Fair Work Ombudsman v University of Melbourne

Fair Work Ombudsman v University of Melbourne - [2024] FCA 330 - FCA 2024 case summary — Zoe

[7]

Mr Slyfield 13 From at least 19 December 2015 the University employed Mr Andrew Slyfield within its Melbourne Graduate School of Education. Mr Slyfield was an employee within the meaning of ss 13, 335 and 342 item 1 of the Act. Mr Slyfield was covered by the 2013 Agreement and the 2018 Agreement. 14 From 18 January 2016 to 12 December 2020 Mr Slyfield was employed on a casual basis under 19 consecutive or overlapping contracts of employment as follows: Subject Name Contract Start Date Contract End Date Semester

Sports Coaching: Theory and Practice 18/01/2016 17/07/2016 Semester 1 EDUC10051 - CON0007032 2016
Sports Science & Coaching Applications 01/07/2016 31/12/2016 Semester 2 EDUC30070 - CON0022684 2016
Sports Coaching: Theory and Practice 18/07/2016 31/12/2016 Semester 2 EDUC10051 2016
Sports Coaching: Theory and Practice 20/01/2017 28/02/2017 Summer EDUC10051 - CON0033463 semester 2017
Sports Coaching: Theory and Practice 20/02/2017 30/06/2017 Semester 1 EDUC10051 - CON0036379 2017
Sports Coaching: Theory and Practice 01/07/2017 31/12/2017 Semester 2 EDUC10051 - CON0043694 2017
Sports Science & Coaching Applications 01/07/2017 31/12/2017 Semester 2 EDUC30070 - CON0043696 2017
Sports Coaching: Theory and Practice 20/01/2018 01/04/2018 Summer EDUC10051 - CON0060013 semester
Sports Coaching: Theory and Practice 10/02/2018 30/06/2018 Semester 1 EDUC10051 - CON0060051 2018
Sports Science & Coaching Applications 01/07/2018 30/11/2018 Semester 2 EDUC3070 - CON0074896 2018
Sports Coaching: Theory and Practice 01/07/2018 31/12/2018 Semester 2 EDUC10051 - CON0075044 2018
Sports Coaching: Theory and Practice 16/01/2019 30/03/2019 Summer EDUC10051 - CON0091633 semester 2019
Sports Coaching: Theory and Practice 15/02/2019 30/07/2019 Semester 1 EDUC10051 - CON0091646 2019
Sports Science & Coaching Applications 01/07/2019 30/12/2019 Semester 2 EDUC30070 - CON0110845 2019
Sports Coaching: Theory and Practice 01/07/2019 30/12/2019 Semester 2 EDUC10051 - CON0110953 2019
Sports Coaching: Theory and Practice 10/01/2020 31/03/2020 Summer EDUC10051 - CON0123311 semester 2020
Sports Coaching: Theory and Practice 10/02/2020 05/07/2020 Semester 1 EDUC10051 - CON0123313 2020
Sports Science & Coaching Applications 03/08/2020 12/12/2020 Semester 2 EDUC30070 - CON0141308 2020
Sports Coaching: Theory and Practice 03/08/2020 12/12/2020 Semester 2 EDUC10051 - CON0141518 2020

[9]

Ms Tsongas 18 From 20 January 2017 to 30 March 2021 the University employed Ms Renee Tsongas in its MGSE. Ms Tsongas was an employee within the meaning of ss 13, 335 and 342 item 1 of the Act. Ms Tsongas was covered by the 2013 Agreement and the 2018 Agreement. 19 From 20 January 2017 to 30 March 2021, Ms Tsongas was employed on a casual basis under 19 consecutive or overlapping contracts of employment as follows: Subject Name Contract Start Date Contract End Date Semester

Sports Coaching: Theory and Practice 20/01/2017 28/02/2017 Summer EDUC10051 - CON0033446 semester 2017
Sports Coaching: Theory and Practice 01/07/2017 31/12/2017 Semester 2 EDUC10051 - CON0043744 2017
Sports Coaching: Theory and Practice 20/01/2018 01/04/2018 Summer EDUC10051 - CON0060017 semester 2018
Sports Coaching: Theory and Practice 10/02/2018 30/06/2018 Semester 1 EDUC10051 - CON0060053 2018
Sport, Leadership & the Community 01/07/2018 31/12/2018 Semester 2 EDUC30073 - CON0077214 2018
Sports Coaching: Theory and Practice 01/07/2018 31/12/2018 Semester 2 EDUC10051 - CON0075043 2018
Sports Coaching: Theory and Practice 16/01/2019 30/03/2019 Summer EDUC10051 - CON0091639 semester 2019
Sports Coaching: Theory and Practice 15/02/2019 30/07/2019 Semester 1 EDUC10051 - CON0091648 2019
Sports Coaching: Theory and Practice 01/07/2019 30/12/2019 Semester 2 EDUC10051 - CON0110958 2019
Sport, Education & the Media 01/07/2019 30/12/2019 Semester 2 EDUC20068 - CON0110868 2019
Sport, Leadership & the Community 01/07/2019 30/12/2019 Semester 2 EDUC30073 - CON0110865 2019
Sports Science & Coaching Applications 01/07/2019 30/12/2019 Semester 2 EDUC30070 - CON0110843 2019
Sports Coaching: Theory and Practice 10/01/2020 31/03/2020 Summer EDUC10051 - CON0123310 semester 2020
Sports Coaching: Theory and Practice 20/02/2020 20/07/2020 Semester 1 EDUC10051 - CON0124120 2020
Sport, Education & the Media 20/02/2020 20/07/2020 Semester 1 EDUC20068 - CON0124118 2020
Sport, Leadership & the Community 13/07/2020 30/09/2020 Winter EDUC30073 - CON0140956 semester 2020
Sports Science & Coaching Applications 03/08/2020 12/12/2020 Semester 2 EDUC30070 - CON0141927 2020
Sport, Education & the Media 03/08/2020 12/12/2020 Semester 2 EDUC20068 - CON0141312 2020
Sports Coaching: Theory and Practice 12/01/2021 30/03/2021 Summer EDUC10051 - CON0149436 semester 2021

[16]

A 'positive finding' versus the operation of the reverse onus 31 In its written submissions the University contends that whilst the SOAF provides a "factual basis for the conclusion, by operation of the reverse onus not being discharged, that the University … took the adverse action … the SOAF does not provide a basis to infer a positive finding that the Supervisor … was actuated by the proscribed reasoning" (the University's submissions dated 20 October 2023 at [35], original emphasis). 32 Mr Dalton KC for the University made clear in oral submissions that that submission is "not raised in mitigation", but rather it is to guard against "the notion of any aggravating features" (Transcript page 11 lines 9-13). 33 The Ombudsman submits that, by operation of s 361 and the reverse onus, there is a basis to make positive findings that the University engaged in the adverse action for the proscribed reasons. The Ombudsman seeks those positive findings (Transcript page 3 lines 38-44). 34 As is clear from its terms, s 361 operates in such a way that where it is alleged that a person took action for a particular reason, it is presumed that the action was taken for that reason unless the person proves otherwise. On the evidence contained in the SOAF I find, where the Supervisor has not proved otherwise, that the Supervisor made the threat for the reason that Mr Slyfield and Ms Tsongas had made the complaint. 35 In Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 4) [2012] FCA 894; (2012) 225 IR 113, Katzmann J said at [21]: I fail to see how the mode of proof has anything to do with the gravity of the contraventions. In this respect I would adopt the applicants' submissions. Section 361 is a procedural provision. It facilitates proof of facts which (generally speaking) only the alleged wrongdoer knows. The fact that I found that the respondent had not rebutted the presumption does not detract from or diminish the importance of the conclusions that the Act had been contravened. 36 In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 3) [2018] FCA 1395, Wigney J said at [49]: The action taken by De Martin & Gasparini was taken because the workers had those workplace rights, or had exercised them. The fact that the finding that De Martin & Gasparini took the action for that reason, or with that intent, was the outcome of the presumption in s 361 of the Fair Work Act, as opposed to a positive finding, does not lessen the seriousness of the contravention. The fact remains that De Martin & Gasparini was unable to prove that the action was not taken for that reason, mainly because the evidence of their senior officers was found to be unreliable and to lack credibility. 37 Consistent with Katzmann J in Pilbara and Wigney J in De Martin, the method of proof here does not lessen, or indeed worsen, the seriousness of the contravention.

[23]

Principles on assessing penalties 55 There was no dispute about the principles to be applied in assessing penalties. The relevant principles can be summarised as follows: (a) Section 546 confers a discretion that is to be exercised judicially, that is, fairly and reasonably having regard to the subject matter, scope and purpose of the legislation (see Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599 at [40] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ)). (b) Civil penalties are imposed primarily, if not solely, for the purpose of deterrence (see Pattinson at [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ)). That is, the purpose of the penalty is to promote the public interest in compliance and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravener and by others who are in a position to contravene legislation (Agreed Penalties Case at [55]). (c) A penalty is appropriate if it is no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by the contravener and others (Pattinson at [9]). (d) Whilst the imposition of the penalty is at large, there should be some "reasonable relationship between the theoretical maximum and the final penalty imposed" (Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [156]). The reasonable relationship should be considered by reference to the need for deterrence (Pattinson at [55]). (e) Whilst the Court's task is to determine what is an appropriate penalty, the authorities have identified several factors which inform the assessment of a penalty of appropriate deterrent value. However, despite the attraction of such a list of factors, it should not be approached as a rigid catalogue or checklist (Pattinson at [18]-[19], citing French J in Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR 41-076 at [42]).

[24]

Course of conduct 56 The University has admitted three contraventions of s 340(1)(a)(ii) of the Act. One against each of Mr Slyfield and Ms Tsongas on 7 August 2020. And one against Ms Tsongas on 9 February 2021. Whilst s 557 of the Act (dealing with course of conduct) does not apply to those contraventions of s 340, the parties agree that the common law course of conduct principle applies. They say it applies to the contraventions on 7 August 2020. 57 In Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417, the Full Court reviewed the authorities concerning how a court might address course of conduct. At [15] they stated: As Lord Diplock said in Director of Public Prosecutions v Merriman [1973] AC 584 at 607; [1972] 3 All ER 42 at 59, "[w]here a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise", they should be regarded as one activity or one offence. 58 At [17] the Full Court in Williams extracted from the judgment of Owens JA in Royer v Western Australia [2009] WASCA 139 including: [22] … At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. 59 In Williams the Full Court determined that the contravening conduct arose out of a course of conduct and imposed penalties for two contraventions by reference to the maximum penalty for one. 60 In Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1, the Full Court made clear that a court is not compelled to utilise the course of conduct principle, and relevantly stated at [42]: …even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved. 61 Here, the threat to Mr Slyfield and Ms Tsongas was made on the same day (7 August 2020), at the same meeting, and as one statement directed to both casual employees. The Supervisor's unlawful reason for making that threat was the same in respect of both Mr Slyfield and Ms Tsongas. 62 I will approach the imposition of penalties in respect of the threat on 7 August 2020 by characterising that contravening conduct as arising from a course of conduct.

[39]

DECLARATORY RELIEF 82 The parties agreed declarations in substantially the same form as those declarations I have made. Those agreed declarations formed part of the SOAF. The University described the declarations as part of the "overall package" agreed to by it (Transcript page 21 line 40). 83 The Ombudsman is a regulator. Pursuant to s 682(1) of the Act the Ombudsman's functions include promoting, monitoring and investigating compliance with the Act. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68; (Dowsett, Greenwood and Wigney JJ) the Court stated at [93]: Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court's disapproval of the contravening conduct, vindicate the regulator's claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] ATPR 42-140 at [6], and the cases there cited; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [95]. 84 The Ombudsman submits, and I accept, that each of those matters applies here: the agreed declarations record the Court's disapproval, vindicate the Ombudsman's claim, assist the regulator to carry out their duty (including the functions under the Act) and deter others from engaging in similar conduct. The Ombudsman further emphasised the need for a "clear declaratory message to the regulated public as to what constitutes a contravention" (Transcript page 8 lines 38-40). Whilst I acknowledge that declarations should be made with the "utmost caution" and only where there is utility in doing so (see: Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 at [77]-[78]), I accept that in the circumstances of this case the agreed declarations are appropriate.

At a glance

Court

Decision date

Before

Source

Judgment (40 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (16)