Tyndall v Goulburn Valley Health (No.2)
[2017] FCCA 2112
•4 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
TYNDALL v GOULBURN VALLEY HEALTH (No.2) [2017] FCCA 2112
Catchwords:
INDUSTRIAL LAW – Contraventions of the Fair Work Act 2009 (Cth) – failure to pay employee motor vehicle allowance – declarations – compensation – pre-judgment interest – penalty payable to the Applicant.
Legislation:
Fair Work Act 2009 (Cth), ss.50, 545, 546, 547, 557
Federal Court of Australia Act 1976 (Cth), ss.51A, 52
Federal Court Rules 2011 (Cth), r.39.06
Cases cited:
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar. [2007] FMCA 7
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62
Tyndall v Goulburn Valley Health [2016] FCAFC 139Tyndall v Goulburn Valley Health [2015] FCCA 3384
Applicant: Joyce Tyndall
Respondent: Goulburn Valley Health
File Number: MLG 1829 of 2014
Judgment of: Judge Hartnett
Hearing date: 15 March 2017
Date of Last Submission: 5 May 2017
Delivered at: Melbourne
Delivered on: 4 September 2017 REPRESENTATION
Solicitors for the Applicant: McDonald Murholme Solicitors
Solicitors for the Respondent: Workplace Legal Solutions Pty Ltd THE COURT DECLARES THAT:
The Respondent contravened s.50 of the Fair Work Act 2009 (Cth) (‘the Act’) by failing to pay the Applicant the motor vehicle allowance prescribed by cl.48.6 of the Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007-2011 or by cl.46.6 of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016.
THE COURT ORDERS THAT:
(1)Pursuant to s.545(2)(b) of the Act the Respondent pay to the Applicant the amount of $2,759.00 within 14 days of these orders.
(2)Pursuant to s.547 of the Act the Respondent pay to the Applicant pre-judgment interest in the sum of $1451.00 within 14 days of these orders.
(3)The Respondent pay a penalty pursuant to sub-s.546(1) of the Act in the sum of $8,100.00.
(4)Pursuant to sub-s.546(3)(c) of the Act the penalty be paid to the Applicant within 14 days of these orders.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MelbourneMLG 1829 of 2014
Joyce Tyndall Applicant
And
Goulburn Valley Health Respondent
REASONS FOR JUDGMENT
1.On 18 December 2015 the Court handed down its decision in Tyndall v Goulburn Valley Health [2015] FCCA 3384. The Court dismissed Ms Tyndall’s application. Ms Tyndall appealed the Court’s decision to the Full Court of the Federal Court of Australia (‘the Full Court’). The appeal was heard on 19 August 2016 before Jessup, Tracey and Katzmann JJ. The Full Court handed down its decision on 14 October 2016.[1]
[1] Tyndall v Goulburn Valley Health [2016] FCAFC 139
2.Ms Tyndall’s appeal was allowed in part. The Full Court made the following declarations and orders:-
“1. The appeal be allowed in part.
2. It be declared that, in respect of any day on which the appellant finished duty at the respondent’s Tatura clinic at 12 noon and commenced duty at one of the respondent’s Shepparton clinics at 1 pm, she was entitled to be paid a vehicle allowance calculated conformably with the Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007–2011 or the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012–2016, as applicable on that day.
3. Order (1) made by the Federal Circuit Court of Australia on 18 December 2015 be set aside and in place thereof it be ordered:
(1) Save as dealt with in the declaration made by the Federal Court of Australia on 14 October 2016, the Application filed on 9 September 2014 be dismissed.
4. The proceeding be remitted to the Federal Circuit Court of Australia for determination of the following questions:
(a) The quantum of compensation payable to the appellant pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth).
(b) Whether penalties pursuant to s 546 of the Fair Work Act 2009 (Cth) should be paid, and if so the number of breaches and the quantum of the penalties that should be paid, and whether those penalties should be paid to the appellant.
5. Otherwise, the appeal be dismissed.”
3.On 15 March 2017 the Court made various procedural orders providing for the filing of submissions by each of the parties on the question of compensation, penalty and interest.
4.Before the Court are the Applicant’s submissions filed 7 April 2017; the Respondent’s submissions filed 28 April 2017; and the Applicant’s submissions in reply filed 5 May 2017.
5.There is also filed by the Respondent an affidavit sworn by Ms Stacey Jean Weeks filed on 26 April 2017. Although no order was sought nor made for either party to file further affidavits of evidence in the proceedings, leave is granted by the Court to file the affidavit and for the contents of the affidavit to be relied upon in the proceedings. The affidavit is necessary to accurately determine compensation in the first instance and goes to penalty in the second. The Applicant had an opportunity to address these issues in submissions in reply. The Applicant submitted the evidence of Ms Weeks should not be considered when considering compensation because “the evidence in the matter is closed”.[2] Evidence at trial did not address the issue of quantification of compensation in a particularised way for the occasions of the Applicant’s travel between Tatura and Shepparton together with the applicable vehicle allowance for each trip taken. The affidavit evidence as to compensation is derived from the Applicant’s roster records which are business records of the Respondent which provide to the Court and the parties an accurate detailing of the dates on which the Applicant worked at Tatura in the morning before on the same day, commencing a second shift in Shepparton at one of the Respondent’s clinics.
[2] Applicant’s submissions in reply filed 5 May 2017 at paragraph [2].
Compensation
6.The roster records of Ms Weeks, which detail the actual days on which travel occurred are preferred to the Applicant’s general approach. According to these records, the first breach occurred on 11 September 2008 and the last on 19 December 2013. The rates used to calculate the compensation owed are agreed by the parties and are as contained in the relevant enterprise agreements. The locations were always Tatura and Shepparton in which the travel distance has been calculated and agreed at 22km.
7.The schedule in Ms Weeks’ affidavit marked annexure ‘SW-1’ is relied upon by the Court. It is annexed to this judgment (‘Annexure A’).
8.Accordingly, the compensation amount payable is $2,759.00.
Interest
9.Section 547 of the Fair Work Act 2009 (Cth) (‘the Act’) is as follows:-
“FAIR WORK ACT 2009 - SECT 547 Interest up to judgment
Interest up to judgment
(1) This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.
(2) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(3) Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.”
10.The Respondent concedes that pre-judgment interest is payable to the Applicant and that no good cause is shown to the contrary.
11.Pursuant to s.547(3) of the Act interest is calculated from the date the cause of action arose being 11 September 2008 to the date these orders will be made.
12.The Federal Court of Australia Practice Note on “Interest on Judgments (GPN-INT)” issued by the Chief Justice on 25 October 2016 provides guidance in regard to interest on judgments arising under ss.51A and 52 of the Federal Court of Australia Act 1976 (Cth) and r.39.06 of the Federal Court Rules 2011 (Cth).
13.The table set out below, in the exercise of the Court’s discretion, represents a calculation of interest payable as determined by the Court:
| Effective Dates (interest calculated from end date of period) | Pre-judgment interest – Cash rate plus 4%(Per cent) | Money owed x (weeks to judgment/52) x interest rate | Interest payable at date of judgment (4 September 2017) |
| 1 July 2008 to 31 Dec 2008 | 11.25% | $128.92 x (452.71 /52) x 11.25% | $126.27 |
| 1 Jan 2009 to 30 Jun 2009 | 8.25% | $325.6 x (426.86/52) x 8.25% | $220.51 |
| 1 July 2009 to 31 Dec 2009 | 7.00% | $281.38 x (400.57/52) x 7% | $151.73 |
| 1 Jan 2010 to 30 Jun 2010 | 7.75% | $271.04 x (374.71/52) x 7.75% | $151.37 |
| 1 July 2010 to 31 Dec 2010 | 8.5% | $412.28 x (348.43/52) x 8.5% | $234.81 |
| 1 Jan 2011 to 30 Jun 2011 | 8.75% | $347.6 x (322.57/52) x 8.75% | $188.67 |
| 1 July 2011 to 31 Dec 2011 | 8.75% | $312.84 x (296.29/52) x 8.75% | $155.97 |
| 1 Jan 2012 to 30 Jun 2012 | 8.25% | $140.36 x (270.14/52) x 8.25% | $60.16 |
| 1 July 2012 to 31 Dec 2012 | 7.00% | $231.66 x (244/52) x 7.00% | $76.09 |
| 1 Jan 2013 to 30 Jun 2013 | 7.00% | $197.78 x (218.14/52) x 7.00% | $58.08 |
| 1 July 2013 to 31 Dec 2013 | 6.75% | $109.56 x (191.86/52) x 6.75% | $27.29 |
| $1,450.95 Rounded to $1,451.00. |
Penalty
14.The Respondent concedes that it has contravened s.50 of the Act by failing to pay the Applicant the motor vehicle allowance prescribed by cl.48.6 of the Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007-2011 and by cl.46.6 of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 in the period between 9 September 2008 and 31 January 2014 in situations where the Applicant performed a morning shift in Tatura and then an afternoon shift in Shepparton on the same day.
15.Subsection 557(1) of the Act relevantly provides that two or more contraventions of a civil remedy provision referred to in sub-s.557(2) are, subject to sub-s.(3), taken to constitute a single contravention if the contraventions are committed by the same person and the contraventions arose out of a course of conduct by the person.
16.The Court finds that the Respondent’s failure to pay the Applicant a motor vehicle allowance constitutes a single contravention wherein the breaches arose out of a single act or decision.[3]
[3] Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62.
17.The relevant maximum penalty for a single contravention of s.50 of the Act by a corporate entity is $54,000.00.
18.A non-exhaustive list of factors relevant to the imposition of a penalty was usefully summarised by Mowbray FM (as he was then) in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar.[4] The factors include:-
[4] [2007] FMCA 7, 26-59.
a)the nature and extent of the conduct which led to the breaches;
b)the circumstances in which that conduct took place;
c)the nature and extent of any loss or damage sustained as a result of the breaches;
d)whether there had been similar previous conduct by the respondent;
e)whether the breaches were properly distinct or arose out of the one course of conduct;
f)the size of the business enterprise involved;
g)whether or not the breaches were deliberate;
h)whether the party committing the breach had exhibited contrition, taken corrective action and cooperated with the enforcement authorities;
i)the need to ensure compliance with minimum standards by provision of effective means for investigation; and
j)the need for specific and general deterrence.
19.This summary was adopted by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 at [30]. While the summary is a convenient checklist, it does not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion.
20.The penalty sought by the Applicant and to be paid to her, in the sum of $150,000 is excessive. A penalty is not awarded in substitution and like sum for a claim that has for the most part failed. The Applicant initially sought a payment for motor vehicle allowances exceeding $116,000.
21.The difficulty for the Respondent in these proceedings was that the Applicant continued until after the commencement of the trial to pursue a claim that was beyond the six year limitation as provided for by s.545(5) of the Act, and in circumstances where the Applicant knew or ought to have known the Court had no jurisdiction to entertain such a claim. Furthermore, the Applicant was advised of same by the Respondent prior to the issue of proceedings. The Applicant was not deterred.
22.In these circumstances, and given the nature of the Applicant’s claims which in the main, sought a motor vehicle allowance to travel between her residence and her place of work and home again, a claim that has been rejected by the Full Court on appeal, the Respondent was afforded no opportunity to engage in any dialogue to resolve the matter.
23.There is no need for specific deterrence in this matter. The Respondent has engaged in no previous conduct of this type. No enforcement authorities were involved in the matter. There was no reckless disregard of the Applicant’s entitlements.
24.It is difficult to find a need for general deterrence either in the particular circumstances of this case.
25.What has occurred is a loss to the Applicant which will now be rectified.
26.The Respondent, a large business, did not concede the claim in respect of the Applicant’s travel between locations at any time although the breaches were not deliberate. The breaches continued over a long period and were reasonably significant in the sense that the Applicant was in receipt of a relatively low income.
27.After having considered the above factors, I determine that the Respondent should pay a penalty of 15% of the maximum penalty.
28.The Applicant seeks payment of any penalty be made to her. The Respondent opposes the payment of any penalty imposed by the Court be paid to the Applicant.
29.The Court, in exercising its discretion, will order the penalty be payable to the Applicant.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 4 September 2017
‘Annexure A’
2
5
4