Stanton-Long v Federation Training - [2018] FCCA 2125

FEDERAL CIRCUIT COURT OF AUSTRALIA

STANTON-LONG v FEDERATION TRAINING

[2018] FCCA 2125

Catchwords:
INDUSTRIAL LAW – Claims of multiple infractions of industrial instruments and related contraventions of the Fair Work Act – claim that applicant the subject of adverse action in contravention of a protection provision – claims involving detailed consideration of award provisions that are difficult to construe – adverse action claims made out only in part – other contraventions largely made out – parties to be further heard as to form of orders to be made.

Legislation:

Fair Work Act 2009, ss.50, 119, 341(1)(c)

Fair Work Regulations 2009, reg.3.31, 3.32, 3.33, 3.42, 3.42(4), 361

Cases cited:

Andersen v Umbakumba Community Council (1994) 126 ALR 121

Applicant:

ROBYN STANTON-LONG

Respondent:

FEDERATION TRAINING

File Number:

MLG 1118 of 2017

Judgment of:

Judge Burchardt

Hearing date:

4, 5 & 6 June 2018

Date of Last Submission:

13 June 2018

Delivered at:

Melbourne

Delivered on:

16 August 2018

REPRESENTATION

Counsel for the Applicant:

Ms Knowles

Solicitors for the Applicant:

Australian Education Union – Victorian Branch

Counsel for the Respondent:

Mr Donaghey

Solicitors for the Respondent:

PCC Employment Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1118 of 2017

ROBYN STANTON-LONG

Applicant

And

FEDERATION TRAINING

Respondent

REASONS FOR JUDGMENT

Introductory

By her amended Statement of Claim filed 23 October 2017, the applicant seeks remedies, including the imposition of pecuniary penalties, in respect of some 14 alleged contraventions by the respondent of various industrial obligations. Some are, it should be noted, in the alternative. Because of the widely varying nature of the alleged contraventions, it is not possible to make any meaningful brief introductory remarks. Rather, once the facts are set out, it will be necessary to examine each claim seriatim. For the reasons that follow, however, it will be seen that the applicant is in the main part successful.

Agreed or Uncontroversial Facts

It should be noted that Ms Stanton‑Long, who was born on 16 June 1962 (CB2), has a number of qualifications, set out at paragraph 3 of her affidavit filed 12 December 2017 (CB101). I note that she deposed in that affidavit at paragraph 4, not the subject of cross‑examination:
“Before I started my career in vocational education and training, I worked in fashion retailling for about 25 years, this included owning and operating a fashion business….” [sic]
She is obviously a person with lengthy experience in retail.
In March 2009, Ms Stanton‑Long took up employment with the Board of Central Gippsland Institute of TAFE working as a casual fashion teacher. Her employment contract is at CB118-121. Relevantly, it provided that the position was casual, commencing 2 March 2009. There is reference within the contract to an attached Duty Statement which is not attached, although I note that Ms Stanton‑Long was to be supervised by James Farmer, Team Leader Delivery Fashion/Business/Horticulture (CB118).
On or about 5 April 2010, Ms Stanton‑Long was employed as a casual again. Her position was Casual Skills For Growth Specialist. She was to be…

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: [2018] FCCA 2125
Decision Date: 16 August 2018

CaseChat Overview and Summary

Stanton-Long (the applicant) brought proceedings against Federation Training (the respondent) in the Supreme Court of Victoria. The dispute concerned the respondent's alleged breach of contract and misleading or deceptive conduct in relation to the applicant's enrolment in a Diploma of Early Childhood Education and Care. The applicant claimed that the respondent had misrepresented the course structure and the availability of employment opportunities upon completion.

The central legal issues before the Court were whether the respondent had breached its contractual obligations to the applicant by failing to provide the course as represented, and whether the respondent's conduct in marketing and delivering the course constituted misleading or deceptive conduct in contravention of the Australian Consumer Law. The Court was required to assess the terms of the enrolment agreement and the representations made by the respondent to determine if these had been breached or were misleading.

Burchardt J found that the respondent had indeed engaged in misleading or deceptive conduct. The Court reasoned that the representations made by the respondent regarding the course structure and the likelihood of employment were not supported by the evidence of how the course was actually delivered and the limited employment outcomes for graduates. The Court applied the principles of contract law and consumer protection legislation, focusing on the objective meaning of the representations made and their likely effect on a reasonable consumer. The Court concluded that the applicant had been induced to enrol in the course based on these misleading representations.

The Court ordered that the respondent pay damages to the applicant, reflecting the losses incurred as a result of the misleading conduct and breach of contract.

Orders