Australian Education Union v Yooralla

2. The appeal be allowed in part.
3. The orders of the Federal Circuit Court of Australia dated 26 September 2018 (given on 27 September 2018) at Melbourne by his Honour Judge Wilson in the proceeding MLG1391 of 2016 be set aside.
4. Pursuant to s 545(2) of the FW Act, the Respondent, within 28 days of the Court's orders, pay Ms Legg $11,758.50.
5. Pursuant to s 547(2) of the FW Act, the Respondent pay $2,087.65 penalty interest to Ms Legg on the amount in Order 4 within 28 days of the Court's orders.
6. Pursuant to s 545(2) of the FW Act, the Respondent make superannuation contributions on behalf of Ms Legg to her nominated superannuation fund in respect of the ordinary time earnings component of the payment in Order 4 ($1,117.06) within 28 days of the Court's orders at the superannuation guarantee charge rate prescribed by applicable superannuation legislation at the time the payments are made.
7. The matter is remitted to the Federal Circuit Court for hearing on the issue of penalty. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

STEWARD J: 1 On 17 September 2019, I delivered my reasons in this matter: Australian Education Union v Yooralla [2019] FCA 1511. I ordered that the parties were to file orders giving effect to my reasons by agreement or, failing that, to file submissions concerning that issue. Both parties had a measure of success before me. They could not, however, agree entirely on the form of final relief. In what follows I have applied the terminology used in my earlier reasons. 2 The form of relief originally sought in the Federal Circuit Court was in the following terms: The Applicant seeks: Declarations that the Respondent contravened the following civil remedy previsions: (a) section 304 of the Fair Work Act 2009 (Cth) (the "FW Act") by failing to pay Ms Legg the minimum hourly rates for ordinary hours worked in contravention of clause 5.5 of the Equal Remuneration Order; (b) section 304 of the FW Act by falling to pay Ms Legg the minimum hourly rates for public holiday hours in contravention of clause 5.5 of the Equal Remuneration Order; (c) section 44 of the FW Act by failing to pay Ms Legg the minimum hourly rates for annual leave taken in contravention of section 90(1) of the FW Act; (d) section 45 of the FW Act by falling to pay Ms Legg the minimum hourly rates for annual leave loading in contravention of clause 31.3(a) of the Modern Award; (e) section 44 of the FW Act by failing to pay Ms Legg the minimum hourly rates for personal leave taken in contravention of section 99 of the FW Act; (f) section 345 of the FW Act by knowingly or recklessly making a false or misleading representation about the workplace rights of Ms Legg; (g) section 45 of the FW Act by failing to advise Ms Legg of her classification under the Modern Award on commencement of her employment in contravention of clause13.2 of the Modern Award; … An order pursuant to section 545(2) of the FW Act that the Respondent, within 28 days of the Court's orders, pay Ms Legg $26,924.18. An order pursuant to section 547(2) of the FW Act that the Respondent pay penalty interest to Ms Legg, on the amount above. Orders pursuant to section 545(2) of the FW Act that the Respondent make superannuation contributions on behalf of Ms Legg to her nominated superannuation fund in respect of the ordinary time earnings component of any payments made pursuant to the Order at paragraph [set out] above at the superannuation guarantee charge rate prescribed by applicable superannuation legislation: (a) at the time the payments are made; (b) as at the date the payments are made for subsequently rectified underpayments. Orders pursuant to section 546(1) of the FW Act imposing pecuniary penalties on the Respondent for the contraventions set out in [certain paragraphs of the statement of claim]. An order pursuant to section 546(3)(a) of the FW Act requiring the Respondent to pay any penalty amounts to the Applicant. An order that the Applicant have liberty to apply on seven days' notice in the event that any of the preceding orders are not complied with. 3 In my reasons of 17 September 2019, I decided that Ms Legg's salary was to be fixed in accordance with the Disability Award and then as a "Level 2" employee under the Modern Award. The parties were in agreement that as a consequence Ms Legg had been underpaid in the sum of $11,758.50 and that she should be awarded penalty interest of $2,087.65. They further agreed that Yooralla was required to make a superannuation contribution of $1,117.06 (although the AEU wanted this payment to be made first to Ms Legg; in my view that is not appropriate). The parties were also agreed that there had been contraventions of ss 44, 45 and 305 of the Fair Work Act 2009 (Cth). I will make orders to that effect. 4 This left the issue of penalties. The AEU wanted me to make orders for the filing of evidence and submissions concerning that matter and then to list this proceeding for a penalty hearing on an estimate of half a day. Yooralla submitted that this issue should be remitted to the Federal Circuit Court for adjudication. 5 I agree with Yooralla's proposed course. This proceeding is an appeal from the Federal Circuit Court. Whilst an appellate Court can, in certain cases, receive new evidence, make findings of fact and make consequential orders, it ordinarily does not do so: see CDJ v VAJ (1998) 197 CLR 172 at 200-203 [104]-[116] per McHugh, Gummow and Callinan JJ; August v Federal Commissioner of Taxation [2013] FCAFC 85; (2013) 94 ATR 376 at [116]-[119]; Shannon v Commonwealth Bank of Australia (2014) 318 ALR 420 at 447-448 [127] per Flick and Perry JJ. In my view the issue of penalty is not so sufficiently narrow and discrete as to justify this Court undertaking the function - effectively - of a trial Court. It is by no means clear to me that the evidence that might be led by the parties would be brief. As the AEU very properly conceded, "Yooralla may wish to lead evidence of any contrition, rectification and steps which it has taken to identify and remedy the likely wrong classification of other instructors". In those circumstances, it is more appropriate to remit the matter back to the Federal Circuit Court for determination. 6 Accordingly, I will make the following declarations and orders: (1) The Respondent contravened the following civil remedy provisions: (a) section 305 of the Fair Work Act 2009 (Cth) (the "FW Act") by failing to pay Erin Legg the minimum hourly rates for ordinary hours worked in contravention of clause 5.5 of the Equal Remuneration Order; (b) section 44 of the FW Act by failing to pay Ms Legg the minimum hourly rates for annual leave taken in contravention of s 90(1) of the FW Act; (c) section 45 of the FW Act by failing to pay Ms Legg the minimum hourly rates for annual leave loading in contravention of clause 31.3(a) of the Social, Community, Home Care and Disability Services Award 2010; (d) section 44 of the FW Act by failing to pay Ms Legg the minimum hourly rates for personal leave taken in contravention of s 99 of the FW Act. (2) The appeal be allowed in part. (3) The orders of the Federal Circuit Court of Australia dated 26 September 2018 (given on 27 September 2018) at Melbourne by his Honour Judge Wilson in the proceeding MLG1391 of 2016 be set aside. (4) Pursuant to s 545(2) of the FW Act, the Respondent, within 28 days of the Court's orders, pay Ms Legg $11,758.50. (5) Pursuant to s 547(2) of the FW Act, the Respondent pay $2,087.65 penalty interest to Ms Legg on the amount in Order 4 within 28 days of the Court's orders. (6) Pursuant to s 545(2) of the FW Act, the Respondent make superannuation contributions on behalf of Ms Legg to her nominated superannuation fund in respect of the ordinary time earnings component of the payment in Order 4 ($1,117.06) within 28 days of the Court's orders at the superannuation guarantee charge rate prescribed by applicable superannuation legislation at the time the payments are made. (7) The matter is remitted to the Federal Circuit Court for hearing on the issue of penalty. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.