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[2012] FCA 1095
Federal Court of Australia
2012-09-27
Bromberg J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant, the Health Services Union ("HSU") is a registered organisation of employees pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). The HSU is eligible to represent persons who perform the work of and are classified as medical scientists undertaking work in the public and private pathology sector and represents members employed as medical scientists in the private pathology sector. 2 The first respondent, Specialist Diagnostic Services Pty Ltd ("SDS") trades as Dorevitch Pathology for the purposes of providing pathology services in Victoria, apart from Gippsland where it trades as Gippsland Pathology. Dorevitch Pathology has provided pathology services in Victoria since approximately 1970. SDS operated and continues to operate pathology laboratories at, amongst other places, 18 Banksia Street, Heidelberg ("the Heidelberg laboratory"). 3 On 1 February 2010, SDS entered into a business sale and purchase agreement with Kanina Banner Pty Ltd trading as PathLab ("PathLab") to purchase the PathLab pathology business. The PathLab pathology business was located at 68 Burwood Highway, Burwood ("the Burwood laboratory"). 4 The second respondent, Jenny Fraumano is an industrial relations consultant who SDS engaged and who thereby became involved in the facts and circumstances raised by this application. 5 In this proceeding, the HSU seeks the making of a declaration and an order for the imposition of a penalty for a contravention of item 2 of Sch 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("the Transitional Act"), together with an order that any penalty imposed be paid to the HSU pursuant to s 546 of the Fair Work Act 2009 (Cth) ("the FW Act"). The HSU seeks leave of the Court with the consent of both respondents, to discontinue the proceeding against the second respondent and as such, does not pursue the claims made against her. 6 The HSU and SDS have now agreed on certain facts relevant to the claims made by the HSU. On the basis of those facts, SDS has made admissions regarding a breach of cl 33(g) and cl 35.2 of the Mayne Health Dorevitch Pathology Certified Agreement 2004 ("the Agreement"). The admitted breaches relate to a failure by SDS to provide information and consult with the HSU and a number of employees about decisions made by SDS to terminate the employment of some 31 employees at the Heidelberg and Burwood laboratories. The HSU and SDS have agreed on the quantum of the penalty which they submit is appropriate for the Court to impose in relation to the contraventions. 7 The facts agreed by the HSU and SDS and the admissions made by SDS are (subject to some modifications recorded on the transcript of today's hearing) contained in a Statement of Agreed Facts and Contraventions dated 26 September 2012 ("Statement of Agreed Facts"). The Statement of Agreed Facts (without its annexures) is attached to these reasons. 8 Whilst the consent of the parties is a consideration of some importance, as the agreed submissions of the parties recognise, the question of relief remains in the discretion of the Court. The penalty that the Court should impose requires serious and careful consideration. By reference to the agreed facts and having examined each of the relevant considerations to which I will shortly refer, I am satisfied that the proposed penalty of $12,000 is an appropriate penalty and that the other relief proposed by the parties should also be granted. 9 I will now turn to explain why I have reached that conclusion. 10 On the basis of the agreed facts and the admissions made in the Statement of Agreed Facts, I am satisfied that: 1. In relation to employees at the Burwood laboratory, SDS: (a) in breach of cl 33(g) of the Agreement, did not provide to any of the 27 effective full time medical scientists employed at the Burwood laboratory information in writing about the nature of the change proposed and the expected effects of the changes on those employees; (b) in breach of cl 33(g) and cl 35.2 of the Agreement, did not discuss with the 27 effective full time medical scientists the significant change affecting each of them, namely, the termination of their employment by reason of redundancy and; (c) in breach of cl 33(g) and cl 35.2 of the Agreement, did not discuss with the HSU the significant change affecting each of the 27 effective full time medical scientists, namely, the termination of each of their employment by reason of redundancy. 2. In relation to employees at the Heidelberg laboratory, SDS: (a) in breach of cl 33(g) of the Agreement, did not provide Voula Patrikios ("Patrikios"), Brendan Hamblin ("Hamblin"), Lenda Hena ("Hena") and Chrystalla Englezou-Masouras ("Engelzou-Masouras") with information in writing about the nature of the change proposed and the expected effect of those changes on each employee; (b) in breach of cl 33(g) and cl 35.2 of the Agreement, did not discuss with Patrikios, Hamblin, Hena and Englezou-Masouras a significant change affecting each of them, namely, the termination of their employment by reason of redundancy; (c) in breach of cl 33(g) and cl 35.2 of the Agreement, did not provide the HSU with information in writing that delineated between the proposed changes affecting medical scientists at the Burwood laboratory and Heidelberg laboratory; and (d) in breach of cl 33(g) and cl 35.2 of the Agreement, did not consult with the HSU in relation to the significant change affecting each of its members, Patrikios, Hamblin, Hena and Englezou-Masouras, namely the termination of their employment by reason of redundancy. 11 The Agreement which SDS has admitted breaching, is an agreement based transitional instrument which continues in existence pursuant to item 2 of Sch 3, of the Transitional Act. Item 2(2) of Sch 16 of the Transitional Act provides that a person must not contravene a term of an agreement based transitional instrument that applies to the person. Item 2(2) of Sch 16 is a civil remedy provision pursuant to item 16 of Sch 16 of the Transitional Act and Part 4(1) of the FW Act. 12 The maximum penalty for a contravention of a civil remedy provision of the kind which SDS has admitted a contravention of is $33,000. SDS has admitted to two contraventions of item 2 of Sch 16 of the Transitional Act in relation to the conduct which I have described. It is arguable that by its conduct SDS has committed more than two contraventions, however, s 557 of the FW Act provides that where a number of contraventions arose out of a single course of conduct, those contraventions shall be taken to constitute a single contravention. I am satisfied that the conduct of SDS in breach of the Agreement arose out of a single course of conduct. For that reason and on the basis of the agreed facts and the admissions made, I am satisfied that SDS has committed a single contravention of item 2 of Sch 16 of the Transitional Act. 13 The relevant principles for determining an appropriate penalty in the context of an agreed penalty being proposed by the parties are well known and need not here be repeated. I recently summarised the relevant principles in Helal v Brookfield Multiplex Ltd [2012] FCA 653 at paragraphs [14] to [18]. 14 I regard the contravention in this case as being at the minor end of the scale. Whilst consultation provisions in industrial agreements are important and should be fully observed, SDS did engage in some consultation, though it failed to do so in the terms required by the agreement. Further, there is no evidence before me of any adverse effect upon the relevant employees or the HSU leading to loss or damage resulting from SDS's contravention. I also take into account the fact that SDS has made admissions and thus avoided the cost and time involved in a full hearing. SDS is entitled to be credited for its co-operation. Lastly, I take into account that SDS has been in operation for over 40 years and has never before been prosecuted for a breach of an industrial instrument or a breach of an Act dealing with industrial relations. 15 The imposition of a penalty is a discretionary exercise involving the synthesis of relevant factors in order to arrive at a conclusion as to where the contravener's conduct sits on a scale of wrongdoing set by reference to the maximum penalty which could be imposed. Taking that approach to the question of whether the proposed penalty is appropriate in the context of the relevant principles and the considerations which I have identified, I have concluded that it is. I regard the proposed penalty as neither manifestly inadequate nor manifestly excessive. Consistently with the minutes of proposed consent orders, the Court will make the following orders: 1. The proceeding against the Second Respondent be discontinued with no order as to costs. 2. The First Respondent pay a pecuniary penalty of $12,000. 3. In accordance with s 546 of the Fair Work Act 2009 (Cth), the First Respondent pay the pecuniary penalty to the Applicant on or before 11 October 2012. 4. The proceeding be otherwise dismissed. 5. There be no order as to costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.
STATEMENT OF AGREED FACTS AND CONTRAVENTIONS BETWEEN THE APPLICANT AND THE FIRST RESPONDENT
Preliminary Matters
Industrial instruments 3. At the relevant time the HSU and SDS were parties bound by the Mayne Health Dorevitch Pathology Certified Agreement 2004 (the Agreement) (Annexure 1). 4. Until 31 December 2009, the Health Services Union of Australia (Private Pathology - Victoria) Award 2003 (the Award) (Annexure 2) covered SDS and persons employed as medical scientists by it. 5. From 1 January 2010 the Health Professionals Support Services Award 2010 (the Modern Award) covered SDS and persons employed as medical scientists by it. 6. The Agreement: (a) was certified pursuant to the Workplace Relations Act 1996 on 2 December 2004 by the Australian Industrial Relations Commission; (b) has a nominal expiry date of 1 July 2007; (c) has not been terminated or replaced; (d) continues to have effect by reason of Schedule 3 Item 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as a transitional instrument; and (e) contains terms and conditions of employment which apply to medical scientists employed by SDS. 7. The Agreement includes the following clauses: (a) incidence - clause 4; (b) relationship with parent award - clause 5; (c) consultation - clause 33; and (d) redeployment and redundancy - clause 35. 8. Clause 33(g) of the Agreement states: g) Notwithstanding anything in this clause, clause 36 (Introduction of Changes) of the Health Services Union of Australia (Private Pathology - Victoria) Award 1993 as at 30 September 2003, shall continue to apply. Purchase of PathLab business and Redundancy of Employees employed by SDS 9. On 1 February 2010 SDS entered into a Business Sale and Purchase Agreement (the Purchase Agreement) with Kanina Banner Pty Ltd trading as PathLab (PathLab) to purchase the PathLab pathology business (the Purchase). The completion date for the Purchase was 1 March 2010. 10. The PathLab pathology business was located at 68 Burwood Highway, Burwood (Burwood laboratory). 11. The Purchase Agreement required SDS to offer employment to all the employees of PathLab by no later than 5 business days prior to the completion date (Annexure 3, clause 15 of the business sale and purchase agreement). 12. In the week beginning Monday 15 February 2010 SDS offered employees employed by PathLab contracts of employment (Annexure 4, template notifying employees of the sale of business and SDS's template letter of an offer of employment to PathLab to employees). 13. The contracts of employment offered by SDS to medical scientists employed by PathLab provided that, among other things: (a) employees of PathLab who accepted employment with SDS would become employees of SDS from 1 March 2010, such employment being conditional upon the completion of the purchase; and (b) the employment of the PathLab employees who accepted employment with SDS would be regulated by the Modern Award. 14. From Thursday 18 February 2010, SDS commenced gathering and compiling data for the purposes of considering possible redundancies with the Purchase and the creation of an employee impact statement regarding those redundancies if they were implemented (the Impact Statement). In addition, SDS began considering SDS' potential liabilities for any redundancies that may be implemented. (Annexure 5 email dated 18 February 2010 from Kate de Carolis of the first respondent to Jenny Fraumano of Jenny Fraumano & Associates, email from Jenny Fraumano to Kate de Carolis and email from second respondent Jenny Fraumano to Dominic Persano of the first respondent). 15. At 8:00am on Monday 22 February 2010 Adrian Merrey, State Finance Manager for SDS provided to Neville Moller, Chief Executive Officer and Jenny Fraumano of Jenny Fraumano & Associates data for the purposes of creating an employee impact statement. This information included calculations of payments for notices of termination and redundancy of medical scientists then employed by PathLab at 68 Burwood Highway, Burwood. 16. At 9:50am on Monday 22 February 2010 Jenny Fraumano requested data from Adrian Merrey regarding the number of employees that SDS will have after the transfer of business and then after the restructure (Annexure 6, email of 22 February 2010 from Jenny Fraumano to Adrian Merrey of the first respondent). 17. On Tuesday 23 February 2010 the HSU lodged an application seeking orders from Fair Work Australia (FWA) in relation to the Purchase and, in particular, that the Agreement would apply to the employees transferring their employment from PathLab to SDS (the Transferring Employees). 18. On Tuesday 23 February 2010 the HSU requested a meeting with SDS in an attempt to avoid the necessity of attending Fair Work Australia on 26 February 2010. (Annexure 7, emails on 23 February 2010 between Dr Kelly and Jenny Fraumano). 19. By Thursday 24 February 2010 at least 58 medical scientists employed by PathLab accepted the offer of employment made to them by SDS. The medical scientists that accepted employment with SDS were members or eligible to be members of the HSU. 20. On Wednesday 24 February 2010 at 2:00pm Dr Rosemary Kelly and Terry O'Loughlin of the HSU met with Neville Moller and Jenny Fraumano at the Heidelberg Laboratory. The discussions that took place at that meeting pertained only to the Purchase and the industrial instrument that should apply to the Transferring Employees. No agreement was reached regarding the applicable transmitting instrument. 21. At 6:05pm on Thursday 25 February 2010 Jenny Fraumano provided a draft impact statement to Neville Moller, Dominic Persano and Kate de Carolis of SDS. 22. At 11:26am and again at 1:23pm on Friday 26 February Dominic Persano made amendments to the draft impact statement. Those amendments were forwarded to Jenny Fraumano by email. 23. On Friday 26 February 2010 at 2:47pm Commissioner Cribb of Fair Work Australia commenced hearing the application made by HSU for orders regarding the Purchase. Jenny Fraumano attended the hearing on behalf of SDS instructing Rohan Millar of counsel. Dr Kelly appeared on behalf of the HSU. The FWA proceedings on the record concluded at 3:33pm when the parties went into private conference. 24. As a result of the private conference, SDS agreed with the HSU that the Agreement was the industrial instrument that would apply to the Transferring Employees. 25. The Agreement, among other things, gave the Transferring Employees an entitlement to a higher rate of pay and enhanced redundancy entitlements as compared to their entitlements under the Modern Award. 26. It was not until after it was agreed that the Transferring Employees would be covered by the Agreement rather than the Modern Award on Friday 26 February 2010 that SDS made a definite decision to make medical scientists redundant, including medical scientists who had accepted the contracts of employment and would commence employment with SDS on 1 March 2010. 27. On Friday 26 February 2010 Adrian Merrey calculated the termination and redundancy pays which would be payable to Sharon Frawley (Annexure 8, redundancy quote estimate prepared on 26 February 2010). 28. On Friday 26 February 2010 at 11:12pm, Jenny Fraumano on behalf of SDS sent an email to Dr Kelly with an attached Impact Statement, notifying the HSU inter alia that: (a) 33.5 effective full-time employees (EFT) of SDS would be made redundant; (b) all the employees to be made redundant would hold the classification of medical scientists; and (c) the effective date of the workplace change would be 1 March 2010. (Annexure 9, email 26 February from Jenny Fraumano to Rosemary Kelly and Impact Statement). 29. The 33.5 EFT referred to in the Impact Statement, although not specified, included medical scientists employed by PathLab and who would become employees of SDS on 1 March 2010 and medical scientists employed by SDS at the Heidelberg Laboratory. 30. On Saturday 27 February 2010 a change was made to the number of equivalent full-time medical scientists who would be affected by the decision of SDS to make scientists redundant at the Burwood Laboratory and Heidelberg Laboratory. SDS did not notify change the HSU that a change had been made to the Impact Statement with respect to the number of scientists affected by the change. (Annexure 10, email of 27 February 2010 from Dominic Persano of SDS to Jenny Fraumano). 31. The Impact Statement provided to the HSU at 11:12pm on Friday 26 February 2010 was posted on the noticeboard at the Heidelberg Laboratory on either Saturday 27 February 2010 or Sunday 28 February 2010. 32. The Impact Statement was not posted on the noticeboard at the Burwood Laboratory. 33. On Monday 1 March 2010 at 12:31pm, Dr Kelly of the HSU sent an email to Jenny Fraumano, Neville Moller, Domenic Persano, Dave Fraumano, Kate De Carolis, Peter Gioulekas and Terry O'Loughlin seeking additional information in relation to the Purchase including, among other things, the number of EFT and actual scientists employed prior to the Purchase and following the Purchase, when a meeting with the HSU was to occur and the date of the proposed redundancies. (Annexure 11, email of 1 March 2010 at 12:31pm from Dr Kelly to Jenny Fraumano). 34. At approximately 2:00pm on Monday 1 March 2010, SDS acquired the PathLab business. 35. At approximately 2.00pm on Monday 1 March 2010, the employees of PathLab who accepted an offer of employment from SDS became employees of SDS. 36. From 3:00pm on Monday 1 March 2010, 27 EFT medical scientists employed by SDS who had been employees of PathLab and had accepted offers of employment with SDS had their employment terminated by SDS by reason of redundancy (Annexure 12, letter of 1 March 2010 from the first respondent to Sharon Frawley attaching redundancy quote estimate). 37. SDS: (a) did not provide an employee impact statement to any of the 27 EFT medical scientists employed at the Burwood laboratory; (b) did not discuss with the 27 EFT medical scientists the significant change effecting each of them namely the termination of their employment by reason of redundancy; and (c) did not discuss with the HSU the significant change effecting each of the 27 EFT medical scientists namely the termination of each of their employment by reason of redundancy. 38. On 2 March 2010 at 7:50am Jenny Fraumano responded to the 1 March email from Dr Kelly whereby she informed Dr Kelly that the redundancy processes would be concluded by 5 March and asked Dr Kelly to advise of her availability should she wish to meet (the 2 March email) (Annexure 13, email at 7:50am from Jenny Fraumano to Dr Rosemary Kelly). Redundancies at Heidelberg Laboratory 39. At the relevant time SDS employed: (a) Voula Patrikios (Patrikios) for a period of 22 years and 7 months; (b) Brendan Hamblin (Hamblin) for a period of 19 years and 10 months; (c) Lena Hena (Hena) for a period 9 years and 4 months; and (d) Chrystalla Englezou-Masouras (Englezou-Masouras) for a period of 21 years and 2 months. as medical scientists at the Heidelberg Laboratory. Each of them were members of the HSU. 40. On 25 February 2010 Nankik Indrawulan of SDS calculated the termination and redundancy pays which would be due and payable to: (a) Patrikios (Annexure 14, redundancy quote estimate prepared on 25 February 2010); (b) Hamblin (Annexure 15, redundancy quote estimate prepared on 25 February 2010); (c) Hena (Annexure 16, redundancy quote estimate prepared on 25 February 2010); 41. In the late afternoon of Wednesday 3 March 2010 SDS verbally advised Patrikios that: (a) her services were no longer required; (b) a restructure was taking place; (c) her position was redundant effective immediately, (d) she would be paid a severance payment in accordance with the Agreement; and (e) she subsequently received written confirmation of these matters. (Annexure 17, notification of position redundancy dated 3 March 2010 to Patrikios). 42. In the late afternoon of Wednesday 3 March 2010 SDS verbally advised Hamblin that: (a) his services were no longer required; (b) a restructure was taking place; (c) his position was redundant effective immediately, (d) he would be paid a severance payment in accordance with the Agreement; and (e) he subsequently received written confirmation of these matters. 43. In the late afternoon Wednesday 3 March 2010 SDS verbally advised Hena that: (a) her services were no longer required; (b) a restructure was taking place; (c) her position was redundant effective immediately; (d) she would be paid a severance payment in accordance with the Agreement; and (e) she subsequently received written confirmation of these matters. 44. On Monday 8 March 2010 at 10:00am SDS verbally advised Englezou-Masouras that: (a) her services were no longer required; (b) a restructure was taking place; (c) her position was redundant effective immediately; (d) she would be paid a severance payment in accordance with the Agreement; and (e) she subsequently received written confirmation of these matters. 45. Patrikios, Hamblin, Hena and Englezou-Masouras did not receive an employee impact statement from SDS regarding the proposed changes. 46. SDS: (a) did not provide Patrikios, Hamblin, Hena and Englezou-Masouras with the Impact Statement; (b) did not discuss with Patrikios, Hamblin, Hena and Englezou-Masouras the significant change effecting each of them namely the termination of their employment by reason of redundancy; (c) did not provide the HSU with an employee impact statement that delineated between the proposed changes effecting medical scientists at the Burwood Laboratory and Heidelberg Laboratory; and (d) did not discuss with the HSU the significant change affecting each of its members Patrikios, Hamblin, Hena and Englezou-Masouras namely the termination of their employment by reason of redundancy. Admitted contravention 47. By reason of the matters set out herein SDS admits that it breached: (a) clause 33(g) of the Agreement; and (b) clause 35.2 of the Agreement. 48. As a result of the admissions above SDS has contravened Item 2 of Schedule 16 of the Transitional Act. 49. The admitted contraventions in Item 2 of Schedule 16 of the Act constitute a single contravention pursuant to section 557 of the FW Act. Agreed Penalty 50. The HSU and SDS agree that the Court should impose a penalty upon SDS in the amount of $12,000 in respect of the admitted contravention and the penalty is to be paid to the HSU in accordance with section 546 of the FW Act.
Health Services Union
Specialist Diagnostic Services Pty Ltd