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[2024] FCA 330
Federal Court of Australia
2024-04-05
Dowling J
Original judgment source is linked above.
INTRODUCTION 1 The applicant, the Fair Work Ombudsman, alleges that the respondent, the University of Melbourne, took adverse action against two of its casual academic employees because they exercised workplace rights; namely, they made complaints or inquiries in relation to their employment. The University admits the allegations. 2 The Ombudsman is a Fair Work Inspector under the Fair Work Act 2009 (Cth) and has standing to bring these proceedings. The University is an employer within the meaning of ss 14(1)(a), 335 and 342(1) item 1 of the Act. 3 The parties rely upon a Statement of Agreed Facts. The SOAF contains facts that the parties have agreed are not, for the purposes of this proceeding, to be disputed. By s 191(2) of the Evidence Act 1995 (Cth), evidence is not required to prove those agreed facts. The parties disagree on the significance to be given to some of the agreed facts. 4 The parties agree that penalties should be imposed upon the University and that declarations should be made. The parties have agreed on the amount of those penalties and the form of the declarations. It is for the Court to determine whether the contraventions are made out, whether the agreed penalties are appropriate penalties in the circumstances, and whether it is appropriate to make the declarations sought. 5 For the reasons that follow, I am satisfied that it is appropriate to impose two penalties upon the University, both in the sum of $37,295.00, and make declarations recording the contravening conduct.
The statutory framework 6 Section 340 of the Act relevantly provides that a "person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right …". 7 Section 341(1) of the Act relevantly provides that a person has a "workplace right" if the person "… (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment". 8 Section 361 of the Act provides as follows: 361 Reason for action to be presumed unless proved otherwise (1) If (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 9 The effect of ss 539(1) and 539(2) item 11, is that s 340 of the Act is a "civil remedy provision". Section 545(1) of the Act provides that the Court "may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision". Such orders include the making of binding declarations of right: see Federal Court of Australia Act 1976 (Cth) s 21. 10 Section 546(1) of the Act provides that the Court may "order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision".
The University, the employees, the employment contracts and the Supervisor
The University 11 The University is a body corporate by operation of ss 4(2) and 6(1) of the University of Melbourne Act 2009 (Vic). It is able to be sued in its corporate name by reason of s 6(1)(b) of that Act. 12 The University was, during the period of the relevant conduct, covered by two enterprise agreements made under the Act. The University of Melbourne Enterprise Agreement 2013, from 20 February 2014 to 26 March 2019 (the 2013 Agreement), and the University of Melbourne Enterprise Agreement 2018 since 27 March 2019 (the 2018 Agreement). Those agreements provide that casual academic employees are entitled to be paid for hours of work in accordance with the rates set out: see the 2013 Agreement at Part C4, cl 29-34 and Schedule 1 and the 2018 Agreement at cl 2.8.
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
15 Under those contracts Mr Slyfield was employed to perform academic teaching duties including: (a) the delivery and preparation of tutorials; (b) the delivery and preparation of lectures (pursuant to some but not all of the contracts); (c) marking; and (d) the provision of Casual Academic Support, a term defined at 13(b)(iv) of the SOAF in relation to Ms Tsongas as including attendance at meetings, administration, staff induction, training and development and student consultation (other than student consultation that was reasonably contemporaneous with the delivery of a lecture or tutorial). 16 Together with his employment under those contracts Mr Slyfield was also employed in the MGSE as a casual Physical Education Technician. 17 Each of Mr Slyfield's contracts with a start date from 1 July 2019 specified the total number of "anticipated hours" for work for each of the academic teaching duties and "estimated casual hours of work required" being the sum of the anticipated hours for each of the academic teaching duties. The "estimated casual hours of work required" were identified as indicative only and subject to change at the University's discretion. Those contracts also specified obligations upon Mr Slyfield to complete time and attendance records (timecards) in order for payments to be processed, and an obligation to submit those timecards fortnightly with respect to work completed in the previous 14 days.
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
20 Under those contracts Ms Tsongas was employed to perform academic teaching duties including: (a) the delivery and preparation of tutorials which, under clause 2.8.4.3 of the 2018 Agreement, were paid based on a "derived rate" such that each hour of tutorial delivery included compensation for up to two hours of "associated working time"; (b) the delivery and preparation of lectures pursuant to some but not all of Ms Tsongas' contracts of employment listed above at [19], which were also paid based on a "derived rate", including compensation for up to four hours of "associated working time", depending on the type of lecture; (c) marking; and (d) the provision of Casual Academic Support. 21 Together with her employment under the contracts set out above Ms Tsongas was also employed by the University as a casual Exam Supervisor. 22 Each of Ms Tsongas' contracts with a start date from 1 July 2019 specified the total number of "anticipated hours" for work for each of the academic teaching duties and "estimated casual hours of work required" being the sum of the anticipated hours for each of the academic teaching duties. The "estimated casual hours of work required" were identified as indicative only and subject to change at the University's discretion. Those contracts also specified obligations upon Ms Tsongas to complete timecards in order for payments to be processed, and an obligation to submit those timecards fortnightly with respect to work completed in the previous 14 days.
The Supervisor 23 During the relevant events, the University employed a person identified in the SOAF as the Supervisor. The Supervisor was: (a) a lecturer, tutor, and subject co-ordinator in the MGSE; (b) a person responsible for approving, or deciding not to offer, offers and contracts of employment to employees of the University (including Mr Slyfield and Ms Tsongas) who performed work in the MGSE in subjects for which the Supervisor was the subject co-ordinator; (c) a person responsible for supervising employees of the University (including Mr Slyfield and Ms Tsongas) who performed work in the MGSE in subjects for which the Supervisor was the subject co-ordinator; (d) authorised by the University to direct employees under the Supervisor's supervision (including Mr Slyfield and Ms Tsongas) in the course of their duties, including directing them to attend meetings from time to time; and (e) a person responsible for approving timecards for payment to casual employees (including Mr Slyfield and Ms Tsongas) for work performed in the MGSE in subjects for which the Supervisor was the subject co-ordinator. 24 Mr Slyfield was subject to the supervision of the Supervisor during each of his contracts identified at [14] above, save for the contracts identified in rows 1-5 of that table. Ms Tsongas was subject to the supervision of the Supervisor during each of her contracts identified above at [19], save for the contract identified in row 1 of that table.
The 7 August Meeting between Mr Slyfield, Ms Tsongas and the Supervisor 25 On 7 August 2020, Mr Slyfield and Ms Tsongas attended a video meeting with the Supervisor (the 7 August Meeting). The SOAF establishes that: (a) the purpose of the 7 August Meeting was a regular catch up between the Supervisor and Mr Slyfield and Ms Tsongas, during which the attendees would discuss any course developments, changes to course content, any support that the Supervisor should provide and any other administrative matters; and (b) the subject matter of the 7 August Meeting also included resolving the uncertainty or confusion around Ms Tsongas' contracts for her engagements, following various inquiries that Ms Tsongas had made to the Supervisor about her failure to provide contracts for upcoming engagements. 26 During the 7 August Meeting, amongst other matters, Mr Slyfield and Ms Tsongas complained that they were required to perform more hours of work than were provided for in the anticipated hours in their contracts. Following that complaint, the Supervisor said words to the effect of "if you claim outside your contracted hours don't expect work next year". That statement is said to constitute the adverse action against Mr Slyfield and Ms Tsongas on 7 August 2020. Although those words appear clear on their face, the SOAF also contains an agreed fact that the effect of those words is that, if Mr Slyfield or Ms Tsongas "sought payment for hours in excess of the number of anticipated hours provided for in their contracts that they should not expect work with the University the following year".
Any history of like complaints 27 There was an apparent issue between the parties about whether there was a history of complaints made by Mr Slyfield and Ms Tsongas, or other casual academic staff, about their ability to complete work within the anticipated hours. Relevantly, the Ombudsman submits that the Supervisor did not escalate the complaint of Mr Slyfield and Ms Tsongas in the 7 August Meeting or engage with them about that complaint. The University in its written submissions, made under the heading "Workload concerns were new, despite the Employees' substantial experience" (original italics, emphasis added), submits that that alleged failure to engage with the complaint does not suggest any ongoing issue or history of complaints. Ultimately, both parties submitted, and I accept, that the only evidence before the Court is that contained in the SOAF which is the complaint in the 7 August Meeting and one earlier occasion, in June 2020, where an additional 5.5 hours was sought and approved for Mr Slyfield and Ms Tsongas. I do not make any findings that there was otherwise a history of such complaints, or that the "concerns were new".
The nature of the complaint by Mr Slyfield and Ms Tsongas 28 The University submits that the complaint made by Mr Slyfield and Ms Tsongas was not a specific request for payment, nor was it a request for approval in advance. Rather, the University submits that it was a generalised grievance. Insofar as those submissions are made to support a submission that the circumstances are less serious, I do not accept that proposition. The parties agree, and the evidence contained in the SOAF establishes, that the complaint was relevantly a complaint as defined by s 341(1)(c)(ii) of the Act. Its general nature does not, in the circumstances of this case, undermine the seriousness of the conduct.
The nature of the threat by the Supervisor 29 The University accepts that the threat made by the Supervisor at the 7 August Meeting was a threat for the purposes of the Act. However, it submits that there is "no evidence … that the threat was issued to coerce or suborn the employees into not making a claim for payment for additional hours over anticipated hours if they happened to work those hours" (Transcript page 14 lines 33-36). It submits that it is open to conclude that the threat was issued because of the Supervisor's view that the work should be done within allocated hours. The Ombudsman submits, and I accept, that the threat is qualitatively different to saying that the work should be able to be done within the anticipated hours. The words were "if you claim outside your contracted hours, don't expect work next year". The threat is directed at a 'claim' about hours, rather than the ability to complete work within anticipated hours. Both Mr Slyfield and Ms Tsongas were entitled to make a claim without the threat of adverse action. 30 The University admits that the threat by the Supervisor in the 7 August Meeting, was a threat to alter the position of Mr Slyfield and Ms Tsongas to their prejudice within the meaning of s 342(1) item 1(c) of the Act. The University admits that the threat prejudiced Mr Slyfield and Ms Tsongas' expectations or prospects of continuing work in the MGSE (see SOAF at [73]).
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.
The conduct on and surrounding 9 February 2021 38 On 8 February 2021, Ms Tsongas submitted a timecard to the Supervisor for the period 23 January 2021 to 5 February 2021 (the 8 February Timecard). In the 8 February Timecard Ms Tsongas claimed payment for 17 hours of Casual Academic Support and 24 tutorials. The 17 hours claimed was 5 hours more than the 12 hours of Casual Academic Support included in the "anticipated hours" of Ms Tsongas' contracts. 39 On 8 February 2021 at 3:29pm the Supervisor sent an email to Mr Goldstraw, the Teaching Services Manager in the MGSE, enclosing Ms Tsongas' 8 February Timecard. On or around the same day the Supervisor spoke to Mr Goldstraw and Mr Quay, the Supervisor's supervisor and the Associate Dean, Teaching and Learning in the MGSE, about Ms Tsongas' 8 February Timecard. Mr Quay recommended that the Supervisor inform Professor Clinton, the Deputy Dean of the MGSE, about the 8 February Timecard. 40 Later again the same day, on 8 February 2021, the Supervisor emailed a number of tutors including Ms Tsongas directing the recipients to amend and re-submit their timecards. That email stated, "your letter of offer which each of you accepted outlines what you are paid for per contract". The email also extracted the anticipated hours detailed in certain contracts. 41 At or around 8:15pm on 8 February 2021, the Supervisor rejected the 8 February Timecard. 42 Ms Tsongas resubmitted the timecard on 22 February 2021 claiming for 12 hours of Casual Academic Support and 24 tutorials. The Supervisor approved the amended timecard on that day.
The 9 February decision to not re-employ Ms Tsongas 43 On 9 February 2021, the Supervisor sent Professor Clinton an email which: (a) forwarded to Professor Clinton the Supervisor's email to Ms Tsongas stating that she had rejected the 8 February Timecard and asked for it to be resubmitted; (b) stated that the Supervisor employed Ms Tsongas "out of desperation"; (c) stated that Ms Tsongas was on a "crusade behind the scenes"; and (d) stated that "needless to say" the Supervisor would not be employing Ms Tsongas again. 44 On or around 9 February 2021, the Supervisor decided not to offer Ms Tsongas any further employment in the MGSE. 45 On 14 February 2021, the Supervisor sent another casual academic employee within the MGSE an email in which the Supervisor stated that: (a) she was trialling some "newbies" plus using the current Physical Education staff where available; (b) she had "eased [Mr Slyfield] out into a full-time tech role thanks to Covid"; (c) she was not re-employing Ms Tsongas; and (d) Ms Tsongas had become a "self-entitled Y-genner". 46 Immediately thereafter the University did not offer Ms Tsongas any further employment for academic teaching duties within the MGSE. The University did continue to engage Ms Tsongas as a casual Exam Supervisor. The decision on 9 February 2021 to refuse to re-employ Ms Tsongas is said by the Ombudsman to constitute the adverse action against Ms Tsongas on 9 February 2021.
The reason for the Supervisor's decision not to re-employ Ms Tsongas 47 By the SOAF the University admits that the Supervisor's decision not to re-employ Ms Tsongas was: (a) because Ms Tsongas made a complaint or inquiry in relation to her employment by submitting the 8 February Timecard; and (b) because the Supervisor had concluded that her working relationship with Ms Tsongas was dysfunctional and that she had lost the necessary trust and confidence in Ms Tsongas. 48 The University emphasises the reason described above in [47(b)]. It submits that the reason described above in [47(a)] "establishes liability but it is not evidence supporting a positive finding that the Supervisor (and University) was actuated by the proscribed reason". The Ombudsman submits: (a) that the Court can be satisfied that the University contravened s 340(a)(ii) by reason of its admission; (b) consistent with Katzmann J in Pilbara above, that the ultimate method of proof of liability does not lessen the seriousness of the contraventions (Transcript page 5 lines 34-35); and (c) that the events are serious even if the decision not to re-employ Ms Tsongas was also for another lawful reason together with the unlawful reason. 49 I accept those submissions of the Ombudsman. They are consistent with the scheme of the Act, consistent with the evidence before me, and consistent with the approach of Katzmann J in Pilbara and Wigney J in De Martin.
Conclusions on contravening conduct 50 Based on the matters set out above and the evidence contained in the SOAF I am satisfied that: (a) the complaint made by Mr Slyfield and Ms Tsongas in the 7 August Meeting was a complaint or inquiry within the meaning of s 341(1)(c)(ii) of the Act; (b) the ability to make that complaint or inquiry was a workplace right within the meaning of s 341 of the Act; (c) the threat of the Supervisor in the 7 August Meeting constituted adverse action within the meaning of s 342(1) item 1(c) of the Act; namely, it was a threat to alter the position of each of Mr Slyfield and Ms Tsongas to their prejudice; (d) the threat prejudiced Mr Slyfield's and Ms Tsongas' expectations or prospects of continuing work in the MGSE; (e) the Supervisor took the adverse action because Mr Slyfield and Ms Tsongas exercised a workplace right; and (f) the conduct of the Supervisor is the conduct of the University as provided for by s 793 of the Act; and (g) the University has accordingly contravened s 340(1)(a)(ii) of the Act. 51 Based on the matters set out above and the evidence contained in the SOAF I am satisfied that: (a) the complaint or inquiry made by Ms Tsongas by submitting the 8 February Timecard on 8 February 2021 was a complaint or inquiry within the meaning of s 341(1)(c)(ii) of the Act; (b) the ability to make that complaint or inquiry was a workplace right within the meaning of s 341 of the Act; (c) the conduct of the Supervisor in refusing to re-employ Ms Tsongas in the MGSE constituted adverse action within the meaning of the s 342(1) item 2(a) of the Act; (d) the Supervisor took the adverse action because Ms Tsongas exercised a workplace right; and (e) the conduct of the Supervisor is the conduct of the University as provided for by s 793 of the Act; and (f) the University has accordingly contravened s 340(1)(a)(ii) of the Act.
The statutory framework 52 As set out above, s 340 of the Act is a "civil remedy provision". Once the Court is satisfied that a person has contravened a civil remedy provision it may: (a) make any orders it considers appropriate, including binding declarations of right (see ss 539(1) and 539(2) item 11 of the Act and s 21 of the Federal Court of Australia Act 1976 (Cth)); and (b) order a person to pay a pecuniary penalty that it considers appropriate (see s 546(1) of the Act). 53 At the time of the contravening conduct a Commonwealth penalty unit was defined to mean the amount of $222.00, consequently the maximum penalty for the University for each contravention is $66,600.00 (see s Crimes Act 1914 (Cth) ss 4AA(1) and (3), and ss 539(1) item 11 and 546(2) of the Act).
Principles on agreed penalties 54 The parties agree on the applicable principles where penalties are agreed and submitted to the Court by the parties. The principles can be summarised as follows: (a) There is an important public policy involved in promoting predictability of outcome in civil penalty proceedings. The practice of receiving and, where appropriate, accepting agreed penalties increases the predictability of outcomes for regulators and wrongdoers (see Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (the Agreed Penalties Case) at [46] (French CJ, Kiefel, Bell, Nettle and Gordon JJ, Keane J agreeing)). (b) Subject to the Court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate penalty, it is highly desirable for the Court to accept the parties' proposal and impose the agreed penalty (see Agreed Penalties Case at [58] (French CJ, Kiefel, Bell, Nettle and Gordon JJ, Keane J agreeing)). (c) The Court is more than a rubber stamp, and it must be satisfied that the proposed penalty is an appropriate one in all the circumstances (see Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; 407 ALR 302 at [111], citing with approval Agreed Penalties Case at [58] per French CJ, Kiefel, Bell, Nettle and Gordon JJ). (d) If the agreed penalty is within a permissible range, where it cannot necessarily be said to be more appropriate than another, the Court should not depart from the agreed penalty merely because it might have been disposed to select some other figure (see Agreed Penalties Case at [47] (French CJ, Kiefel, Bell, Nettle and Gordon JJ, Keane J agreeing)).
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]).
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.
Nature and circumstances of the contravening conduct
The conduct on and surrounding 7 August 2020 63 Under the 2013 Agreement and 2018 Agreement Mr Slyfield and Ms Tsongas were entitled to be paid for the work performed by them as casual academics. They were entitled to complain or inquire about their ability to perform their work within the "anticipated hours" contained in their contracts of employment. Those complaints should have been free of consequence. That is especially so where both Mr Slyfield and Ms Tsongas were casual academic employees dependant on the University for the renewal of their employment. It is perhaps telling that after the events of August 2020, both Mr Slyfield and Ms Tsongas did not make any claims for additional hours in that semester. The threat, that if they claimed additional hours they would not receive future work, was a serious contravention of the Act. The penalty must be sufficient to deter any repetition by the University or any other person in a position to contravene the Act.
The conduct on and surrounding 9 February 2021 64 Under the 2013 Agreement and 2018 Agreement Ms Tsongas was entitled to be paid for her work as a casual academic. She was entitled to submit her timecards and entitled to raise with her supervisor the hours she worked, and her expectations for payment for those hours. Again, that is especially so where Ms Tsongas was a casual academic employee dependant on the Supervisor for the approval of her timecards and for the approval of her ongoing employment with the University. The conduct, in refusing to re-employ Ms Tsongas was a serious contravention of the Act. The penalty must be sufficient to deter any repetition by the University or any other person in a position to contravene the Act. 65 I accept, in respect of the conduct on 7 August 2020 and 9 February 2021, that the contravening conduct here was confined to the MGSE, and further confined to the conduct between the Supervisor and Mr Slyfield and Ms Tsongas.
Specific deterrence 66 The evidence establishes that the University is a large and well-resourced contravener. In both 2021 and 2022 it had an annual operating income of $2.7 billion. In 2021 it had a net result of $584 million and an operating result of $147 million. In 2022 it had a net result of -$203 million and an operating result of -$104 million, in part due to investment losses totalling $279 million. 67 In Pattinson, Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ concluded at [60] that it was "simply undeniable that, all other things being equal, a greater financial incentive will be necessary to persuade a well-resourced contravener to abide by the law …". 68 The table below, relied upon by the Ombudsman and made up of evidence from the SOAF, demonstrates that the University does employ, and has in recent years employed, a significant percentage of casual employees and an even greater percentage of fixed-term employees. Those employees are not ongoing academics and are dependent on the University for the renewal of their casual or fixed-term contracts of employment. They are vulnerable to the type of contravening conduct engaged in by the University in this matter. It is important that the penalty is sufficient to deter the University from any repetition of the contravening conduct. Full time equivalent casual/fixed term employees as percentage of total full time equivalent employees Academic Cohort May 2020 May 2021 May 2022 May 2023 Fixed term 44.16% 39.10% 37.35% 42.03% Casual 18.88% 17.88% 20.46% 12.55% Totals 63.04% 56.99% 57.81% 54.58%
69 Insofar as the corrective action and the previous contraventions of the University are relevant to specific deterrence they are dealt with below.
General deterrence 70 The evidence establishes that the higher education sector employs large numbers of casual and fixed term employees. In the sector, between 2010 and October 2021, the number of casual and fixed term employees increased by 89%, whilst the number of permanent employees increased by 49%. As at October 2021, casual and fixed term employees accounted for 66% of all persons working in higher education. 71 Those employees are not ongoing academics and are dependent on their employer for the renewal of their casual or fixed-term contracts of employment. The penalty must be sufficient to deter other Universities, or those in a like position, from similar contravening conduct.
Corrective action 72 Since 2021 the University has introduced compliance changes to its casual, and other, employees. Those changes include: (a) the introduction of 13 new Casual Compliance Manager roles to oversee and support the management of employees; (b) the establishment of an "HR Assist" phone line as an avenue for staff to raise pay and human resource issues other than with their direct supervisors; (c) enhanced education, training and guidance for casual employees and supervisors, including on seeking approval for additional time worked; (d) a range of improvements to timecard verification, approval and compliance; and (e) the commencement of a strategic program of work to redesign the University's model and reduce the University's levels of casual employment. 73 The Ombudsman acknowledges those improvements. Although there was no direct evidence of the effect of those changes, I accept they reduce the need for specific deterrence. However, the penalty must still ensure that the University continues appropriate oversight and compliance.
Previous contraventions 74 The parties directed my attention to only one other relevant contravention by the University. In that matter the University was found to have contravened s 340(1) of the Act by issuing a written warning to an employee employed in the School of Biomedical Sciences, Faculty of Medicine. The offending conduct occurred on 6 January 2020 and the contravention was declared on 1 December 2022 (see Pilbrow v The University of Melbourne [2022] FedCFamC2G 1001). I find, as accepted by the Ombudsman, that the University does not have a compliance history that heightens the need for specific deterrence.
Loss and impact of the contraventions 75 The University accepts that both Mr Slyfield and Ms Tsongas suffered non-economic loss (see SOAF at [103]). There was no evidence that either employee suffered economic loss. There was no evidence, or submission, that the University enjoyed any gain, or expected to enjoy any gain, from the contravening conduct. The University paid compensation to Mr Slyfield for his non-economic loss in the amount of $4,000.00. The University paid compensation to Ms Tsongas for her non-economic loss in the amount of $10,000.00. There was no evidence or submissions as to how those amounts were calculated but I accept that those payments mitigate the non-economic loss suffered by Mr Slyfield and Ms Tsongas.
Size and financial capacity of the University 76 For the reasons set out above, the size and financial capacity of the University is relevant to the question of specific deterrence.
Involvement of senior management 77 The contravening conduct attributable to the University was engaged in by the Supervisor only. Both parties accept that the Supervisor was not a senior manager within the University (SOAF at [98]).
Contrition 78 In its oral submissions the University apologised for the contraventions and acknowledged the impact on Mr Slyfield and Ms Tsongas. It acknowledged the need for it to improve. There was no evidence, and the University was not able to tell me, whether the University apologised directly to Mr Slyfield and Ms Tsongas. However, I accept that the payments made by the University to Mr Slyfield and Ms Tsongas represent some demonstration of contrition directed to Mr Slyfield and Ms Tsongas.
Co-operation 79 The University admitted the contraventions of the Act at a relatively early stage of the proceedings without the need for the parties to prepare for the full hearing of the matter. Further, the University agreed the SOAF avoiding the need for a contested hearing on whether the contraventions were made out. In Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383, at [76], Stone and Buchanan JJ stated: … a discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice. 80 I am satisfied, on the evidence before me, that the University has expressed credible regret and has facilitated the course of justice.
Disposition on penalties 81 In all the circumstances, I have determined to impose the agreed penalties totalling $37,295.00 for the contraventions on 7 August 2020 and the agreed penalties totalling $37,295.00 for the contravention on 9 February 2021. I am satisfied that those penalties: (a) are appropriate in all the circumstances; (b) are proportionate to the contravening conduct; (c) have a reasonable relationship to the theoretical maximum penalties available; (d) are, as agreed by the parties, within a permissible range; and (e) are sufficient to deter the University, and others, from similar conduct.
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.
CONCLUSION 85 In all the circumstances, I am satisfied that it is appropriate to impose two penalties, both in the sum of $37,295.00, upon the University and make declarations recording the contravening conduct. The penalties are to be paid within 28 days. Section 570(1) of the Act restricts the Court in awarding costs. No costs order was sought or will be made. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.
Fair Work Ombudsman
University of Melbourne
[1990] FCA 521
[2009] WASCA 139
(2022) 399 ALR 599
(2012) 225 IR 113
(2003) 216 CLR 53