Tyndall v Goulburn Valley Health

[2015] FCCA 3384

FEDERAL CIRCUIT COURT OF AUSTRALIA

TYNDALL v GOULBURN VALLEY HEALTH [2015] FCCA 3384

Catchwords:
INDUSTRIAL LAW – Alleged contravention of s.50 of the Fair Work Act 2009 (Cth) – claim for travel allowances and penalties – non-satisfaction of cl.46.6 of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.50, 545(5)

Lunny & Hayley v Federal Commissioner of Taxation (1958) 100 CLR 478

Applicant: JOYCE TYNDALL

Respondent: GOULBURN VALLEY HEALTH
(ABN 69 541 423 898)

File Number: MLG 1829 of 2014

Judgment of: Judge Hartnett

Hearing date: 14 October 2015

Delivered at: Mildura

Delivered on: 18 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Irving

Solicitors for the Applicant: McDonald Murholme

Counsel for the Respondent: Mr McKeown

Solicitors for the Respondent: Workforce Legal Solutions Pty Ltd

ORDERS

1. The Application filed on 9 September 2014 is dismissed.

2. Costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MILDURA

MLG 1829 of 2014

JOYCE TYNDALL

Applicant

And

GOULBURN VALLEY HEALTH
(ABN 69 541 423 898)

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Applicant filing an Application and Statement of Claim on 9 September 2014.

2. The Applicant alleges the Respondent breached s.50 of the Fair Work Act 2009 (Cth) (‘the Act’). Section 50 of the Act is as follows:-

   “A person must not contravene a term of an enterprise agreement.”

3. The Applicant, Ms Joyce Tyndall, seeks $116,865.98 in travel allowances for the period 1 January 2002 to 31 August 2014, arising under the following enterprise agreements:-

   a)Nurses (Victorian Public Health Sector) Multi-Business Agreement 2000 -2004;

   b)Nurses (Victorian Public Health Sector) Multiple Business Agreement 2004 -2007;

   c)Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007 -2011 (‘2007 EA’); and

   d)Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (‘2012 EA’).

4. The Applicant also seeks penalties for alleged contraventions of the aforementioned enterprise agreements and that such penalties be paid to the Applicant.

5. The Respondent opposes the orders sought by the Applicant.

Limit to statutory jurisdiction

1. The Respondent relied upon s.545(5) of the Act to limit the Applicant’s claim to the period from 9 September 2008 onward.

2. Section 545(5) of the Act is as follows:-

   “A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.”

   The Applicant’s claims for travel allowances and penalties beyond six years from the commencement of proceedings are outside this Court’s statutory jurisdiction. At trial, that was conceded by the Applicant. Following the limiting of the Applicant’s claim, the Applicant claimed an amount of motor vehicle allowance owed in the sum of $70,660.

3. The relevant industrial agreements are thus the enterprise agreements covering the Applicant’s employment with the Respondent from 9 September 2008 which are as follows:-

   a)Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007 - 2011), known as, the Nurses (Victorian Public Health Sector) Multiple Business Agreement 2004 - 2007 operational from 20 June 2005 to 5 July 2012 (‘2007 EBA’); and

   b)the 2012 EA.

4. Clause 46.6 of the 2012 EA reads as follows:-

   “46.6 Vehicle allowance

   (a) Where an Employee is required to provide her/his own mode of conveyance in connection with his/her duties, she/he shall be paid a vehicle allowance as set out in Schedule B. Provided that there be a minimum payment of the amount set out in Schedule B for each occasion of use.

   (b) For the purpose of Schedule B, PMU means power mass units as stated in the certificate of registration for the vehicle.”

5. Clause 48.6 of the 2007 EA is in identical terms.

6. The trial on 14 October 2015 was a trial as to liability only.  The parties agreed any quantum hearing that might be necessary thereafter would proceed on a further date.

7. Statements of facts in these Reasons are findings of facts on the balance of probabilities. Evidence was given in the proceedings by the Applicant and by Mr Christopher Stephen Barnard, Operations Manager for Goulburn Valley Health Pathology since January 2011. I prefer the evidence of Mr Barnard in the limited instances where it conflicted with that of the Applicant. He presented as a reliable witness who was careful in his deliberations. He took contemporaneous notes of his meetings with the Applicant on 28 and 30 days of January 2014.

Evidence

1. The Applicant commenced employment with the Respondent in January 1998 as a casual Phlebotomist. The Applicant was offered a permanent part-time position of Phlebotomist with the Respondent, effective from 6 December 2004, which she accepted.

2. The Applicant’s position as a Phlebotomist has required her to collect pathology samples at the Respondent’s clinics in Nathalia, Tatura and Shepparton. The Nathalia Clinic opens on Mondays, Wednesdays and Fridays from 8.00am to 12noon. The Tatura Clinic opens on a Tuesdays and Thursdays from 8.00am to 12noon. The Shepparton clinics are open ranging from 7.30am to 5.00pm Monday to Friday. The Respondent has four collection clinics in Shepparton, being:-

   i)Goulburn Valley Health in Graham Street, Shepparton;

   ii)Shepparton Private Hospital in Fitzgerald Street, Shepparton;

   iii)Community Health Clinic in Corio Street, Shepparton (Corio Street replaced Nixon Street Clinic, Shepparton from 19 May 2014); and

   iv)Shepparton Medical Centre in Graham Street, Shepparton.

3. The Applicant’s work, on the evidence as I find it, is compartmentalised to each clinic location described in the preceding paragraph and no crossover work occurs. There are a different set of patients in each of the locations of Nathalia, Tatura and Shepparton. The evidence of Mr Barnard described the nature of the duties as follows: “There would be no crossover between the duties… because in terms of each individual patient that you see, that is a single individual episode and an individual collection, which would be done at the location in question. So it wouldn’t be carried over from one location to another”. The Applicant meets each individual patient at each location and is handed a “request slip” (as completed by the requesting doctor) by the patient. That form dictates what blood samples the Applicant is to take in respect of the individual. The Applicant identifies the patient, takes the blood samples requested, and then labels and containerises those specimens. The Applicant is not required to transport pathology samples from one clinic to another, or at all, save as described later in this paragraph. Transportation of pathology samples is performed by couriers engaged by the Respondent for this task. Occasionally the task of transportation is also undertaken by Phlebotomists conducting home visits in accordance with the protocol and procedure specified by the Respondent in its Home Visit Safety Guidelines document. Such home visits are only offered by the Respondent in and around Shepparton, save for very rare occasions, for example when one Phlebotomist is doing the work of another (who is on leave) and a home visit is included. On those occasions such Phlebotomists are provided with a company vehicle to carry out the task of transportation. Indeed, the Applicant has on occasion performed a home visit in or around Shepparton and in those instances been provided with a vehicle by the Respondent for the purposes of transportation of the blood samples taken.

4. The Applicant gave evidence that she also performed home visits in and around Nathalia. This occurred prior to January 2011. The Respondent was not initially aware that had occurred. Such activity was not required nor authorised to be performed by the Applicant in Nathalia. When the Respondent became aware of the activities of the Applicant in performing home visits, it requested the Applicant to cease such activities.

5. From January 1998, being the commencement of the Applicant’s employment with the Respondent, the Applicant resided in Nathalia and worked three morning shifts at Nathalia and two morning shifts at Tatura. The Applicant also commenced to work an afternoon shift from 1.00pm to 5.00pm in Shepparton. The Applicant travelled from her home to work and back again. In March 2008, being prior to the period of employment in relation to which this claim is now made, the Applicant changed her domestic residence from Nathalia to Shepparton. In choosing to relocate from Nathalia to Shepparton, the Applicant increased her work commute to the Nathalia Clinic by 247.8 kilometres per week. Evidence was led before the Court that the distance from Nathalia to Shepparton is approximately 41.3 kilometres, making a round trip of 82.6 kilometres three times a week. The Respondent did not require the Applicant to move her domestic residence from Nathalia to Shepparton. Indeed, the Respondent was not aware of such relocation until the Applicant notified the pay office of a change of address. The Applicant’s choice of domestic residence was her own. In November 2014, the Applicant chose again to move her domestic residence. She returned to Nathalia.

6. In 2009, the Applicant (by letter dated 5 May 2009 addressed to Ms Jacinta Russell, Manager Goulburn Valley Health Pathology Services) requested a reduction in her weekly hours from 24 hours per week to 20 hours per week which enabled her to drop her shift at Tatura on a Tuesday. The Applicant’s request was acceded to by the Respondent and became effective from 19 May 2009.

7. From 19 May 2009, the Applicant worked three morning shifts at Nathalia on Mondays, Wednesdays and Fridays. The Applicant also worked a morning shift at Tatura on Thursdays and in the afternoon worked an afternoon shift at the Nixon Street Clinic, Shepparton. The Nixon Street Clinic was replaced by the Corio Street Clinic in May 2014. Occasionally the Applicant, instead of working at the Nixon Street Clinic on a Thursday, would be asked to work at the Goulburn Valley Hospital in Graham Street, Shepparton.

8. From 8 September 2013 onwards, aside from one occasion on 19 December 2013, the Applicant was not asked to work in Tatura on Thursdays morning, and worked three morning shifts at Nathalia and then an eight hour shift at Shepparton in one of the Respondent’s four collection clinics.

9. On or about 7 October 2013, the Applicant wrote to Ms Jacinta Russell (Mr Barnard’s direct manager), Ms Carol Northey (the Applicant’s direct manager) and Mr Christopher Barnard requesting that she be able to group her rostered hours spread over four days (Mondays, Wednesdays, Thursdays and Fridays) together by working eight hours on Thursdays and Fridays.

10. On 28 January 2014 and again on 30 January 2014, the Applicant had discussions with Mr Christopher Barnard regarding the reduction of her working hours from 20 hours per week to 16 hours per week as then requested by her. Mr Barnard indicated that 16 hours in two, eight hour shifts in Shepparton would not be possible but that the Applicant could consolidate her hours worked across Wednesday, Thursday and Friday.  The Applicant would still be required to work at Nathalia on Wednesday and Friday mornings (four hour shifts) and could work an eight hour shift at Shepparton on Thursday, with the qualification that the Respondent reserved it’s right to roster a shift at Tatura as operationally required. Mr Barnard also gave the Applicant the option of continuing her then current shifts at 20 hours per week. The Applicant indicated that she would consider what was proposed by the Respondent in the first meeting and subsequently indicated, following the second meeting, she would accept same. The grouping of the Applicant’s work days together from Wednesday to Friday made it easier for the Applicant to visit her family in Queensland. Mr Barnard told the Applicant that no motor vehicle would be provided for her travel as it was not work related travel. This was in response to the Applicant’s requests for a motor vehicle. 

11. By letter of 14 February 2014, the Respondent forwarded to the Applicant a form headed “Variation Form Employment Status” which was required to be signed by each party indicating agreement to the proposed change in working hours and in this instance, thus location, before any such changes could take effect. The Applicant declined to accept the variation as she no longer wished to reduce her hours. She explained that what she sought was a cessation of her work in Nathalia and a substitution of that work in Shepparton. That could not be accommodated by the Respondent so no agreement eventuated.

12. The Applicant currently works 20 hours per week for the Respondent. The Applicant works three morning shifts at the Respondent’s Nathalia collection office from 8.00am to 12noon on Mondays, Wednesdays and Fridays and she works an eight hour shift on Thursdays at one of four of the Respondent’s collection offices in Shepparton.

13. The Applicant argues that she is, and has been, required to provide her own mode of conveyance in connection with her work duties in multiple locations. That is, it matters not where she lives, she must have a motor vehicle in order to perform her duties, and in the absence of the provision of one by her employer, the Applicant is required to provide her own car. The Applicant argues secondly that she has not been given a letter of appointment in accordance with the Enterprise Bargain specifying her location of employment. Hence, she can be directed to perform work at many locations. When she is travelling to that location she is directed to, it is argued, she is performing a duty to obey a direction. This second argument has no merit. The issue before the Court is solely whether the Applicant “is required to provide his/ her own mode of conveyance in connection with his/her duties...”.

Consideration

1. Counsel for the Respondent relevantly referred the Court to the decision in Lunny & Hayley v Federal Commissioner of Taxation (1958) 100 CLR 478 (‘Lunny’), where the High Court of Australia affirmed a long-standing line of decisions that fares paid by taxpayers to enable them to go, day by day, to their regular place of employment or business and back to their homes are not deductible against assessable income earned by them from their employment or business.

2. In Lunny, Williams, Kitto and Taylor JJ said at pages 498 and 499, the following:-

   “It is, of course, beyond question that unless an employee attends at his place of employment he will not derive assessable income and, in one sense, he makes the journey to his place of employment in order that he may earn his income. But to say that expenditure on fares is a prerequisite to the earning of a taxpayer's income is not to say that such expenditure is incurred in or in the course of gaining or producing his income. Whether or not it should be so characterised depends upon considerations which are concerned more with the essential character of the expenditure itself than with the fact that unless it is incurred an employee or a person pursuing a professional practice will not even begin to engage in those activities from which their respective incomes are derived.”

3. It is plain that the Applicant uses her motor vehicle to attend her various work locations. She travels, on her own evidence, from home to work and then back again. That includes when she may do a morning shift in Tatura and an afternoon shift in Shepparton. But that is a very different matter to the Applicant being required by the Respondent to provide her own motor vehicle in connection with her duties as a Phlebotomist. She is not so required. The Applicant’s travel is of a private nature.

4. The Court is of the view that the only relevant matter for its consideration is whether or not the Applicant falls within cl.46.6 of the 2012 EA (and cl.48.6 of the 2007 EA) as set out in paragraph 9 herein. The Court concludes the Applicant does not as she does not require a motor vehicle in connection with her duties, as distinct from travelling to and from work. She has had permanent work locations and hours which if changed required both parties to agree and sign off on a Variation to Employment Form. A prerequisite of her obtaining her employment was a driver’s licence but not a motor vehicle. She was required to have an ability to transfer work locations. Her motor vehicle was used to travel to and from her differing places of employment on any given day. It was not required by the Respondent in the performance of her duties.

5. Accordingly, the application shall be dismissed. The question of whether costs should be awarded is reserved.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 18 December 2015