FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAN v MACQUARIE UNIVERSITY (No.3) | [2020] FCCA 1010 |
| Catchwords: INDUSTRIAL LAW –Contravention under s.340 of the Fair Work Act 2009 (Cth) – response to the Respondent’s final submissions re remedy (RFS) – application for reinstatement – approach to compensation – Applicant exercised a workplace right – where the Respondent contravened the Enterprise Agreement – whether or not the breaches were deliberate – orders made. |
| Legislation: Crimes Act 1914 (Cth) s.4AA Fair Work Act 2009 (Cth), ss.50, 340, 360, 545, 546, 557, 570 Federal Circuit Court Act 1999 (Cth), s.76 |
| Cases cited: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 Dafallah v Fair Work Commission [2014] FCA 328 Fair Work Ombudsman v Nobrace Centre Pty Ltd (in Liquidation) (ACN 121 556 447) & ORS (No.2) [2019] FCCA 2970 Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown Flavel v Railpro Services Pty Ltd. (No 2) [2013] FCCA 1449 Independent Education Union v Geelong Grammar School [2000] FCA 557 Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 Port Kembla Coal Terminal Ltd v Construction, Forestry Mining and Energy Union (2016) 248 FCR 18 Quinn v Overland (2010) 199 IR 40 |
| Applicant: | HEIN MINH TRAN |
| Respondent: | MACQUARIE UNIVERSITY |
| File Number: | SYG 3084 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 23 January 2020 – 24 January 2020 |
| Date of Last Submission: | 23 January 2020 – 24 January 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 6 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Doust |
| Solicitors for the Applicant: | Hall Payne Lawyers |
| Counsel for the Respondent: | Mr Brotherson |
| Solicitors for the Respondent: | HWL Ebsworth |
ORDERS
The Respondent pay pecuniary penalties as follows:
(a)$20,000.00 for the two breaches under the s.50 of the Fair Work Act 2009 (Cth). Each breach being $10,000.00.
(b)$15,000.00 for the breach under s.340 of the Fair Work Act 2009 (Cth), in refusing to redeploy the Applicant.
(c)$10,000.00 for the breach under s.340 of the Fair Work Act 2009 (Cth), in dismissing the Applicant.
Being a total of $45,000.00. Pursuant to s.546(3)(c) of the Fair Work Act 2009 (Cth), the Court orders that the penalties be paid to the Applicant.
The Court declines to order reinstatement.
The Respondent is to pay the sum of $221,163.45 as compensation for lost wages.
The Respondent is to pay the sum of $55,156.19 in lost superannuation payments.
The Applicant and Respondent are to confer and approach the relevant superannuation fund to ascertain the benefit lost from that having not been invested in, over the relevant period. The amount of $55,156.19 and any amount lost in investment return is to…
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- Case
- [2020] FCCA 1010
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Macquarie University had contravened section 340 of the *Fair Work Act 2009* (Cth) by refusing to redeploy and subsequently dismissing the applicant, and whether these actions were taken because the applicant had exercised a workplace right. Additionally, the court considered contraventions of section 50 of the Act and the terms of the Enterprise Agreement, and whether these breaches were deliberate. The court also had to decide on the appropriate remedies, including pecuniary penalties, compensation for lost wages and superannuation, future economic loss, non-economic loss, and the question of reinstatement.
Judge Humphreys found that Macquarie University had contravened the *Fair Work Act 2009* (Cth) and the Enterprise Agreement. The court determined that the University contravened section 50 of the Act on two occasions, with each breach attracting a penalty of $10,000.00. Further, the University contravened section 340 of the Act by refusing to redeploy the applicant, attracting a penalty of $15,000.00, and by dismissing the applicant, attracting a penalty of $10,000.00. In total, pecuniary penalties of $45,000.00 were ordered to be paid to the applicant. The court declined to order reinstatement. Significant compensation was awarded, including $221,163.45 for lost wages, $55,156.19 for lost superannuation payments (with further orders to ascertain and pay lost investment returns), $278,282.00 for future economic loss, and $15,000.00 for non-economic loss, with interest. The court declined to make an order as to costs.
Orders
Orders of the court
ORDERS
1. The Respondent pay pecuniary penalties as follows:
1. (a) $20,000.00 for the two breaches under the s.50 of the Fair Work Act 2009 (Cth). Each breach being $10,000.00.
1. (b) $15,000.00 for the breach under s.340 of the Fair Work Act 2009 (Cth), in refusing to redeploy the Applicant.
1. (c) $10,000.00 for the breach under s.340 of the Fair Work Act 2009 (Cth), in dismissing the Applicant.
1. Being a total of $45,000.00. Pursuant to s.546(3)(c) of the Fair Work Act 2009 (Cth), the Court orders that the penalties be paid to the Applicant.
2. The Court declines to order reinstatement.
3. The Respondent is to pay the sum of $221,163.45 as compensation for lost wages.
4. The Respondent is to pay the sum of $55,156.19 in lost superannuation payments.
5. The Applicant and Respondent are to confer and approach the relevant superannuation fund to ascertain the benefit lost from that having not been invested in, over the relevant period. The amount of $55,156.19 and any amount lost in investment return is to be paid to the Applicant’s superannuation fund.
6. The Respondent to pay a sum fixed in the amount $278,282.00, as compensation for future economic loss.
7. The Respondent to pay a sum fixed in the amount of $15,000.00, as compensation for non-economic loss. Interest at the applicable Court rate is to be paid on this amount.
8. The Court declines to make an order as to costs.
9. Liberty to restore on 2 days’ notice.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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