN VICTORIA MARKET PTY LTD
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application filed by the Applicant on 11 September 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These proceedings relate to what can be categorised as an underpayment claim brought pursuant to the small claims provisions provided by section 548 of the Fair Work Act 2009 (Cth).[1]
[1] Hereinafter referred to as “the Act”.
In general terms a person can apply to the court, under the section, in simplified fashion, for monies alleged to be due pursuant to any applicable enterprise agreement. The amount of compensation able to be paid is capped at $20,000.00.[2]
[2] See Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 30.10.
Section 548 falls within Chapter 4 of the FWA, which is headed Compliance and Enforcement. It authorises the court to deal with the imposition of civil penalties and to award compensation [pursuant to section 545 of the FWA] in the event that it is found that there has been a breach of what is characterised as a civil remedy provision.
Section 539(2) provides a list of matters which fall within this definition, one of which references section 50 which renders it a civil remedy provision for an employer to contravene the terms of an enterprise agreement.
The applicant in these proceedings is Anthony John O’Loughlin. He was employed by the respondent the Queen Victoria Market Pty Ltd,[3] as a systems accountant between 12 November 2007 and 21 March 2016.
[3] Hereinafter referred to as “QVM”.
The terms of his employment were covered by the provisions of the Queen Victoria Market Enterprise Agreement 2013 to 2016.[4] It is common ground between the parties that Mr O’Loughlin was made redundant by QVM on 21 March 2016. On this date, he received a letter under the hand of Victor Ailakis, whom at the time was the Acting CEO of QVM, which read as follows:
[O]ver the past 3 months we have been conducting a review of our business and organisation structure in the context of a very challenging budget environment in the upcoming financial year as well as emerging plans with the City of Melbourne regarding the QVM Renewal Project structure.
I am writing to confirm that, as a result of the review the role of Systems Accountant is no longer required and therefore it has been made redundant. This decision is based on the needs of the business is not a reflection of your performance.
In the circumstances, I have no other option but to give you notice that your employment has been terminated due to redundancy.
In the circumstances I have decided to make a payment to you in lieu of providing notice and, accordingly your employment will terminate affective immediately.
In addition to this payment, you are also entitled to a redundancy payment and any accrued but untaken annual leave in accordance with the Fair Work Act 2009, together with any outstanding wages and superannuation. A copy of a draft payout is attached for your review.[5]
[4] Hereinafter referred to as “the Enterprise Agreement” or “the Award”.
[5] See letter attached to application filed on 11 September 2023.
I have not been provided with a copy of this draft payout. What is significant is that after the redundancy, Mr O’Loughlin submitted a claim for worker’s compensation to QVM, pursuant to the provisions of the Accident Compensation Act 1985 (Vic)[6] on the basis that he had suffered a psychological injury during his employment as a result of having been bullied in the workplace because he had revealed systemic corruption at QVM.
[6] Hereinafter referred to as the MC Act.
It is the position of QVM that this claim was partially accepted, and the applicant was assessed as eligible to receive statutory weekly worker’s compensation payments from the date of his termination (22 March 2016) until 6 October 2016. Thereafter, a further incapacity claim was accepted for a fixed period which ended on 5 January 2017.
It is Mr O’Loughlin’s position that this situation is covered by clause 18 of the Enterprise Agreement which is headed Accident Make Up-Pay and reads as follows:
18.1QVM shall pay an Employee accident make-up pay if the Employee receives Workers Compensation.
18.2Accident make-up pay means a weekly payment of an amount being the difference between the weekly amount of compensation paid to the Employee pursuant to the AC Act and the Employee's appropriate weekly ordinary time rate of pay.
18.3QVM shall pay, or cause to be paid, accident make-up pay during the incapacity of the Employee within the meaning of the AC Act until:
18.3.1 the incapacity ceases;
18.3.2the expiration of a continuous period of 39 weeks from the date of the injury;
18.3.3an aggregate period of 39 weeks for any one injury or illness occurs; whichever shall first occur.
18.4The liability of QVM to pay accident make-up pay in accordance with this clause 18 shall arise as at the date of the injury or illness in respect of which compensation is payable under the AC Act.
18.5Subject to the provisions of the AC Act, QVM may terminate the employment of the Employee whilst he/she is in receipt of Workers Compensation. The termination of the Employee's employment during the period of any incapacity shall not affect the liability of QVM to pay- accident make-up pay as provided in this clause, save that if the termination is on account of serious and wilful misconduct of the Employee, payment shall not continue beyond date of termination.
18.6 All rights to accident make-up pay shall cease on the death of an Employee.
The parties disagree about the application of this clause to Mr O’Loughlin’s situation. In general terms, QVM asserts that it has no application because when the payments of workers compensation were made to Mr O’Loughlin, he was not its employee. The relationship of employer and employee having ended with his redundancy.
Accordingly, there was no gap between his ordinary wages and his compensation payments to justify make-up pay. Therefore, there has been no breach of the provisions of the applicable Enterprise Agreement and the court’s jurisdiction is not invoked.
On the other hand, it is Mr O’Loughlin’s contention that the relevant Enterprise Agreement provided make-up pay for injured workers on Work Cover for the first 39 weeks to bring total pay up to 100% of pre-injury pay.
Essentially, he asserts that the ordinary meaning of the words employer and employee apply and notwithstanding his termination, he is to be regarded as QVM’s employee for the purposes of the clause.
However, although this controversy provides the context of the dispute between the parties, it is not ostensibly the reason Mr O’Loughlin has commenced these proceedings. It is agreed between the parties that on around 23 February 2022, QVM paid Mr O’Loughlin the sum of $11,293.49.
On the payslip provided to him this sum was described as accident make-up pay. It was subject to tax of $4,182.00 and included a superannuation guarantee payment of $1,129.35. It was referrable to a pay period between 7 February and 20 February 2022. Clearly this is erroneous as Mr O’Loughlin had ceased employment with QVM a little under six years earlier.
It is in this context that the present application arises. Mr O’Loughlin seeks to be paid interest on what he characterises as the late payment of his wage entitlements The court’s authority to make an order for interest is contained in section 547 of the FWA, which reads as follows:
547 Interest up to judgment
(1)This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.
(2)In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(3)Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.
Mr O’Loughlin also submits that QVM have breached other civil remedy provisions of the FWA in that he was not provided with necessary payslips in accordance with section 536 of the FWA or paid on time.
Section 536(1) and (2) requires employers to provide their employees with pay slips, within one day of paying wages, which contains information prescribed by regulation.[7] This information must include the name of the employer and employee; the pay period; gross and net amounts of payment; and any amount referable to loading, allowance or other penalty.
[7] Fair Work Regulations 2009 (Cth) regs 3.45, 3.46.
In addition, given his contention that the sum paid to him should have been paid in conjunction with the payment of his worker’s compensation, Mr O’Loughlin submits that QVM has breached the provision of section 323 of the FWA, also a civil remedy provision, which requires that wages be paid, in full, on at least a monthly basis, when due.
Given the circumstances of the late payment, it is Mr O’Loughlin’s position that it is axiomatically the case that this provision has been breached because the payment was made nearly six years after he asserts that it was due.
It is the position of QVM that Mr O’Loughlin has misconceived the application of the FWA to these circumstances. As indicated above, it submits that the Enterprise Agreement does not apply to him as he was not employed by QVM when he was in receipt of worker’s compensation.
In addition, QVM asserts that the applicant is out of time to bring any application pursuant to the provisions of the FWA. In this context, it relies on the provision of section 544 of the Act, which also appears in Chapter 4 of the Act. It reads as follows:
Time limit on applications
A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:
(a) a civil remedy provision;
(b) a safety net contractual entitlement;
(c) an entitlement arising under subsection 542(1).
The court has a wide jurisdiction conferred by section 545 of the FWA to make any order which it considers appropriate if it is found a person has breached a civil remedy provision. In this context, section 545(5) may have application. It reads as follows:
Time limit for orders in relation to underpayments
(5)A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.
HISTORY OF THE PROCEEDINGS
Mr O’Loughlin commenced these proceedings on 11 September 2023 by way of application and form 5, as the proceedings were assigned to the court’s small claim list. The documents were served by registered post to the registered office of the respondent, they were delivered on 22 September 2023.
The respondent formally responded to the application on 12 October 2023, it seeks the dismissal of the application. The case first came before a registrar (Registrar Edwards) of the court on 13 October 2023. The registrar made the following orders and notations:
THE COURT ORDERS THAT:
1.The proceeding be referred to a Judge of the Court for hearing on a date to be fixed on an estimate of not more than 1 hour.
2. The parties have liberty to apply.
THE COURT NOTES THAT:
A. At the hearing it was not in dispute that:
(i)pursuant to clause 18 of the Queen Victoria Market Enterprise Agreement 2013-2016 the respondent paid the applicant accident make-up pay for the period 22 March 2016 to 20 December 2016 in the sum of $11,293.49; and
(ii) the respondent paid that amount on 23 February 2022.
B.At the hearing it became apparent that to engage the small claims procedure in s 548 of the Fair Work Act 2009 (Cth), the applicant:
(i)seeks a declaration that the respondent was required to pay Accident Make-up Pay pursuant to the terms of the Agreement;
(ii)upon the making of that declaration, seeks an order pursuant to s 547 of the Act for interest.
C.The respondent’s position is that the claim is out of time pursuant to s 544 of the Act.
D.In the event that an order for the payment of interest is made, the applicant did not dispute the calculation attached to the respondent’s Response.
E. Registrars of the Court do no[t] have the power to grant declaratory relief.
F. The parties declined to participate in a mediation.
For reasons that are not clear to me the matter came before me seven months later on 1 May 2024, on that date neither party appeared, and the matter was adjourned to 6 June 2024.
On 6 June 2024 both parties appeared on that occasion, and it was agreed that following the filing of submissions, the proceedings would be decided on the papers with the delivery of written reasons to follow. These are those reasons.
DISCUSSION
QVM accepts that the payment made by it to Mr O’Loughlin can be characterised as make-up pay which relates to the difference between his wage as a systems accountant and what he received for the first 39 weeks of his period of incapacity for work. Ostensibly this relates to clause 18 of the QVM Enterprise Agreement. This period commenced on 22 March 2016 – the date immediately following his redundancy – and concluded on 20 December 2016.
It is Mr O’Loughlin’s position that he only discovered this aspect of the Award in February 2022 and immediately raised the matter with QVM in correspondence with it. In his claim, he wrote as follows:
I was retrenched in March 2016. Workcover accepted that I was an injured worker and paid weekly pay from 22 March 2016 to 7 October 2017.
The Queen Victoria market P/L EBA provides make-up pay for injured workers on Workcover for the first 39 weeks.
I found out about this in Feb 2022. After many emails and calls and finally threatening legal action, I was paid my make-up pay over 5 years late.
My employer refuses to pay any interest.
I was suffering from severe impairment of my cognitive capacity and didn't realise there was underpayment until I recovered enough to do a reconciliation. This caused my application to be over time. Several psychological reports outline the mental condition I suffered before and after the termination of my employment.
I am claiming interest on this extreme case of failure to pay wages in timely fashion.[8]
[8] See Form 5 filed by the Applicant on 11 September 2023 at Part I.
It is unclear to me why QVM elected to pay the make-up pay. As indicated above, it is QVM’s current position that the relevant Enterprise Agreement had no specific application to Mr O’Loughlin’s situation, as he was not its employee when he began to receive worker’s compensation payments.
I do not consider that I am entitled to know what motivated QVM to make the payment in question and more particularly find that, in doing so, it can be taken to be an admission, by it, of acceptance of the application of the Enterprise Agreement to the circumstances of Mr O’Loughlin, which it has implicitly denied in its current submission to the court.
In my view, QVM was entitled to make the payment to avoid litigation or as a gesture of goodwill or for some other reason. It remains a matter of public policy that settlement negotiations between parties remain subject to privilege. However, it remains necessary for this court to interpret the provision of the relevant award as it pertains to make-up pay.
The purpose of make-up pay, in industrial awards, is to provide a top up of income between the date on which incapacity for work begins and the return of the employee concerned to work, so that there is no financial hardship arising in this period for the relevant worker. In most awards, this is capped at either 26 or 39 weeks. In Mr O’Loughlin’s case, QVM submit that given his redundancy, he had no such position to return to and therefore it had no obligation to provide make-up pay.
These were issues examined by the Federal Court in Choppair Helicopters Pty Ltd v Bobridge (No 2).[9] Ms Bobridge was a helicopter pilot, who also performed administrative tasks for her employer, in its office. She resigned from her permanent position but continued to fly for the firm on a casual ad hoc basis. As such, she did not have a readily ascertainable level of remuneration.
[9] Choppair Helicopters Pty Ltd v Bobridge (No 2) [2018] FCA 700.
About a week after her resignation, she was involved in a horrific helicopter accident, whilst flying for Choppair and was incapacitated thereafter. One of the issues at trial was whether she was entitled to make-up pay pursuant to the relevant award, which was in similar mandatory terms to the award in this case and also contained a clause [22.7] in similar term to clause 18.5 of the Award, namely the right to make-up pay would be unaffected by subsequent termination.
In the case, Bromberg J described the purpose of make-up pay arising from the applicable award as follows:
The general purpose of a provision for accident make-up pay is to compensate an employee for the difference between what the employee receives by way of workers’ compensation and the income that would have been received by the employee if the employee had not been injured and had attended work. That is the evident purpose of clause 22. Clause 22.1 requires that the pilot “will be paid make-up pay”. Make-up pay means the difference between the amount of the workers’ compensation payment to which the employee is entitled and the amount of salary plus allowances that the pilot would have received had the pilot been at work for the period in question (cl 22.2). Alternatively, where the income that the employee would have received is not readily ascertainable (presumably because the employee’s past salary was variable), cl 22.4 provides that make-up pay shall be based on an average of the employee’s past salary. Clause 22 envisages that the payment of make-up pay will be periodic. Clause 22.6 requires that make-up pay “be paid through normal payroll procedures” or by an agreed alternative arrangement.[10]
[10] Choppair Helicopters Pty Ltd v Bobridge (No 2) [2018] FCA 700 at [20].
As in the current matter, Ms Bobridge was entitled to receive compensation pursuant to the MC Act as a result of her incapacity to work following her accident. It was her case that her entitlement to make-up pay was in lockstep with her accrual of worker’s compensation. Justice Bromberg agreed. His Honour wrote as follows:
If the entitlement to accident make-up pay is intended by cl 22 to co-exist with the entitlement to workers’ compensation, as both the text and the ascertainable purpose of the clause suggest to be the case, then two things follow. First, the entitlement which cl 22 confers is not intended to be dependent on the continuation of the employment. Second, subject to the 52 week limitation expressly provided for by the clause, the obligation to make periodic payments is dependent upon the employee’s continued incapacity to work and not on the continuance of the employment.[11]
[11] Choppair Helicopters Pty Ltd v Bobridge (No 2) [2018] FCA 700 at [26].
Essentially Bromberg J found that the entitlement to make-up pay was correlative with the right to receive worker’s compensation accruing from a worker sustaining an injury in the course of employment. It was not dependent upon an on-going employment relationship.
The nicety of this case, when compared with that of Ms Bobridge, is that in the latter matter, the date of Ms Bobridge injury was axiomatic – when the helicopter she was piloting overturned. The specific date of Mr O’Loughlin’s injury is unclear. However, given its aetiology was asserted to be bullying in the workplace, it must be the case that it pre-dated his redundancy and thus, in my view, the reasoning applied in Choppair (No 2) must be applied.
In these circumstances, I do not accept QVM’s submission that it was under no legal obligation to pay make-up pay to Mr O’Loughlin because his position had been made redundant. I accept that his entitlement to such make-up pay arose because he was entitled to receive compensation under the MC Act, which was less than his rate of remuneration whilst employed by the respondent.
A more difficult issue arises in respect of the application of section 547 to this situation and whether, if the court makes the declaration envisaged in the orders of Registrar Edwards, notwithstanding the payment of the make-up pay due to Mr O’Loughlin, this is an order of a kind to which the section applies, notwithstanding the period of time which has elapsed since Mr O’Loughlin’s right to the payment accrued.
What is clear is that QVM was not ordered to pay the sum because of any application brought by Mr O’Loughlin personally pursuant to the provisions of the FWA. Specifically, Mr O’Loughlin had not brought an application founded on section 50 alleging that QVM had breached the terms of the relevant Enterprise Agreement.
Rather the sum was paid as a result of correspondence occurring between the parties and QVM volunteering to make the payment concerned. As previously indicated, what if any conditions attached to this payment are not known to me. It is common ground that this payment was made on 23 February 2022.
As indicated above, a breach of section 50 of the FWA is a civil remedy provision which can be penalised pursuant to application brought under Chapter 4 of the Act. However, any such application is subject to a time limit of six years after the day on which the contravention occurred.
In these circumstances, QVM submits that section 547(1) can have no application. Interest up to judgment can only be made in respect of a sum ordered to be paid to a person. In this case, there has been no such order and indeed no specific application for such an order.
Rather, Mr O’Loughlin commenced these proceedings, directed towards securing interest, on the make-up pay provided to him on 23 February 2022, on 11 September 2023. This was approximately 7½ years after his redundancy (21 March 2016) and approximately 6 ¾ years after the last pay period to which make-up pay could attach had elapsed (20 December 2016).
More specifically, Mr O’Loughlin has invoked the small claims procedure envisaged by section 548 which authorises the application of simplified court processes to enable the recovery of an amount an employer was required to pay to employee pursuant to a fair work instrument.
There is no controversy that the Award relevant to these proceeding is a fair work instrument. In addition, for the reasons provided above, I am satisfied that the make-up pay due to Mr O’Loughlin was an amount QVM was required to pay to him.
This provision replicates those contained in section 545(3) of the FWA. However, as indicated above, pursuant to the provisions of section 545(5) the court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced. In these circumstances, QVM, whilst rejecting the contention that it was obliged to pay make-up pay, submits as follows:
Should the Court determine that the Respondent has contravened section 50 of the Act by failing to pay accident make-up pay, then any such contravention or contraventions occurred in the various payroll dates between 22 March 2016 and 20 December 2016 when such payments were due to be made.[12]
Thus, it is submitted, the application is out of time.
[12] See Respondent’s Submissions filed 11 July 2024 at [33].
In this context, in my view, the wording of section 545(5) is relevant. It contains a mandatory prohibition on the court making any order relating to a period more than six years prior to the commencement of these proceedings. No provision has been made for such any extension of such a period. It is not explicitly subject to any discretion in its application.
When the preceding subsections of section 545 are read, it is clear that they are permissive in their application. In contrast subsection (5) is explicitly prohibitive. In my view, the court has not been conferred with the power to make an order relating to an underpayment of monies due under a fair work instrument if such underpayment occurred six years prior to the commencement of proceedings. This follows from the utilisation, in the subsection, of the phraseology must not.
The jurisdiction of this court is conferred by section 131 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). In broad terms, the court has jurisdiction to determine all aspects of civil disputes conferred upon it by statute. In my view, this includes the power to make a declaration of the kind sought by Mr O’Loughlin.
In general terms, a declaration in the context of litigation, is an order of a court which has the effect of making a formal determination of the rights and obligations of the parties to it which does not provide a mechanism for enforcement. It is a discretionary remedy. Given that the monies due to Mr O’Loughlin, by way of make-up pay, have been paid to him, in my view, in practical terms there is no point to a declaration of the kind envisaged by Registrar Edwards being made.
The question, which arises is whether the making of such a declaration could found the order for interest, which is Mr O’Loughlin’s primary purpose in bringing his current application. It is clear that he is aggrieved that QVM did not, of its own initiative, provide him with the make-up pay, to which he was entitled, concurrently with his worker’s compensation payment.
It seems to be more likely than not that given Mr O’Loughlin sought worker’s compensation after his redundancy, there was a lack of clarity about his situation. Certainly, it is apparent that Mr O’Loughlin himself did not agitate for make-up pay until many years later and when he did seek it, QVM paid the sum required without Mr O’Loughlin having to commence legal proceedings.
Section 547 applies if an order is made, under Division 2 of Part 4-1, in relation to an amount that a person was required to pay to a person under a fair work instrument. I acknowledge that the use of the past tense in the section is significant. Logically, the obligation to pay interest arises in conjunction with a past failure to pay the sum due under the applicable instrument and, as such, it is immaterial if the sum in question was subsequently paid.
In addition, it also significant that subsection (2) is directive in its application. However, the presumption arising is subject to rebuttal. An order for interest is not to made if a good cause for not doing so is established.
In Armstrong v Stevic[13] Judge Mercuri considered that the type of consideration which related to the establishment of a good cause for not making an interest payment included oversight in not making the payment required; the size of the business concerned; who was responsible for any delay; and how quickly the matter was rectified.
[13] Armstrong v Stevic [2020] FCCA 1025.
Clearly, above all, the most important factor is the fairness of the situation. This is axiomatically Mr O’Loughlin’s position, that he was entitled to be paid make-up pay. He should have been paid what he was due many years ago. He was not aware of the issue until many years later.
In conclusion, I do not consider that I have the power to make the order for interest sought by Mr O’Loughlin given that he commenced the proceedings more than six years after the sum was due to him. I do not consider that I have the authority to grant an extension of time. Even if I did, I am not persuaded that it would be in the interests of justice to grant such an extension.
Relevant High Court authority emphasises the importance of limitation periods. They represent the ‘legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period.’[14] As such, the court cannot ignore limitation periods created by the legislature, but at the same time it cannot ignore the interests of justice.
[14] See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553 (McHugh J).
I acknowledge that I have authority to make the declaration alluded to by Registrar Edwards, but I do not consider that I should exercise such a discretion in the idiosyncratic circumstances which arise in this case.
The most significant of which is the fact that the make-up pay has been paid and there have been no substantive proceedings required to be brought in respect of any civil remedy provisions, particularly those relating to section 50 of the Act and such proceedings, in any event, are also out of time. In all these circumstances, I am satisfied regardless of the strict application of the time limits applicable that there exists good cause not to make an order for the payment of interest.
Similar considerations relate to Mr O’Loughlin’s as yet imprecise assertions that QVM has breached the payslip provisions and regularity of payment provisions of the FWA. These civil remedy provisions are also out of time pursuant to the provision of section 544.
In any event, Mr O’Loughlin was provided with a payment summary in respect of the make-up pay when it was provided to him. I agree with the submission of QVM that the requirement to provide a payslip arises when the payment is made. The same consideration applies to the assertion that Mr O’Loughlin should have been paid the make-up pay on a monthly basis.
In all these circumstances, I do not propose to make any order in respect of the payment of interest to Mr O’Loughlin. Accordingly, his application must be dismissed. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 4 October 2024
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