Stanton-Long v Federation Training (No.3) - [2019] FCCA 337

FEDERAL CIRCUIT COURT OF AUSTRALIA

STANTON-LONG v FEDERATION TRAINING (No.3)

[2019] FCCA 337

Catchwords:
INDUSTRIAL LAW – Ruling on final outstanding matters in civil penalties case.

Legislation:

Fair Work Act 2009, s.50

Federal Circuit Court Rules 2001, r.16.05(1)

Cases cited:

Stanton-Long v Federation Training (No.2) [2018] FCCA 3575

Ashby v Slipper (No 2) [2014] FCAFC 67

Comcare v John Holland Pty Ltd [2016] FCA 501

Applicant:

ROBYN STANTON-LONG

Respondent:

FEDERATION TRAINING

File Number:

MLG 1118 of 2017

Judgment of:

Judge Burchardt

Hearing date:

19 December 2018

Date of Last Submission:

19 December 2018

Delivered at:

Melbourne

Delivered on:

26 February 2019

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:

FCC Employment Lawyers

ORDERS

Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $27,000 in respect of its contravention of section 50 of the FW Act as a result of contravening clause 1 of Schedule 1 of the MEA by not paying the Applicant wages she was entitled to receive by underpaying the Applicant an amount of $16,655.15.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $15,300 in respect of its contravention of section 50 of the FW Act as a result of contravening clauses;
(a)12.1(g) of the MBA by providing the Applicant on appointment with a letter of appointment on a causal basis which did not stipulate the estimated number of hours required in respect of the November 2013 Employment Contract.
(b)12.1(g) of the MBA by providing the Applicant on appointment with a letter of appointment on a casual basis which did not stipulate the estimated number of hours required in respect of the 2014 Employment Contract.
(c)12.1(g) of the MBA by providing the Applicant on appointment on a casual basis with a letter of appointment which did not stipulate the estimated number of hours required in respect of the 2015 Employment Contract.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $16,200 in respect of its contravention of section 50 of the FW Act as a result of contravening clauses:
(a)12.1(f) of the MBA Schedule to the MEA by providing the Applicant on appointment with a letter of appointment on a fixed term basis which did not stipulate any reasons for a fixed term contract of employment in respect of the 2016 Employment Contract.
(b)12.1(f) of the MBA Schedule to the MEA by providing the Applicant on appointment with a letter of appointment on a fixed term basis which did not stipulate any reasons for a fixed term contract of employment in respect of the Addendum to the 2016 Employment Contract.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $25,500 in respect of its contravention of section 50 of the FW Act as a result of contravening clause 13 of the MBA Schedule to the MEA by employing the Applicant on a casual basis where the work to be performed was not an irregular nature or for a short period of time in 2014.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $27,000 in respect of its contravention of section 50 of the FW Act as a result of contravening clause 13 of the MBA Schedule to the MEA by employing the Applicant on a casual basis where the work to be performed was not an irregular nature or for a short period of time in 2015.
Pursuant to section 546(1) of the FW Act, the Respondent pay the pecuniary penalty of $3,150 in respect of its contravention of section 535(1) of the FW Act by not making and keeping records in relation to the Applicant that was in a form prescribed by the Fair Work Act Regulations 2009 (Cth).
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $32,400 in respect of its contravention of section 340(1)(a) of the FW Act by taking adverse action against the Applicant by dismissing her because, or for reasons including, she had exercised

a workplace right within the meaning of section 341(1)(c) of the FW Act.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $27,000 in respect of its contravention of section 44(1) of the FW Act by breaching section 119(1) of the FW Act by failing to pay her redundancy pay in the sum of $9,220.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $27,000 in respect of its contravention of section 44(1) of the FW Act by breaching section 117(2) of the FW Act by failing to pay her in lieu of notice in the amount of $1,580.
Pursuant to section 546(3) of the FW Act, an order that the penalties ordered under section 546(1) of the FW Act in paragraphs 1 to 9 be paid, within 14 days, to the Australian Education Union (50% of the penalties) and the Applicant (50% of the penalties).
Save as aforesaid, the Applicant’s claims be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1118 of 2017

ROBYN STANTON-LONG

Applicant

And

FEDERATION TRAINING

Respondent

REASONS FOR JUDGMENT

Introductory

I observed in my decision in this matter as to the appropriate range of penalties (Stanton-Long v Federation Training (No.2) [2018] FCCA 3575) at [66] that:
“This has been a convoluted and complicated case to hear and determine. These reasons may well have overlooked or misstated certain aspects of the matter. I have followed the approach indicated generally in the parties’ submissions in dealing with each set of contraventions separately. I will direct the parties to bring in minutes and declarations to reflect my conclusions.”
Those remarks were proved prescient. This case is harder to kill off than Dracula. Hopefully, this ruling will be the final stake through the heart.
The parties raised two matters at the further hearing of the matter on

19 December 2018. The applicant sought the imposition of two further penalties, conceded by the respondent to have been overlooked by the Court, in respect of two contraventions of s.50 of the Fair Work Act 2009 (“FW Act”) as the result of the employment of the applicant on a casual basis when the work was not of an irregular nature or for a short period of time.
Additionally, the respondent asserted that the Court had failed to take the fourth (or, alternatively, fifth) step in the agreed methodology for the determination of penalties, namely, the totality principle.
For the reasons that follow, penalties will be imposed at the levels sought by the applicant in respect of the two contraventions of s.50, and I do not propose to reduce the overall level of penalties by reference to the totality principle, although I am going to address it in terms.

The Court’s Power to Make the Orders Sought

Both parties’ positions proceeded on the footing that the Court was not inhibited from making further orders and giving further reasons for judgment. Neither counsel referred to r.16.05(1) of the Federal Circuit Court Rules 2001 Rules (“the Rules”), but they plainly both had it in mind. Rule 16.05(1) provides:
“The Court or a Registrar may vary or set aside a judgment or order before it has been entered.”
It is clear, on any view of the matter, that the Court has not entered judgment in a final sense contemplated by r.16.07 of the Court’s Rules, and the Court is, therefore, not functus officio. I note that the power to vary or set aside a judgment order before it has been entered is discretionary, and is to be used “sparingly”, with great caution and rarely, having regard to the public interest in the finality of litigation (see Ashby v Slipper (No 2) [2014] FCAFC 67 at [12]-[15], and the cases therein cited).
I am comfortably satisfied that in the circumstances of this particular matter, it is open to the Court to entertain the submissions made. In truth, neither counsel’s submissions suggested otherwise.

The Additional Penalties

As I have already indicated, in the course of argument, it was conceded, at least as I understood it, by counsel for the respondent that the new orders 4 and 5 sought in the applicant’s proposed minute of orders were matters that had been overlooked by the Court in the course of forming what was, as I have already indicated, a convoluted judgment. The penalties sought by the applicant were conceded to be in the mid-range, and counsel did not dissemble from the proposition that it was properly open to the Court to impose penalties at that level. I indicated that

I would do so, and that will be reflected in the orders now to be made.

The Totality Principle

The respondent’s written submissions, supported obviously in oral submissions before the Court, effectively complained that the Court had failed to apply the totality principle. It was submitted that the Court had simply taken an arithmetical approach by adding up all the penalties to be imposed.
The applicant disputed that this is what the Court had done, and pointed to various passages in the judgment that, it was submitted, supported the proposition that the Court had had regard to the totality principle.
I confess I do not now directly remember whether I turned my mind to the totality principle or not. I was certainly aware of it, because I refer to the parties’ written submissions, in which the totality principle was, indeed, set out as the final appropriate step.
Re-reading the decision, and on balance, I am ashamed to say that I think that the respondent is correct, and that the decision does not address,

as it should have done, in terms, the application of the totality principle.
I do not take there to be significant, if any, dispute as to what the totality principle actually is. I have been provided with several authorities in the High Court, which are said to, as it were, constitute the origins of the phrase. The judgment of Greenwood J in Comcare v John Holland Pty Ltd [2016] FCA 501 at [84]-[86], quoted in the respondent’s written submissions, is, in my respectful view, a helpful overview:
“84. At [37], the plurality observe that a sentencing Court will, after weighing all the relevant factors, reach a conclusion that

a particular penalty is one that should be imposed. In doing so, adopting, as a method, a mathematical approach to sentencing in which there are to be “increments to” or “decrements from”

a predetermined range of sentences (that is to say, a “two-stage approach” to sentencing), is both wrong in principle and apt to give rise to error and should not be adopted.
85 In this respect, the plurality adopted the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at 611-612, [74]-[76]. As to the notion of “instinctive synthesis”, the plurality, again adopting the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen at [75], observe that the task of the sentencing judge is to “take account of all of the relevant factors and to arrive at

a single result which takes due account of them all” [emphasis added] and that this is “what is meant by saying that the task is to arrive at an ‘instinctive synthesis’”. The expression is not used to “cloak the task of the sentencer in some mystery” but is intended to reflect an obligation to balance “many different and conflicting features”.
86 Thus, the process of “instinctive synthesis” requires all of the factors to be balanced in a way which reflects an application of the “rules of reason” (rationality) taking into account all relevant matters, excluding extraneous or irrelevant matters and accurately having regard to the objective facts, all brought together in exposed reasons for the exercise of the discretion in the particular way, serving the public interest in transparency.”
It should be noted that this passage is incorrectly cited as being take from Comcare v John Holland Pty Ltd [2016] FCA 501 in the written submissions but that does not diminish the force of the extract.
The gravamen of the respondent’s submissions is that at paragraph 26, which notes that the aggregate total of penalties sought by the applicant is $205,000. The written submissions go on to assert, “As an exercise of totality, rather than the arithmetic, this sum is too high, and should be discounted to properly reflect the gravity of the various wrongdoing, including:
a.
the more serious offence, in relation to general protections

(see [52]-[56]; and
b.the less serious wrongdoing in the case of the record-keeping contraventions, in [58]-[60] of the penalty decision”.
In oral submissions, counsel suggested that the operation of the totality principle should properly produce a result that the penalties imposed should be half of the amount sought by the applicant.
By way of contradistinction, the applicant submitted that the contraventions were serious and by a significant publically funded body, and ought be sustained at the level previously considered appropriate.
It should be noted that the totality principle has also been expressed from time to time to involve considerations as to whether the result to be imposed will be crushing, or words of similar import, in its effect. No submission along these lines was advanced by the respondent. No doubt that is because the evidence in the case shows that, in effect, the State Government tops up bodies such as the respondent (a TAFE college)

to ensure their continued operation in any event.
In my view, the respondent’s written submissions take the matter further than can properly be the case. The only contraventions that I have assessed in the lower range were the record-keeping contraventions, which I assessed at 10 per cent. I assessed the contract-of-employment contraventions at 30 per cent, and all other contraventions at 50 to 60 per cent of the relevant maximums.
While I have already expressed and would repeat my sympathy with any employer seeking to work their way through industrial instruments

of the sort of complexity with which the respondent appears to be regularly confronted, the fact is, it is a large public corporation, publically funded. It employs a considerable number of people. It is important that its conduct in failing to meet its obligations be marked by an appropriate measure of penalty.
Taking the step back that the totality principle requires, and noting counsel for the respondent’s concession that it does not require any reduction of the overall totals to be imposed, I am of the view, looking at the matter afresh, that the cumulative total of the penalties that will be imposed is, indeed, a just and accurate reflection of the totality of the conduct of the respondent. Accordingly, there will be orders made in the form sought by the applicant.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 26 February 2019