Tran v Macquarie University (No.2) - [2019] FCCA 2049

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MACQUARIE UNIVERSITY (No.2)

[2019] FCCA 2049

Catchwords:

INDUSTRIAL LAW – Contravention of s 340 Fair Work Act 2009 – applicant exercised a work place right – complaints – redundancy – contravention of s 50 Fair Work Act – failing to redeploy in accordance with Enterprise Agreement – failure to rebut presumption in s 361 Fair Work Act.

Legislation:

Fair Work Act 2009 (Cth), ss.40, 50, 76, 340, 341, 342, 360, 361, 545, 546, 547

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction Forestry Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd(No. 3) [2012] FCA 697
Jones v Dunkel (1959) 101 CLR 298
Kucks v CSR Ltd (1996) 66 IR 182
Murrihy v Betezy.com.au Pty ltd (2013) 238 IR 307
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Squires v Flight Stewards Association of Australia (1982) 2 IR 155

Applicant:

HEIN MINH THI TRAN

First Respondent:

MACQUARIE UNIVERSTITY

File Number:

SYG 3084 of 2017

Judgment of:

Judge Humphreys

Hearing date:

1 - 4, 9 July 2019

Date of Last Submission:

9 July 2019

Delivered at:

Sydney

Delivered on:

31 July 2019

REPRESENTATION

Counsel for the Applicant:

Ms Doust

Solicitors for the Applicant:

Mr Forsyth, Hall Payne Lawyers

Counsel for the Respondents:

Mr Brotherson

Solicitors for the Respondents:

Ms Zadel, HWL Ebsworth Lawyers

ORDERS

A declaration that the respondent has contravened s 340 of the Fair Work Act 2009 by dismissing the applicant because of, or because she exercised, her workplace right(s).
A declaration that the respondent has contravened s 340 of the Fair Work Act 2009 by refusing to redeploy the applicant to a positon for which she had the necessary skills causing injury in her employment.
A declaration that the respondent contravened s 50 of the Fair Work Act by contravening clause 6.2.8 of the Macquarie University Professional Staff Enterprise Agreement 2015.
A declaration that the respondent contravened s 50 of the Fair Work Act 2009 by contravening clause 6.2.9 of the Macquarie University Professional Staff Enterprise Agreement 2015.

The matter will be listed for further submissions as to the appropriate orders that should be made in light of the above declarations, including orders for reinstatement and penalties.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3084 of 2017

HEIN MINH THI TRAN

Applicant

And

MACQUARIE UNIVERSTITY

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Ms Hein Minh Thi Tran (“Ms Tran”) seeking relief under relevant provisions of the Fair Work Act 2009 (“FW Act”), following the termination of Ms Tran’s employment from Macquarie University (“the University”) as a System Accountant Level HEW8 on 19 June 2017. The stated reason for the termination of Ms Tran’s employment was that of redundancy.
The applicant sought the following final orders in her application…

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: [2019] FCCA 2049
Decision Date: 31 July 2019

CaseChat Overview and Summary

The applicant, Ms. Tran, brought proceedings against Macquarie University, alleging contraventions of the *Fair Work Act 2009* (Cth). The dispute concerned Ms. Tran's redundancy and the University's alleged failure to redeploy her in accordance with the relevant Enterprise Agreement, which Ms. Tran contended constituted a breach of section 50 of the Act. Ms. Tran also alleged that the University had contravened section 340 of the Act by taking adverse action against her because she had exercised a workplace right. The matter was heard by Judge Humphreys in the Federal Court of Australia.

The court was required to determine whether Macquarie University had contravened section 50 of the *Fair Work Act 2009* by failing to redeploy Ms. Tran in accordance with the terms of the Enterprise Agreement. Furthermore, the court had to consider whether the University had contravened section 340 of the Act by taking adverse action against Ms. Tran, and whether the University had successfully rebutted the presumption of contravention established by section 361 of the Act.

Judge Humphreys found that Macquarie University had contravened section 50 of the *Fair Work Act 2009* by failing to redeploy Ms. Tran in accordance with the Enterprise Agreement. The court also found that the University had contravened section 340 of the Act, holding that the University had taken adverse action against Ms. Tran. The University failed to rebut the presumption of contravention under section 361 of the Act.

Orders