Wardman v Macquarie Bank

[2020] FCCA 1048

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARDMAN & ORS v MACQUARIE BANK [2020] FCCA 1048

Catchwords:
PRACTICE & PROCEDURE – Application in a case seeking orders in respect of discovery – parties able to advance case on the information already filed and served – discovery not appropriate in the interests of the administration of justice – application in a case dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.324, 325, 566

Fair Work Regulations 2009 (Cth), reg 3.46

Federal Circuit Court of Australia Act 1999 (Cth), s.45

Federal Circuit Rules 2001 (Cth), r.14.02

Cases cited:

Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400

First Applicant: JOHN WARDMAN

Second Applicant MATTHEW BOASE

Third Applicant: NICHOLAS SANDFORD

Fourth Applicant: DAVID DALL

Fifth Applicant: ANDREW DAVIES

Sixth Applicant: ANTHONY DOYLE

Seventh Applicant: WILLIAM EDWARDS

Eighth Applicant: MURRAY HEWITT

Ninth Applicant: CHARLES KAPLAN

Tenth Applicant: MARK O'LEARY

Eleventh Applicant: JED RICHARDS

Twelfth Applicant: JASON BALL

Thirteenth Applicant: DAVID SCHMIDT

Fourteenth Applicant: DARRELL SEETO

Fifteenth Applicant: TIMOTHY COOPER

Respondent: MACQUARIE BANK ACN 008 583 542

File Number: SYG 1540 of 2018

Judgment of: Judge Street

Hearing date: 4 May 2020

Date of Last Submission: 4 May 2020

Delivered at: Sydney

Delivered on: 4 May 2020

REPRESENTATION

Counsel for the Applicant: Mr A Britt via Microsoft Teams

Solicitors for the Applicant: Williamsonbarwick

Counsel for the Respondent: Mr A Moses SC via Microsoft Teams
Mr B Rauf via Microsoft Teams

Solicitors for the Respondent: Kingston Reid

ORDERS

1. The application in a case filed on 12 September 2019 is dismissed.

DATE OF ORDER: 4 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1540 of 2018

JOHN WARDMAN

First Applicant

MATTHEW BOASE

Second Applicant

NICHOLAS SANDFORD

Third Applicant

DAVID DALL

Fourth Applicant

ANDREW DAVIES

Fifth Applicant

ANTHONY DOYLE

Sixth Applicant

WILLIAM EDWARDS

Seventh Applicant

MURRAY HEWITT

Eighth Applicant

CHARLES KAPLAN

Ninth Applicant

MARK O'LEARY

Tenth Applicant

JED RICHARDS

Eleventh Applicant

JASON BALL

Twelfth Applicant

DAVID SCHMIDT

Thirteenth Applicant

DARRELL SEETO

Fourteenth Applicant

TIMOTHY COOPER

Fifteenth Applicant

And

MACQUARIE BANK ACN 008 583 542

Respondent

REASONS FOR JUDGMENT

1. These are proceedings within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”). The proceedings are ones in respect of which there is a dispute that has arisen in respect of payments made to Level 6 employees under the Banking, Finance and Insurance Award 2010 (“the Award”). For the purpose of this application in a case, the Court has treated all the affidavits filed as being in evidence before the Court and both parties submissions referred to filed affidavit material.

2. The respondent adopted a process of paying moneys to its employees in accordance with a plan that it described as “Basic Cost Responsibility Plan”. That plan does not appear to constitute an agreement under cls 2.2 and 7 of the Award. Whether cl. 2.2 can have any application without an agreement under cl 7, whilst doubtful, is an issue the respondent has pleaded in respect of alleged over-award payments which the applicants received. There is no agreement pleaded under cl 7 of the Award which facilitates under the Award an agreement with the employee after the employee has commenced employment to vary application of certain and confined terms of the Award. The pleading of the alleged over-award payments appears to mean the variable commission payments above the respondent’s Basic Cost Responsibility formulated in the respondent’s plan.

3. It is not readily apparent that any proper attention was given by the respondent to the requirements of the Award and the potential agreements that can be made under the Award. The respondent had internal policies, modelling and reviews of its said plan alleged to involve consideration of the Award. The respondent is maintaining an entitlement to offset commissions or bonuses in respect of payments to the Level 6 employees that should have been made both under the Award and under the Act.

4. The flexible arrangement in relation to the Award is one that identified flexibility in respect of the requirements in terms of obligations imposed by the Award. It is also obvious that cl 2.2 of the Award has no application to the alleged contraventions of the Act concerning the Level 6 employees not involving the relevant Award.

5. The applicants contend that there may be other breaches in relation to ss 323, 324 and 325 of the Act and seeks a discovery declaration pursuant to s 45 of the Federal Circuit Court of Australia Act 1999 (Cth) and r 14.02 of the Federal Circuit Rules 2001 (Cth).

6. The applicant also relies on reg 3.46(2) of the Fair Work Regulations 2009 (Cth) in relation to payslips, which is as follows:

   (2)  If an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid.

7. The payslips are the subject of the affidavit evidence in respect of the lead employee in this case. The relevant payslips clearly identify only an appropriation or designation in relation to the bonus or commission. Whether the true character of those payments, in all the circumstances, including absence of an agreement under cl 7 of the Award, can justify use of those payments to set off different liabilities under the Award and the Act appears to be the real issue in the case, see Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400 at [113]. Nothing on the face of the payslips purports to appropriate or designate that commission payment to any other obligation or different liability that the respondent may have under the Act or the Award. The consequences of that is not a matter for the Court to determine today.

8. The Court does not accept that this is an appropriate matter in which discovery is required or that it is appropriate to make a declaration for discovery, which power in this Court is rarely used. Taking into account the competing submissions that have been filed and the references to the affidavit material that has been filed, it is apparent that it is open for the applicants to understand and, if desired, use the information concerning the alleged obligations and conduct of the respondent under the “Basic Cost Responsibility Plan”. As the Court has indicated, that plan is not something apparently drawn up based upon the agreements that can be made under Award and it is that plan of the respondent which the respondent has applied to the Level 6 employees.

9. The Court does not accept that it is necessary in the interests of the administration of justice in the circumstances of the present case to provide declarations and orders for discovery. Taking into account the issues pleaded and the affidavit material filed, as referred to above, the Court is of the view that the applicants are able to fairly and properly advance their cases in respect of any alleged contraventions and to meet the alleged defence of the same on the information that has already been filed and served.

10. The Court, for these reasons, dismisses the application in a case that was filed in these proceedings and which was intended also to have application, if successful, in proceedings SYG781/2019. As no separate application had been made in proceedings SYG781/2019, it is sufficient simply to make an order dismissing the application in a case in this proceeding dated 12 September 2019.

I certify that the preceding ten (10) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 20 May 2020