Yu v ACT Education Directorate
[2024] FedCFamC2G 29
•19 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yu v ACT Education Directorate [2024] FedCFamC2G 29
File number(s): CAG 86 of 2016 Judgment of: JUDGE CAMERON Date of judgment: 19 January 2024 Catchwords: INDUSTRIAL LAW – application for compensation consequent upon contraventions of an enterprise agreement
INDUSTRIAL LAW – application for penalties consequent upon contraventions of an enterprise agreement
Legislation: Fair Work Act 2009 (Cth) ss 50, 539, 545, 557 Cases cited: Yu v ACT Education Directorate (No 2) [2021] FedCFamC2G 267
Yu v ACT Education Directorate [2022] FCAFC 110
Dafallah v Fair Work Commission (2014) 225 FCR 559
Leggett v Hawkesbury Race Club Ltd (No 4) (2022) 293 FCR 608
James Cook University v Ridd (2020) 278 FCR 566
Gray v Motor Accident Commission (1998) 196 CLR 1
Cheng v Farjudi (2016) 93 NSWLR 95
ASP15 v Commonwealth (2016) 248 FCR 372
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2018) 264 FCR 155
Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450
Division: Fair Work Number of paragraphs: 43 Date of hearing: 12 – 13 December 2023 Place: Heard in Canberra, delivered in Sydney (via videolink) Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms P. Bindon Solicitor for the Respondent: ACT Government Solicitor ORDERS
CAG 86 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JING YU
Applicant
AND: ACT EDUCATION DIRECTORATE
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
19 JANUARY 2024
THE COURT ORDERS THAT:
1.The respondent pay penalties totalling $10,500 to the applicant.
2.The proceeding be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant, Ms Yu, commenced this matter on 18 November 2016. She alleged that her former employer, the respondent ACT Education Directorate (Directorate), had contravened the Fair Work Act 2009 (Cth) (FW Act) in connection both with her dismissal on 17 August 2016 and with other conduct which she said had been coercive in nature. More relevantly, she also alleged that the Directorate had contravened the applicable enterprise agreement, the ACT Public Sector Education and Training Directorate (Teaching Staff) Enterprise Agreement 2014-2018 (EA), by not appointing her to fill certain vacant teaching positions in the period prior to her dismissal. The first of those was a position at Hawker High School and the second was at Canberra High School (CHS).
The application was dismissed by Judge W J Neville on 18 November 2021: Yu v ACT Education Directorate (No 2) [2021] FedCFamC2G 267 (Primary Judgment), but on 30 June 2022 the Full Court of the Federal Court allowed an appeal in relation to the allegations that the Directorate had contravened the EA: Yu v ACT Education Directorate [2022] FCAFC 110. The Full Court remitted that aspect of the matter for the determination of appropriate remedies.
BACKGROUND
Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement and ss.539 and 545 provide respectively that contravention of an enterprise agreement may ground orders for pecuniary penalties and compensation.
The Federal Court held that the Directorate had contravened cls.A2.2, R2.9 and R3.10 of the EA. It said in relation to those clauses:
81Clause A2.2 of the EA provides:
A2.2 In order to promote permanent employment and job security for employees, the ACTPS will endeavour to minimise the use of temporary and casual employment. The ACTPS agrees to the use of temporary employees only where there is no officer available with the expertise, skills or qualifications required for the duties to be performed or the assistance of a temporary nature is required for the performance of urgent or specialised work within a particular business unit of the ACTPS and it is not practical in the circumstances to use the services of an existing officer.
82Ms Yu alleges the Directorate breached this clause by removing her from Hawker College and filling her position with a temporary staff member. Ms Yu deposed to her position at Hawker College having been filled by a casual maths teacher ‘who was on a temporary working visa’. Nothing in the Directorate’s evidence before the primary judge disputes this allegation.
83Ms Yu also contends the Directorate breached cl R2.9 by failing to meet its obligation under that clause in 2015/2016, and cl R3.10 by advertising a Mandarin teaching position on the Jobs ACT website when the position ought first to have been offered to her.
84 Clause R2.9 provides:
R2.9 The head of service has the right and obligation to place permanent teachers in suitable positions, as required. This requirement takes precedence over any other method of filling vacancies.
85Clause R3.10 provides:
R3.10 There will be an annual classroom teacher transfer process. Teachers identified for transfer will be considered for placement through the annual process. Vacancies unable to be filled through transfer or central placement will go to open advertisement in accordance with subclause R4.1.
86Ms Yu’s allegations in relation to cll A2.2 and R2.9 were articulated and particularised in her Amended Application in 2017. … the allegation relating to cl R3.10 was first made on 13 March 2018 and reiterated in her Outline of Submissions filed on 6 January 2021. Although the Directorate objected to the inclusion of the claim relating to cl R3.10 without leave to amend having been granted, the Directorate could not have been taken by surprise given the foundation of the allegation in relation to cll A2.2 and R2.9 is the same that underpins the alleged breach of cl R3.10 – namely, that she was a permanent employee who should have been placed in or offered a permanent position before any position for which she was qualified was given to a temporary or casual employee or was advertised externally. ...
87… there was no dispute before the primary judge that by January 2016 when she was moved to CHS, Ms Yu had become a supernumerary teacher. Nevertheless, she remained employed by the Directorate at Experienced Teacher 2 level.
88Ms Yu confirmed in her oral evidence that she did not apply for any permanent positions for the 2016 teaching year and that she did not see the advertisement for the position at CHS in Jobs ACT. In her written submissions, Ms Yu contended that the Directorate breached cl R2.9 by failing to place her, being a permanent teacher, into a suitable position before filling the vacancy at CHS through external advertisement.
89Similarly, Ms Yu alleged that she had been identified for transfer and so ought to have been transferred to CHS before the position went to open advertisement. It is clear from the Directorate’s evidence before the primary judge that there had been no consideration of Ms Yu for the vacant position as a teacher of Mandarin at CHS as required by cll R2.9 and R3.10 – rather it seems to have been expected that she should have applied for the position through the open advertisement process. In its written submissions, the Directorate contended that the onus lay on Ms Yu to nominate a reasonable range of schools (cl R3.13) but submitted that Ms Yu had in fact been placed in accordance with cl R2.9. The Directorate’s written submissions did not address the alleged breach of cl R3.10 despite the nature of that breach being inextricably linked with the alleged breach of cll A2.2 and R2.9.
90In oral submissions, the Directorate suggested, in accordance with cl R3.13, the onus was on Ms Yu to nominate herself for a reasonable range of positions to enable a transfer. There was no evidence that Ms Yu had been made aware of any suitable positions for which she might seek a transfer. When read alongside cl R3.10, the Directorate contended the clause allowed for open advertisement as another mechanism for filling positions and that the clause should be construed as “vacancies not filled” by central placement or transfer rather than “unable to be filled”. The Directorate’s argument cannot be sustained. Clause R2.9 imposes on the “head of service” an obligation to identify and place permanent teachers in suitable positions. If that obligation cannot be fulfilled, viz, the vacancy is “unable” to be filled through transfer or central placement, only then does the vacancy “go to open advertisement in accordance with subclause R4.1”.
91The primary judge ought to have found that the Directorate contravened cll A2.2, R2.9 and R3.10 of the EA and so contravened s 50 of the FWA.
(some references omitted)
It must be inferred from those paragraphs, in particular [86], [87] and [91], that the Federal Court found that at the relevant times Ms Yu had been:
… a permanent employee who should have been placed in or offered a permanent position before any position for which she was qualified was given to a temporary or casual employee or was advertised externally.
In its written submissions, the Directorate addressed the Federal Court’s reasons for decision concerning those issues as follows:
The effect of the Full Court’s construction of clause A2.2 appears to be that the Directorate was not permitted to use a temporary officer … to fill the maths position at Hawker College and had to use a permanent teacher for that position.
The Directorate’s contravention therefore lay in not moving the Applicant into the maths position to teach the full time maths load alongside the Mandarin class for 2014 once her position had been determined as surplus to needs.
…
The effect of the Full Court’s construction of clauses R2.9 and R3.10 is that when a permanent teaching position becomes available at a school, the Directorate is required to offer the position first to any permanent officers who are on a temporary system placement (i.e. who are a ‘supernumerary’) and who may be suitable for the position. Only once that step has been undertaken (and, presumably, none of those permanent officers wish to take on the position) can the Directorate go ahead and advertise the vacancy.
The Directorate’s contravention therefore lay in advertising the vacancy for the Mandarin teaching position at Canberra High School without having first offered the position to the Applicant.
I agree with that analysis as far as it relates to the role at CHS. However, the Federal Court’s finding in relation to the situation at Hawker College should be understood to be that after Ms Yu was removed from her position as teacher of Mandarin, the new position that involved the teaching of Mandarin was assumed by a temporary teacher rather than being filled by, or at least offered to, Ms Yu, a permanent teacher.
RELIEF SOUGHT
In her amended originating application filed 3 April 2017, Ms Yu sought the following relief:
(a)compensation for past and future economic loss: income, superannuation, long service leave and annual leave loading;
(b)general damages: suffering and damage of reputation; and
(c)pecuniary penalty orders against the Directorate.
As recorded by Judge W J Neville in the Primary Judgment at [152], Ms Yu had also argued that she should be awarded aggravated and exemplary damages, she saying in her written submissions to his Honour:
Aggravated damages
23. Aggravated damages should be awarded to the Applicant who suffers increased distress as a result of the unfair treatment by the Respondent and its legal team in the course of the proceedings.
24. The detriment occasioned to the Applicant by the Respondent and its legal team in the course of the proceeding was also serious. It had subjected the Applicant to additional harm, distress and suffering. Thus, the Applicant contends that the Respondent to pay the aggravated damages. The sum of $180,000 is reasonable to compensate for such consequences.
Exemplary damages:
25. Evidence shows that the Respondent and its legal team have been knowingly misusing its public resource; e.g., misleading the Court, dragging out the proceedings, avoiding to pay the legitimate claim, and disregarded the applicant’s rights and safety.
26. The Applicant contends that the exemplary damages should be awarded to mark the court's disapproval of the conduct of the Respondent and its legal team in the course of the proceeding and to deter the Respondent and others, from acting in a similar way in the future.
THE PROCEEDING ON REMITTAL
Applicant’s evidence
Following the remittal, Ms Yu filed an affidavit sworn on 5 July 2023 in which she deposed to her work history with the Directorate.
Ms Yu deposed that at the time she left Hawker College at the end of 2013, her teaching load had been 60% Mandarin classes, with classes such as General Mathematics and Study Support taking the remainder of her time. Ms Yu said that she had felt helpless and angry at losing her position at Hawker College and at, in her perception, being replaced by a casual maths teacher less qualified than herself. She was subsequently transferred to Mawson Primary School, where she was not required to teach and where she was worried and became sick and unfit for work for three weeks. Ms Yu deposed that she also became anxious, depressed, had difficulty eating or sleeping, felt constant pain, lost self-esteem and enjoyment, and experienced depressive symptoms.
Ms Yu was placed at Telopea Park School in January 2015 to do some relief teaching. She said that she found it difficult to cope when the management asked her to visit classes to learn from other teachers or to perform the duties of a teacher's aide and how that led to her feeling anxious and to withdrawing. Later, when allowed to do some relief teaching, she felt better.
Ms Yu deposed to her transfer to CHS in January 2016 and, in general terms, to the events that led to her dismissal. She also referred to the psychological consequences her dismissal had for her and to the subsequent course of the litigation of which these reasons are part.
Ms Yu also referred to a medico-legal report of a Dr Hanna that had been obtained by the Commonwealth Superannuation Corporation in 2019 in relation to an application she had made to that body. She quoted part of it but, in addresses, also said that she wished to rely on her affidavit of 29 June 2020 that was filed in the earlier stage of this proceeding. A copy of Dr Hanna’s report was annexed to that affidavit as was a medico-legal report of a Dr Chambers. Both doctors were psychiatrists, Dr Hanna providing an initial report and Dr Chambers providing a subsequent report addressing the question whether Ms Yu’s mental health entitled her to certain benefits under the “PSS Rules”.
Respondent’s Evidence
The Directorate relied on the affidavit of its Manager, HR People Services, Katrina Sheaves, affirmed 10 March 2023. Ms Sheaves deposed that Hawker College experienced a significant contraction in enrolments in 2013 because of the opening of Gungahlin College and had had to adjust its staffing levels, with priority being given to retaining staff who could teach multiple subjects. Ms Sheaves stated that at Hawker College Ms Yu had worked a full-time Mandarin teaching load which the school could not support in 2014, and so she was informed in 2013 that her position was to be abolished.
Ms Sheaves said that to offer a wide selection of classes despite a reduced number of students, in 2014 Hawker College timetabled a combined beginner, intermediate and advanced Mandarin class for 2014, which was covered by a temporary teacher who had been selected to fill one of the two maths positions. Ms Sheaves deposed that that teacher had not filled Ms Yu’s role, because it had been abolished, but had rather been engaged, on a temporary basis, as a maths teacher who also “picked up one line of Mandarin”.
Following the advice that her position at Hawker College was to be abolished, Ms Yu applied in the 2013 transfer round for roles elsewhere in the school system for the 2014 school year but was unsuccessful. Ms Sheaves deposed that late in 2013 she negotiated with the principal of Mawson Primary to place Ms Yu in their Mandarin immersion program in order to maintain her skills pending a permanent placement.
Ms Sheaves gave evidence regarding CHS as follows:
(a)no Mandarin teaching positions at CHS for 2016 were advertised in the 2015 annual transfer round but one was advertised on the ACT Government Jobs website in December 2015 after a teacher decided to take a period of extended leave;
(b)Ms Wei Zhang, who was a permanent teacher and had been in the process of transferring from CHS to Gungahlin College, applied for the advertised position and was successful;
(c)Ms Yu had been unsuccessful in the 2015 transfer round for the 2016 school year and Ms Sheaves placed her at CHS, having been assured by the school’s principal that there would be sufficient work for both Ms Zhang and Ms Yu.
Annexed to Ms Sheaves’s affidavit was a printout of Ms Yu’s salary payments from July 2005 to May 2018, which records that Ms Yu was paid her salary, without apparent deduction relevant to this proceeding, from before January 2013 up to her dismissal in August 2016.
CONSIDERATION
Compensation
Compensation may not be ordered unless a person has contravened, or proposes to contravene, a civil remedy provision. As that criterion has been satisfied in this case, compensation may be awarded if the Court “considers [that to be] appropriate”.
As to the existence of a compensable loss, in Dafallah v Fair Work Commission (2014) 225 FCR 559 Mortimer J said at 596 [158]:
While by no means operating as a mandatory approach to a discretion such as that conferred by s 545(1), with respect I adopt the remarks of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 63 IR 1 considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth). His Honour said (at 9), that the Court will:
have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened … The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
Her Honour went on to observe at 597 [164] that the burden remained on the applicant to prove their loss.
To similar effect, in Leggett v Hawkesbury Race Club Ltd (No 4) (2022) 293 FCR 608, Rares J said:
The expressions used in s 545(2)(b) “compensation” and “loss that a person has suffered” are not defined in the Fair Work Act. But the provision creates a causal link that the loss for which compensation may be awarded must arise “because of the contravention” of that Act. …
…
Any award under s 545(2)(b) is not made at common law. Rather, it is a form of statutory compensation for loss in supplementation of the more general power in s 545(1) to make “any order the court considers appropriate” if satisfied that a person has contravened a civil remedy provision. And, the relevant causal nexus between the entitlement to an order for compensation is that the person suffered the loss “because of the contravention”.
…
[The applicant’s] loss, to which the compensation payable under s 545(2)(b) applies, is to be measured by comparing her position as it is against what it would have been but for the Club’s contravention of the Fair Work Act. (at [31], [51] and [56])
Ms Yu adduced no evidence to show that she had been underpaid her entitlements at any point relevant to the contraventions found by the Federal Court to have occurred. Based on the annexure to Ms Sheaves’s affidavit of 10 March 2023, I am satisfied that Ms Yu was fully paid her entitlements during the relevant period and that no compensation for loss of earnings is appropriate.
The admissible evidence does not support a conclusion that Ms Yu suffered psychiatric impairment by reason of the Directorate’s contraventions of the EA and of s.50 of the FW Act. Neither of the medico-legal reports was proved by its apparent author and both referred to documents that were not in evidence and for those reasons those reports ought not be taken into account. In any event, the reports did not identify in what, if any, way the condition Ms Yu was diagnosed to have been suffering was caused by the Directorate’s contraventions of the EA. That being so, quite apart from questions as to their admissibility, ostensibly the reports would be of no real assistance in the consideration of Ms Yu’s claim for compensation.
In relation to compensation in the nature of general damages, the authorities make it clear that compensation of that sort can be awarded under s.545(1) of the FW Act: James Cook University v Ridd (2020) 278 FCR 566 at 599 [155]–[157] and the cases cited there. Reference has been made to the distress that Ms Yu says she suffered during 2014, 2015 and 2016, which I accept occurred. However, I am not persuaded that that distress was “suffered because of the contravention(s)”, as required by s.545(2) of the FW Act.
In relation to the events at Hawker College, Ms Yu did say in her affidavit of 5 July 2017 that:
In January 2014, Ms Katrina Sheaves rang me and said: "Jing, we don't have a Chinese teaching position available at this moment. You need to go to Mawson Primary for the time being 'til a job comes up." I was shocked and said to her: "If there is no position for me, then I should go back to Hawker College." She said: "No, you can't, someone already filled your position." I was very upset and was unfit for work for more than three weeks (From 29 January 2014 to 21 February 2014).
She also said that she had felt “helpless and angry”.
Significantly, the evidence indicates that Ms Yu’s position at Hawker College had been at least predominantly as a Mandarin teacher, whereas the position that was filled by the temporary teacher was as mathematics teacher with “one line of Mandarin”, as Ms Sheaves put it. Ms Yu did not argue that she was qualified for and would have accepted such a role, had it been offered. Moreover, her evidence indicates a failure to appreciate that the two roles had different emphases, one being Mandarin and the other mathematics, as I find to have been the case.
The evidence overall, particularly Ms Yu’s affidavit of 5 July 2023, indicates that practically all of Ms Yu’s distress was caused by events at Mawson Primary School, Telopea Park School and CHS following her placements there and as a result of events during those placements, rather than by the Directorate’s contraventions of the EA and the FW Act. The extent to which those contraventions may have caused emotional or psychological distress meriting compensation was not identified, although I do acknowledge that Ms Yu took three weeks’ leave in early 2014, ostensibly as a result of being asked to go to Mawson Public School.
But, in any event, Ms Yu’s evidence indicates a failure by her to grasp that the role that was abolished at Hawker College was not the same as the one that was created and filled by the temporary teacher. Distress consequent upon that misunderstanding is not a matter for which the Directorate is responsible. That is particularly so in circumstances where Ms Yu did not indicate how she would have responded had she appreciated that the roles were different and whether she could and would have been willing to be a mathematics teacher who also taught “one line of Mandarin”.
In relation to the failure to appoint her to the vacant position at CHS, Ms Yu pointed to no evidence suggestive of compensable emotional or psychological distress.
I am not persuaded that Ms Yu has made out a case for compensation consequent upon the contraventions of the EA and of the FW Act that the Federal Court has identified.
Aggravated and exemplary damages
Ms Yu’s claims for aggravated and exemplary damages based on the Directorate’s conduct of its defence present and potentially engage a number of contestable or contested issues without dealing with them adequately in argument, such as the availability of damages in a proceeding such as this one; the nature and limits of the compensation available under the FW Act; and the possible intersecting relevance to those questions of Ms Yu’s prayer for costs and her further prayer for pecuniary penalties: see Gray v Motor Accident Commission (1998) 196 CLR 1 at 14-15 [46] and Cheng v Farjudi (2016) 93 NSWLR 95 at [110]-[111].
It is not the Court’s role to determine those possible issues in the absence of substantive and clear submissions on them or to rule on potential arguments that have not been made: cfASP15 v Commonwealth (2016) 248 FCR 372 at 384 [50]. Ms Yu has failed to make out her claims for aggravated and exemplary damages.
Penalties
Purpose of penalties
The purpose of civil penalties of the sort available under the FW Act is deterrence, not compensation: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at 195 [116]; Dafallah v Fair Work Commission (2014) 225 FCR 559 at 593 [140]. In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2018) 264 FCR 155, the Full Court of the Federal Court said:
It is unnecessary to engage in any extended discussion of principle. Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty — to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act: French J in Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 at 52,152, cited by the plurality in Commonwealth v Director of the Fair Work Building Industry Inspectorate (Civil Penalties Case) [2015] HCA 46; (2015) 258 CLR 482 at [55]. ... (at 167 [19])
When determining the appropriate penalty to impose, regard should be had to all of the circumstances of the case, guided by the various discretionary considerations discussed in authorities such as Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at 460-461 [18]-[19], in order to arrive at a single result that is an instinctive synthesis of those various factors.
Parties’ submissions
In a document filed on 20 April 2018, Ms Yu submitted, relevantly in relation to the contraventions that have since been found to have occurred, that penalties of the sort referred to below ought to be imposed:
s50 - contravened cl A2.2 and cl Hl.2 of the Enterprise Agreement by using temporary employees to teach Mandarin during December 2013 to 2016 - multiple contraventions.
80%-90%
$43,200 - $48,600
s50- contravened cl R3.10 and cl Hl.2 of the Enterprise Agreement by advertising a Mandarin teaching position at Jobs ACT in December 2015.
70%-80%
$37,800 - $43,200
Ms Yu’s written and oral submissions did not advance the issue. She submitted that:
… breaching cl R2.9 and cl R3.10 of the EA are separate contraventions. Breaching cl R2.9 was ongoing and systematic, lasting for 2 years and 8 months in Ms Yu’s case and at system level, for more than 10 years affecting many teachers, while breach of cl R 3.10 of EA was not ongoing. In addition, there were different people involved in those breaches. Breaching cl R2.9 of the EA involves Ms Crook, Ms Sheaves, director of HR People and Performance, Director-General or delegate while breaching cl R3.10 involves Mr Beecher and Ms Sheaves.
The Directorate submitted that the contraventions of cls.R2.9 and R.3.10 of the EA were different parts of a particular course of conduct and so should attract only one penalty at most, in accordance with s.557 of the FW Act which relevantly provides:
557 Course of conduct
(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
The Directorate continued:
77.As is clear from the evidence of Katrina Sheaves … it is evident that the way in which the Directorate had managed the Applicant in the face of her position at Hawker College becoming surplus to requirements was based on its understanding of what was permissible under the Enterprise Agreement. In short, the Directorate had not considered that clause A2.2 required it to move the Applicant into the maths positions (or at least offer it to her) once her position at Hawker College became surplus to requirements in order for her to keep teaching the reduced Mandarin load required for 2014.
78. Similarly, as explained at [25]-[26] above, the Directorate’s breach of clauses R2.9 and R3.10 lay in advertising the vacancy for the permanent Mandarin teaching position at Canberra High School without having first offered that position to the Applicant.
79. As with clause A2.2, it is clear from the evidence of Katrina Sheaves noted at [14]-[15] above … that the way in which the Directorate had managed the vacancy for the Mandarin position at Canberra High School was based on its understanding of what was permissible under the Enterprise Agreement. …
…
81. Having regard to the terms of clauses A2.2, R2.9 and R3.10 and accepting that the Directorate’s construction of those clauses was erroneous, it must be acknowledged nonetheless that the construction was arguable and the breaches cannot be characterised as demonstrating a flagrant or wilful disregard for the Enterprise Agreement.
82. As such, the Directorate submits that the legislative purpose of deterrence is not furthered by the imposition of any penalty in respect of the contraventions in this case.
The Directorate also argued that it had done its best to support Ms Yu in the vicissitudes of her career, albeit it had misunderstood how the EA required it to go about filling vacancies.
Discussion
I accept that the Directorate did not intend to contravene the EA and there is no evidence that it had contravened it previously. I have regard to the fact that, notwithstanding that she was without a particular teaching position, because she remained employed by the Directorate Ms Yu did not suffer a reduction in her remuneration as a result of the contraventions. I have also found that the contraventions have not been shown to have caused psychological injury and were not, themselves, the cause of any compensable emotional or psychological distress suffered by Ms Yu. There is no reason to suspect that the Directorate will repeat the contraventions or that it has any desire to do otherwise than to observe its industrial obligations. I conclude that the need for specific deterrence is negligible, but that nonetheless the need for deterrence more widely is necessary to demonstrate that even well-intentioned public sector bodies will be penalised if they fail in their obligations.
I accept that the contraventions of cls.R.2.9 and R.3.10 should be considered to be a single course of conduct arsing out of the decision-making process that led to the failure to appoint Ms Yu to the position at CHS.
I consider that the breach of cl.A2.2 should attract a penalty of $5,100 and that the breaches of cls.R.2.9 and R.3.10 should attract a penalty of $5,400, each representing 10% of the maximum penalty applicable at the relevant time. I am satisfied that the total penalty of $10,500 is reasonable in the circumstances. It should be paid to Ms Yu.
CONCLUSION
The Directorate is to pay penalties totalling $10,500 to Ms Yu but otherwise the proceeding will be dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 19 January 2024
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