Schreiber v The University of Queensland
[2021] FCCA 48
•19 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Schreiber v The University of Queensland [2021] FCCA 48
File number(s): BRG 629 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 19 January 2021 Catchwords: PRACTICE AND PROCEDURE – amendment of pleadings – adding a new cause of action after the limitation period has expired.
HIGH COURT AND FEDERAL COURT – Federal Circuit Court – procedure – ending proceedings early – summary disposal or stay.
INDUSTRIAL LAW – Commonwealth – terms and conditions of employment – leave – parental leave – whether s.84 of the Fair Work Act 2009 (Cth) imposes an obligation upon an employer.
Legislation: Fair Work Act 2009 (Cth), ss 44, 50, 82A(1)(c), 83, 84, 539(1), 544, 545, 546, 570
Federal Circuit Court Act 1999 (Cth) ss 17A(2), (3) and (4), 82(2)
Federal Circuit Court Rules 2001 (Cth) rr 1.05(2), 7.01, 7.03(4), 13.10(a),
Federal Court Rules 2011 (Cth) r 16.21
Cases cited: Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732
Brickfield Properties Ltd v Newton [1971] 1 WLR 862
CFMEU v Mammoet Australia Pty Ltd (2013) 248 CLR 619
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479
New South Wales v Radford (2010) 79 NSWLR 327
Open Eye Pty Ltd v Audio-Visual Copyright Society (t/as Screenrights) [2020] FCCA 7
Ritter & Ritter & Anor [2019] FCCA 782
Rogers v Commissioner of Taxation (1998) 88 FCR 61
Spencer v Commonwealth (2010) 241 CLR 118
Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771
X7 v Australian Crime Commission (2013) 248 CLR 92
Number of paragraphs: 41 Date of last submission/s: 22 June 2020 Date of hearing: 22 June 2020 Place: Brisbane Solicitor for the Applicant: Milner Lawyers Solicitor for the Respondent: MinterEllison ORDERS
BRG 629 of 2019 BETWEEN: VERONIKA SCHREIBER
Applicant
AND: THE UNIVERSITY OF QUEENSLAND
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
19 JANUARY 2021
THE COURT ORDERS THAT:
1.Pursuant to rule 7.03(4) of the Federal Circuit Court Rules 2001 the applicant have leave to amend the application filed in this matter in accordance with annexure A to her application in a case filed on 29 May, 2020 provided that such amendment is made no later than 4.00pm on 2 February, 2021.
2.Pursuant to rule 7.03(4) of the Federal Circuit Court Rules 2001 the applicant have leave to amend the statement of claim filed in this matter in accordance with annexure A to her application in a case filed on 29 May, 2020 provided that such amendment is made no later than 4.00pm on 2 February, 2021.
3.The Respondent have leave to file an amended defence and amended response no later than 23 February, 2021.
4.Otherwise the application in a case filed on 5 June, 2020 by the respondent is dismissed.
5.The application is adjourned to 19 March, 2021 at 9:30am for directions.
REASONS FOR JUDGMENT
JUDGE JARRETT:
In her principal proceeding the applicant seeks remedies with respect to the failure by the respondent to permit her to return to her pre-parental leave position following a period of parental leave. The applicant currently relies upon s.44 of the Fair Work Act 2009 (Cth) and alleges that the conduct about which she complains constituted a breach of the National Employment Standards provided for in the Act.
These reasons deal with competing interlocutory applications. The first in time was filed by the applicant. In that application she seeks leave to amend her application and statement of claim to add a claim that the conduct of the respondent also constituted a breach of an applicable enterprise agreement and so constituted a contravention of s.50 of the Act.
The second application was filed by the respondent. In that application the respondent seeks an order that:
(a)the applicant’s principal proceeding be dismissed pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) on the ground that she has no reasonable prospect of successfully prosecuting this proceeding; or alternatively
(b)that her statement of claim filed 12 July, 2019 be struck out on the ground that it fails to disclose a reasonable cause of action, pursuant to FCCR 1.05(2) and rule 16.21 of the Federal Court Rules 2011 (Cth).
In the event that the applicant’s claim is not dismissed or struck out, the respondent seeks leave to amend its defence.
THE APPLICATION, STATEMENT OF CLAIM AND DEFENCE
In her initiating application, the applicant seeks a declaration that the respondent has contravened s.44 of the Act by failing to comply with its obligations contained in Division 5 of Part 2–2 of Chapter 2 of the Act arising from the applicant’s scheduled return from parental leave. She seeks orders imposing penalties upon the respondent and an order for the payment of the penalties to her. She seeks compensation.
Having regard to the allegations in her statement of claim and the respondent’s defence, it appears that the following relevant matters are uncontroversial:
(a)the applicant commenced employment with the respondent, initially as a research assistant, pursuant to a written contract of employment on 1 August, 2008;
(b)she was employed on a series of full-time fixed term contracts of employment, the last of which expired on 31 December, 2013;
(c)in mid-2012 she was promoted to the position of laboratory manager/senior research assistant with effect from January, 2012;
(d)on 24 July, 2012 the applicant gave notice of her intention to take parental leave to commence from 15 October, 2012;
(e)the applicant commenced parental leave on 15 October, 2012 and her parental leave was covered by Division 5, Part 2–2 of the Act as it applied from time to time; and
(f)the applicant attempted to return to work on 15 July, 2013 but the respondent did not agree to the applicant’s return to a role with the respondent from that date.
The following relevant issues of fact appear from the parties’ pleadings:
(a)whether the applicant applied for and was granted 12 months of paid and unpaid parental leave commencing on 15 October, 2012 and ending on 11 October, 2013 (the period from 15 October, 2012 – 15 July, 2013 being paid parental leave paid at 75% of her normal salary and the period from 16 July, 2013 to 11 October, 2013 being unpaid parental leave) or whether the applicant was to resume work on 15 July, 2013; and
(b)whether the respondent was obliged to permit the applicant to return to work on 15 July, 2013 in her former role or to an available position for which the applicant was qualified and suited nearest in status and pay to her pre-parental leave position.
It is apparent from the respondents pleading that there is a dispute between the parties as to the period of time for which the applicant applied for and was granted parental leave. Whilst there is no dispute that she attempted to return to work on 15 July, 2013 it is the respondent’s case that the respondent had engaged a replacement staff member to cover the applicant’s absence between 15 October, 2012 and 11 October, 2013 and the respondent did not agree to reduce the period of unpaid parental leave so as to permit the applicant to return to work on 15 July, 2013. The respondent pleads that it offered to the applicant for her to immediately return to her pre-parental leave position or an alternative position at some point prior to 16 September, 2013 but the applicant refused to accept either.
The applicant pleads that the respondent’s offending conduct contravened s.84 of the Act which in turn was a breach of a civil remedy provision of the Act, namely s.44.
The respondent argues that this claim is bound to fail because s.84 of the Act does not impose an obligation on the respondent. No claim is made alleging a breach of any other civil remedy provision.
SUMMARY DISMISSAL
The Court’s power to summarily dismiss proceedings is supplied by ss.17A(2), (3) and (4) of the Federal Circuit Court Act 1999 (Cth) and FCCR 13.10. Here, the respondent bears the onus of persuading the Court that the application has no reasonable prospects of success. The summary dismissal power available under the Act and Rules needs to be exercised with caution and only in cases where it is clear there is no real question to be tried. The exercise of the power requires a practical judgment by the Court as to whether the applicant has more than a “fanciful” prospect of success. The inquiry required is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail. For recent judicial expressions of the test see Ritter & Ritter & Anor [2019] FCCA 782 at [10] and Open Eye Pty Ltd v Audio-Visual Copyright Society (t/as Screenrights) [2020] FCCA 7 at [12]-[13].
In determining whether a proceeding has ‘no reasonable prospect’, full weight must be given to that expression as a whole and no paraphrase of the expression can be adopted as a sufficient explanation of its operation. For a proceeding to have no reasonable prospect of success, it need not be hopeless or bound to fail: Spencer v Commonwealth (2010) 241 CLR 118 at [17]-[27], [49]-[60].
Here the respondent argues that the applicant’s case is bound to fail because she seeks to rely upon a cause of action which does not exist. Even if the facts alleged by the applicant are established, there was no relevant obligation imposed on the respondent by s.84 of the Act and therefore there is no breach of s.44 of the Act. Thus, the applicant will not be entitled to any remedy. Accordingly, it is argued, the Court can be satisfied to a higher standard than that necessary under s.17A of the Act that the applicant’s claim has no reasonable prospect of success.
The applicant’s cause of action
It is clear from her initiating application and statement of claim that the applicant alleges that by reason of contraventions of s.84 of the Act, the respondent has contravened s. 44 of the Act entitling her to relief.
Section 44 of the Act provides that an employer must not contravene a provision of the National Employment Standards. Section 44 is a civil remedy provision of the Fair Work Act: s.539(1) of the Act.
The National Employment Standards are contained within Part 2–2 of Chapter 2 of the Act. Section 84, which lies within Part 2–2 of Chapter 2 of the Act, provides:
84 Return to work guarantee
On ending a period of unpaid parental leave, an employee is entitled to return to:
(a)the employee’s pre‑parental leave position; or
(b)if that position no longer exists—an available position for which the employee is qualified and suited nearest in status and pay to the pre‑parental leave position.
The respondent argues that an employer cannot contravene a provision of the National Employment Standards unless it creates an obligation which is capable of being contravened. It argues that s.84 imposes no obligation upon an employer that is capable of being contravened by the employer. The respondent submits that not all of the provisions of the NES create obligations on employers and indeed, many create obligations on employees: e.g., s.82A(1)(c) in the context of parental leave. So much may be taken as true. But the question here is whether s.84 of the Act creates an obligation on the part of the respondent.
The respondent argues that s.84 creates an entitlement but no obligation on either the employee or the employer. The employee may choose not to exercise the entitlement and, if he or she chooses not to exercise the entitlement, the employer would plainly not have breached any obligation. Alternatively, it is argued:
(c)an employee may seek to exercise the right but be correctly assessed by the employer to be medically unfit to return to the role at that time; or
(d)the original role may no longer exist and there may be no alternative ‘available’ role.
The respondent further submits that although an employee may have avenues for enforcing the entitlement under s.84 of the Act and there might be consequences under other provisions if an employer interfered with the right without proper cause, s.84 creates no obligation on an employer to do anything and consequently, a contravention of s.84 is unable to found a breach of s.44 of the Act.
However, these submissions are unattractive. The necessary corollary of an employee having an entitlement to return to the position occupied by them prior to the taking of parental leave assumes, in my view, an obligation on the part of the employer to deliver that entitlement to the employee. That there might be other reasons why an employee cannot or should not take up the position does not impinge upon the proposition that an employer is obliged to deliver to the employee the employee’s entitlement should the employee seek it. An entitlement without a coincident obligation to deliver that entitlement is no entitlement at all. Nothing in CFMEU v Mammoet Australia Pty Ltd (2013) 248 CLR 619, X7 v Australian Crime Commission (2013) 248 CLR 92 or Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 (authorities to which I was taken in the course of argument by the respondent) detracts from those conclusions.
I am fortified in my view by two authorities to which the respondent drew my attention. The first is Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771, where Judge Manousaridis observed (footnotes omitted):
56. In my opinion s.84 imposes an obligation on the employer to inform the employee of the existence, if there is one, of an “available position for which the employee is qualified and suited nearest in status and pay to the pre-parental position”, and to offer that position to the employee. To so interpret s.84 promotes the evident purpose of the provision. An entitlement has value only if, and to the extent that, the beneficiary of the entitlement is aware of it. And, particularly in the case of large and complex businesses such as that of Symantec, whether or not there is an “available position” is something that would be peculiarly within the knowledge of the employer, not the employee.
Notwithstanding that it may appear that the Court did not have the benefit of submissions as to whether s.84 of the Act imposes an obligation on the employer more generally, it seems to me, with respect, that his Honour’s opinion is entirely correct. I reject the respondent’s submission that “[i]t seems likely the Court was in fact averting to the obligation in s.83 to provide information to the employee if there has been a change which affects the employee’s pre-parental leave position – which is a provision which does create an obligation on the employer”. I reject that submission because in the passage referred to in Turnbull his Honour, in terms, refers to s.84 and the words that appear in s.84(b) of the Act. Section 83 of the Act does not contain the words quoted by his Honour in the above passage.
To paraphrase the words of Judge Manousaridis in Turnbull, to interpret s.84 in a way which imposes upon an employer an obligation to provide the entitlement provided for by that section promotes the evident purpose of the provision. An entitlement has value only if, and to the extent that, the beneficiary of the entitlement is able to have that entitlement delivered to them.
The second authority is Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479. In that case, the Federal Court accepted that a contravention of s.84 can constitute a contravention for the purposes of s.44 of the Act leading to the imposition of civil penalties. However, as the respondent correctly points out, that finding was based upon an agreed statement of agreed facts and an admission by the second respondent. However, whilst it might be the case that the Court there did not consider in any detail the issue of whether s.84 imposed an obligation upon an employer, at [16] the Court certainly identified that the respondent there had contravened s.84 by reason of the failure to return the relevant employee to her pre-parental leave position.
Summary dismissal – conclusion
The application for summary dismissal must, itself, be dismissed. The basis upon which the respondent advances the case for summary dismissal is not made out. In my view, s. 84 of the Act clearly imposes an obligation on an employer to deliver to an employee the entitlement set out in that section. In those circumstances, I am not satisfied that the applicant has no reasonable prospect of successfully prosecuting her application.
In the alternative to the summary dismissal of the applicant’s application, the respondent seeks an order that the applicant’s statement of claim be dismissed on the basis that it discloses no reasonable cause of action. But that claim is advanced on the same basis as the case for summary dismissal. That application must fail because, for the reasons already expressed, the statement of claim pleads a cause of action.
The respondent seeks an order that it be at liberty to amend its defence. The amendment that is foreshadowed is to add a plea that s.84 of the Act creates no obligation on the part of the respondent that might be the subject of a contravention proceeding pursuant to s.44 of the Act. Although I have considerable misgivings about the efficacy of such an amendment given what I have set out above, it will nonetheless be appropriate to grant the respondent leave to file an amended defence given that I propose to grant the applicant leave to file an amended statement of claim. The grant of leave to the respondent to file an amended defence will be at large and so the respondent may amend its defence in the way foreshadowed on this application.
AMENDMENT TO THE STATEMENT OF CLAIM
The applicant wishes to amend her statement of claim to include an additional cause of action, namely a claim for remedies under s.545 of the Act and for the imposition of penalties under s.546 of the Act arising from a contravention of s.50 of the Act. By the application to amend, the applicant seeks to allege that the conduct of the respondent in preventing the applicant from returning from parental leave as planned and authorised, also constituted a breach of s.50 of the Act.
Section 50 of the Act provides that a person must not contravene a provision of an enterprise agreement. By her amendment, the applicant will allege that The University of Queensland Enterprise Agreement 2010 – 2013 applied to her employment with the respondent and that it gave rise to an entitlement to take parental leave should she desire to do so. The purpose of the proposed amendment is to allege that the conduct of the respondent in preventing the applicant from returning from parental leave on or about 15 July, 2013 also contravened the relevant provision of the enterprise agreement. As the applicant points out, the amendment does not alter the remedies which are sought by the applicant but does add an additional basis for seeking those remedies by relying upon s.50 in addition to s.44 of the Act. By adding that additional claim, the applicant accepts that she is seeking to add a new cause of action to the proceeding.
I accept that the amendment sought by the applicant requires the applicant to obtain leave to make the amendments: FCCR 7.01. The offending conduct here is alleged to have occurred more than six years ago. That is relevant because s.544 of the Act provides that an application with respect to a contravention of a civil remedy provision must be made within 6 years after the day on which the contravention occurred. Rule 7.03(4) FCCR is therefore engaged. That rule, which applies where a party seeks to make an amendment after the expiry of a relevant limitation period, provides that the Court may give leave to make an amendment even if the effect is to include a new cause of action. To satisfy that rule and enliven the discretion to permit amendment, the Court must consider it appropriate to grant leave to amend and the new cause of action must arise out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceeding by the party seeking leave to amend.
The respondent opposes the grant of leave on the basis that s.544 of the Act imposes a strict time limit, in respect of which, no provision is made for extension. However, the combined effect of s.82(2) of the Federal Circuit Court Act and FCCR 7.03(4) is that the Court may nonetheless grant leave to amend even if it is to add a cause of action which might otherwise fall foul of a limitation period. So much was decided by the Federal Court of Australia in respect of cognate provisions of the Federal Court of Australia Act and the Federal Court Rules in Rogers v Commissioner of Taxation (1998) 88 FCR 61.
I am satisfied here that even though the applicant seeks to include a new cause of action in her proceedings, it is appropriate to give her leave to amend. I am also satisfied that the cause of action that she wishes to add to her proceedings arises out of substantially the same facts as the cause of action that is presently pleaded. The new cause of action need not arise out of exactly the same facts as the existing cause of action. All that is necessary is that it arise out of substantially the same facts (as to this issue see Rogers v Commissioner of Taxation (above) at 68 – 69). As the respondent submits, the question is whether the “overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action”: New South Wales v Radford (2010) 79 NSWLR 327 at [69], citing Brickfield Properties Ltd v Newton [1971] 1 WLR 862 at 880.
None of the authorities to which the respondent directs my attention suggest that the facts of each cause of action must be “precisely or nearly precisely” the same as those currently pleaded. All that is necessary is that they be substantially the same. None of the authorities preclude the proposition that the applicant must be limited to those facts pleaded in his or her original pleading. The authorities permit of the proposition that further facts may need to be pleaded in respect of the new cause of action. The respondent submits that it will be necessary here for the applicant to plead further facts to establish a new cause of action and in particular, there will need to be pleading about the enterprise agreement and its meaning. I accept those things to be so. However, that does not carry with it the proposition, in my view, that the facts of the new cause of action are not substantially the same as the cause of action presently pleaded.
The respondent points out that there may need to be further factual enquiry is as a result of the proposed amendments. I accept that might be so also. But that does not detract from the proposition that the new cause of action arises out of substantially the same facts as the present cause of action. Whilst the source of the obligation to provide her with her pre-parental leave position upon return to work is different (the current cause of action relies upon the National Employment Standards whereas the new cause of action relies upon an enterprise agreement) the alleged offending conduct, namely the alleged refusal to allow her to return to work in her pre-parental leave position is the gravamen of her case and is constituted by the one set of facts.
The respondent’s submissions suggest that there may be the prospect that the facts relied upon by the applicant to make good her new cause of action all took place more than six years prior to the commencement of the present principal proceedings. In those circumstances, it is submitted that leave to amend or to be refused because the “relation back” principle which lies at the heart of the operation of FCCR 7.03(4) would not save the claim. However, whether the applicant’s case can be characterised in that way remains to be seen. If her amended case, properly particularised, leads to the conclusion that the cause of action was complete before the date which was six years prior to the commencement of her principal proceedings, the respondent will nonetheless be able to plead a limitation defence. It will not be prejudiced in that sense.
As a matter of discretion, I think the applicant should have leave to amend. I am satisfied that little by way of prejudice will flow to the parties via the amendment. Nor will there be any consequential delay in the proceedings. The parties have filed their evidence, although I accept that there may be a need for further evidence about the enterprise agreement and its effect if that cannot be the subject of a statement of agreed facts between the parties. The proceedings are not yet set down for trial although they are relatively advanced in that a mediation has been completed.
I accept that the amendment has some significance for the applicant’s case because if, for some reason, the applicant was not able to avail herself of the entitlement in s.84 of the Act, the new cause of action may provide her with an alternative source of relief.
I am not satisfied that there is there is any relevant delay in seeking to make the amendment having regard to when these proceedings were commenced. The amendment arises as a consequence of the respondent’s assertion that the applicant, as a matter of law, is not protected by the entitlement set out in s.84 of the Act, something which has not been clearly pleaded by the respondent at any point. The desire of the respondent to amend its defence to specifically raise that issue demonstrates that the issue may not be one which was apparent or foreshadowed to the applicant before the recent mediation process on 27 April, 2020. I accept that the proposed amendment is unlikely to have any significant impact on the costs of the proceeding.
I am satisfied in all the circumstances that is appropriate to grant the applicant leave to amend as she seeks.
CONCLUSION
For the reasons above:
(a)the applicant has leave, within 14 days of the date of these orders, to amend the Application and Statement of Claim in accordance with the drafts proposed by her;
(b)the respondent’s application for the claim to be summarily dismissed, or alternatively struck out is dismissed; and
(c)the respondent has leave, within 21 days of the date of these order, to amend its response and defence as it sees fit.
Given the outcome of the applications before the Court, and having regard to the provisions of s.570 of the Act, in my view, no order as to costs is appropriate.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 19 January, 2021. Associate:
Dated: 19 January, 2021
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