Victorian Xray Group Pty Ltd v Ho

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FEDERAL COURT OF AUSTRALIA

Victorian Xray Group Pty Ltd v Ho [2020] FCA 27

Appeal from: Industrial Division of the Magistrates’ Court of Victoria (J13120311/2019, Orders of 20 August 2019)
File number: VID 1008 of 2019
Judge: STEWARD J
Date of judgment: 24 January 2020
Catchwords: PRACTICE AND PROCEDURE – appeal from decision of magistrate sitting in the Industrial Division of the Magistrates’ Court of Victoria – notice of objection to competency – whether appeal lies to the Federal Court by reason of s. 565 of the Fair Work Act 2009 (Cth) – whether the magistrate was exercising jurisdiction under the Fair Work Act 2009 (Cth) – whether matter simply concerned contractual enforcement
Legislation:

Acts Interpretation Act 1901 (Cth) s. 2B

Fair Work Act 2009 (Cth) ss. 113, 565, 570

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

Judiciary Act 1903 (Cth) s. 39

Magistrates’ Court Act 1989 (Vic) s. 4

Cases cited:

Bannon v. Nauru Phosphate Royalties Trust [2019] VSCA 303

Elders Ltd v. Swinbank (2000) 96 FCR 303

Maughan Thiem Auto Sales Pty Ltd v. Cooper (2013) 216 FCR 197

Moorgate Tobacco Co Ltd v. Philip Morris Ltd (1980) 145 CLR 457

Plancor Pty Ltd v. Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357

Treasury Wine Estates Vintners Ltd v. Pearson [2019] FCAFC 21

Tucker v. State of Victoria [2019] VSC 481
Date of hearing: 18 December 2019
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 39
Counsel for the Appellants: Ms R. Preston
Solicitor for the Appellants: Webb Korfiatis Commercial
Counsel for the Respondent: Mr R. A. Millar
Solicitor for the Respondent: Capree Lawyers

ORDERS

VID 1008 of 2019
BETWEEN:

VICTORIAN XRAY GROUP PTY LTD

First Appellant

VICTORIAN XRAY GROUP (FRANKSTON) PTY LTD

Second Appellant
AND:

STELLA HO

Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

24 JANUARY 2020

THE COURT ORDERS THAT:

1.The respondent’s Notice of Objection to Competency filed on 14 October 2019 be dismissed.

2.The matter be referred to mediation before a Registrar of this Court on a date to be fixed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

STEWARD J:

  1. On 20 August 2019, a magistrate, sitting in the Industrial Division of the Magistrates’ Court of Victoria, gave judgment in favour of the respondent (in the sum of $45,493.27, plus interest and costs).  The respondent, who had been employed by either the first or second appellant, had claimed that she had been underpaid in breach of her contract of employment.  That claim was upheld.  The appellants seek to appeal that decision to this Court.  The respondent objects to the competency of that appeal.

    Legislative Provisions

  2. The operative provision here is s. 565 of the Fair Work Act 2009 (Cth) (the “FW Act”).  It relevantly provides as follows:

    Appeals from eligible State or Territory courts

    Appeals from original decisions of eligible State or Territory courts

    (1)An appeal…

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Details
Case
[2020] FCA 27
Decision Date

CaseChat Overview and Summary

The Victorian Xray Group Pty Ltd and two other appellants were the defendants in a case brought by Ms Ho before the Industrial Division of the Magistrates’ Court of Victoria. Ms Ho claimed that the appellants had failed to pay her accrued long service leave and the balance of her accrued annual leave upon the termination of her employment. The appellants contested this claim, asserting that the Health Services Union of Australia (Private Radiology – Victoria) Award 2003, under which Ms Ho was employed, had ceased to operate. The case was subsequently appealed to the Federal Circuit Court of Australia.

The primary legal issue before the Federal Circuit Court was whether the appeal from the Magistrates’ Court to the Federal Court was permissible under section 565 of the Fair Work Act 2009 (Cth). This section deals with appeals from decisions made by the Industrial Division of the Magistrates’ Court. Another significant issue was whether the magistrate was exercising jurisdiction under the Fair Work Act 2009 (Cth) or if the matter was purely a matter of contractual enforcement. The court also considered whether Ms Ho's claim was primarily contractual or had a statutory underpinning as provided by section 113 of the Fair Work Act 2009 (Cth).

In resolving these issues, the Federal Circuit Court referred to section 4(3C) of the Magistrates’ Court Act, which mandates that the Industrial Division must exercise its jurisdiction with minimal legal form and technicality. The court found that the appeal was permissible under section 565 of the Fair Work Act 2009 (Cth) because the matter involved the interpretation and application of the Fair Work Act 2009 (Cth) and related awards. Furthermore, the court determined that the magistrate was exercising jurisdiction under the Fair Work Act 2009 (Cth) as the matter involved the enforcement of awards and related statutory provisions. The court also concluded that Ms Ho's claim had both a contractual and statutory basis, but the contractual claims were clear and determinative.

The court dismissed the respondent’s Notice of Objection to Competency and ordered the matter to be referred to mediation before a Registrar of the Federal Circuit Court. This decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in such cases.

Orders

Orders of the court

1. The respondent’s Notice of Objection to Competency filed on 14 October 2019 be dismissed.

2. The matter be referred to mediation before a Registrar of this Court on a date to be fixed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 4(3C) of the Magistrates’ Court Act provides:The Industrial Division must exercise its jurisdiction with the minimum of legal form and technicality.Judgment Below By a Notice of Complaint dated 7 November 2018, the respondent pleaded that the appellants were in breach of her contract of employment when they failed to pay her accrued long service leave and the balance of her accrued annual leave. These liabilities were said to have arisen upon the respondent ceasing to be employed by the first appellant (or, in the alternative, the second appellant) on 1 March 2018. The respondent pleaded, as an alternative case, that the appellants were in breach of the Health Services Union of Australia (Private Radiology – Victoria) Award 2003 (the “pre-modern award”). Paragraph 16 of the Notice of Complaint is as follows:Alternatively, in breach of the pre-modern award, the Defendant (s) has failed to or neglected to pay the Plaintiff’s accrued long service leave. The appellants, by their Notice of Defence, denied that they were in breach of the respondent’s contract of employment. They also pleaded that the pre-modern award ceased operating from 13 September 2011, thus denying the respondent an alternative basis for being paid accrued long service leave. In her Notice of Reply, amongst other things, the respondent contended that s. 113 of the FW Act preserved her entitlements under the pre-modern award. At para 1.4, the respondent pleaded as follows:1.4.Her long service leave entitlements under the pre-modern award are preserved by virtue of section 113 of the Fair Work Act 2009 (Cth) (‘FWA’).ParticularsA.The pre-modern award outlined the long service leave terms in relation to the Plaintiff, and as provided in section 113(1) of the FWA, the Plaintiff is entitled to long service leave in accordance with those terms (namely, clause 34.2 of the pre-modern award).B.Under section 113(3) and (3A) of the FWA, the test time was 31 December 2009 as the FWA commenced on 1 January 2010.C.The Health Professionals and Support Services Award 2010 (‘modern award’) did not apply at the test time. Further, the modern award does not deal with long service leave, other than to clarify that the ‘...State and Territory long service leave laws or long service leave entitlements under s.113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after [at 20.3, Note 3]’.D. The pre-modern [award] also existed on 1 January 2010.E.Paragraphs 436 to 444 of the Explanatory Memorandum of the Fair Work Bill 2008 pertained to long service leave. Under paragraph 438, the Division ‘preserves long service leave entitlements in pre­modernised awards (referred to as applicable award-derived long service leave terms [in the FWA]). The written submissions filed by the respondent squarely raised a case that was primarily anchored in contractual claims. That may be accepted. However, contrary to the submission of the respondent, it was not exclusively based on those claims. Her written submissions before the Magistrates’ Court state as follows:[Ms Ho’s] claim is brought in contract – there is in addition a statutory underpinning of both claims, but it is unnecessary for the Court to determine the matter on that basis as the contractual claims are clear and determinative.…As noted above, quite apart from the contractual claim, there is a statutory underpinning for the claim. Section 113 of the Fair Work Act provides for the ongoing operation of long service leave provisions in Awards in the present circumstances. The Plaintiff does not however need to rely on her statutory rights – the contractual analysis is sufficient.

Ratio Decidendi

Legal Principle Established

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