FEDERAL COURT OF AUSTRALIA

SOS Nursing & Home Care Service Pty Ltd v Smith [2013] FCA 295

THE COURT ORDERS THAT:

1.    The originating application filed on 3 August 2011 is dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant is to pay the costs of the NSW Nurses’ Association as taxed, if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The applicant is a company which provides home care and nursing services in regional areas of New South Wales and Queensland. To provide those services it employs nursing and related staff. So far as presently relevant, those staff are employed on a casual basis, but it was not always so. The originating application seeks a declaration that the applicant is not obliged to pay its casual staff for time spent travelling between visits to provide services during the course of a day.

2    As will appear more fully in due course, it is apparent that the present proceedings were commenced in order to overcome, if possible, the effect of a decision of the Federal Magistrates Court of Australia (“the FMCA”), which found that the applicant was legally bound to pay travelling time (i.e. at ordinary rates of pay) to its casual employees for the time it took to travel from one client visit to the next in the course of a day.

3    The applicant selected as a respondent to the present proceedings a person described in an affidavit in support of the originating application in the following way:

20    The Respondent is a Registered Nurse employed by the Applicant as a Health Care Worker, and is affected by the matters in dispute.

4    Apart from that brief reference, none of the evidence filed by the applicant in support of its originating application made any reference to the respondent or to her circumstances.

5    The respondent to the originating application has played no part in the proceedings. On the other hand, the NSW Nurses’ Association (“the Nurses’ Association”) has a history of disputation with the applicant about the working conditions and entitlements of employees of the applicant. The Nurses’ Association was the applicant in the proceedings in the FMCA, referred to earlier, and had earlier brought other legal proceedings against the applicant about such matters.

6    The only other evidence referring to the respondent, and any interest the respondent may have had in the outcome of the proceedings, was contained in a copy of a letter sent by the Nurses’ Association to the respondent before the proceedings were commenced. The letter gave information about the ongoing disagreement between the applicant and the Nurses’ Association. It suggested that the respondent, as a non-member of the Nurses’ Association, could not rely on it to protect her interests but suggested various things that might be done by her to press her entitlements. No evidence about the respondent’s own attitude was before the Court.

7    After the present proceedings were commenced, the Nurses’ Association sought leave to be joined as a party in its own right. I was not satisfied that the Nurses’ Association had a right to be joined as a party (see r 9.05 of the Federal Court Rules 2011 (Cth)), but it seemed to me to be appropriate that it should be granted leave to intervene with full rights to participate as if a party (see r 9.12 of the Federal Court Rules 2011 (Cth)). An order to that effect was made on 28 October 2011. The Nurses’ Association thereafter acted as the only contradictor in the proceedings.

8    An applicant for a declaration must be able to secure a proper contradictor (Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437-438; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085 at [8]). The applicant explicitly accepted in its written submissions that the Nurses’ Association was a proper contradictor and, implicitly at least, accepted that the respondent was not. Indeed, had the Nurses’ Association not put itself forward as a contradictor, there is real doubt whether a proper foundation for a declaration would have been in place to sustain the proceedings at all (see Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394 and the cases there cited).

9    When it sought leave to be joined as a party, or to intervene, the Nurses’ Association sought to argue that the applicant was estopped from commencing the proceedings and that the proceedings were an abuse of process. It sought to argue those matters on an interlocutory basis as well as indicating that it would, in any event, oppose the originating application on its merits. I initially directed that the interlocutory application and the originating application should be heard together. Directions were made for evidence and opening arguments to be filed. In September 2012, dates were set for a final hearing in March 2013. In December 2012, those dates were retained, at the request of the applicant and the Nurses’ Association, even though there had been some slippage in the timetable.

10    On 7 March 2013 (just over one week before the dates set for hearing), solicitors for the applicant advised the Court that the applicant’s primary witness (the managing director of the applicant) had a pre-arranged holiday in Europe which had been organised before the dates for hearing were set and that she planned to leave Australia on 18 March 2013 (the first day of hearing). The applicant applied to adjourn the hearing and to list the proceedings for hearing on dates after the return of the witness to Australia on 16 April 2013. On 11 March 2013, I indicated that I would deal with the interlocutory application filed by the Nurses’ Association on the dates already fixed. I reserved 18 and 19 April 2013 (dates which met the convenience of the applicant and its counsel) in case the interlocutory application did not succeed.

The industrial instruments

11    Prior to 27 March 2006, the applicant was bound by the provisions of a NSW award – the Nurses Other Than In Hospitals (State) Award (“the award”). The award was made under industrial legislation enacted by the Parliament of New South Wales. When the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) came into operation, the award was preserved in its operation as a federal instrument called a “notional agreement preserving State award” (“the NAPSA”).

12    In 2007, the applicant proposed to its employees that they should agree to the terms of a proposed collective industrial agreement. The terms of a proposed agreement were approved by a majority of employees in July 2007 and the agreement was, on 3 August 2007, submitted by the applicant for approval to the Workplace Authority (established under the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth), Sch 2).

13    A condition of approval was that the agreement pass a “fairness test”. A long period passed before a ruling was made on that question but, on 17 February 2009, a decision was announced by the Workplace Authority that the agreement submitted by the applicant on 3 August 2007 did not pass the “fairness test”. After a period of negotiations between the applicant and the Workplace Authority, some changes were made to the agreement and it was then accepted as one which passed the “fairness test”, effective from 1 September 2009.

14    Evaluation of the issues in the present case will require attention to judicial findings about the terms and operation of the NAPSA, the agreement in the form it took on 3 August 2007 and the agreement in the form it took on 1 September 2009.

15    In earlier proceedings commenced in this Court in 2008 concerning the NAPSA, the Nurses’ Association sought a declaration, binding upon it and the present applicant, in the following terms:

It is declared that upon the proper construction of the Notional Agreement Preserving State Award known as the Nurses Other than in Hospitals &c., (State) Award (“NAPSA”):

Where an employee whose employment is subject to the NAPSA spends time travelling between the residences of clients of the employer for the purpose of providing services to those clients on behalf of the employer, the employee is, during that travelling time, on duty and working for all purposes under the NAPSA.

16    At that time, the relevant employees were “day workers” whose employment was subject to clause 2(v) of the NAPSA as follows:

Day Workers – the ordinary hours of work for day workers shall not exceed 38 hours per week to be worked between the hours of 7.00am and 7.00pm in five days of not more than eight hours, Monday to Friday, inclusive and shall be consecutive except for breaks for meals.

17    Perram J upheld the claim that the declaration should be granted (NSW Nurses’ Association v SOS Nursing and Home Care Service Pty Ltd [2009] FCA 1147). After setting out clause 2(v), his Honour said:

21    There is no room in that clause for work done intermittently. It is true that the notional agreement contains no provisions dealing with travel pay but I do not think that that assists debate one way or the other; if there were provisions dealing with travel pay that might be a different matter. The only other textual matter which has significance is contained in cl 18, which was very properly drawn to my attention by counsel for the respondent. It provides:

18. Vehicle Allowances

(i)    An employee who is required by his/her employer to provide a car for the performance of his/her duties shall be paid the appropriate car allowance for the horsepower of the car he/she provides as set out in Part B. A part-time employee shall be paid such allowance on a pro-rata basis of the ratio of hours worked by the employee to full-time hours per week.

(ii)    The standing charge prescribed by subclause (i) of this clause shall be paid to the employee for all period of paid leave of 5 days or less duration.

(iii)

(a)    A casual employee who is required by his/her employer to provide a car for the performance of his/her duties shall be paid the rate as set out in Part B.

(b)    An employee who is not required to provide a car for the performance of his/her duties shall be paid the rate as set out in Part B when he/she uses their own vehicle on the employer’s business.

…

22    This clause shows that the notional agreement contemplates that the performance of the nurses’ duties may involve travel. That is consistent with the notion that they should be paid for the performance of those duties. Finally, the proposition that the notional agreement should be interpreted so that employees are not paid for periods of time when they are performing duties for the employer is surprising, and not lightly to be embraced in the absence of a clarity of expression which the notional agreement clearly lacks. It follows that, in principle, the declaration should be granted.

18    The agreement made in 2007, the SOS Nursing and Homecare Service Pty Ltd: Employee Collective Agreement 2007 (“the agreement”), did not maintain the arrangement whereby employees of the applicant were “day workers”. The agreement treated employees of the applicant as casual employees. The agreement also changed the provisions concerning vehicle allowances. The new provisions, intended to operate from 3 August 2007, included the following clauses.

19    Clause 7 provided:

ENGAGEMENT

Unless otherwise specified in writing each employee is deemed to be a casual employee. …

Employees are engaged as “Casual employees” on an hourly basis…Each engagement represents a discrete and non continuous period of work.

20    Clause 11 provided:

RATES OF PAYMENT

11.1 The aggregated rates of pay in Appendix B to this Agreement incorporate all penalty rates, overtime and allowances, including, but not limited to the casual loading into a single aggregated wage.

…

11.3 Employees shall be paid an hourly rate at the level of work allocated to them by SOS…

11.4 Employees shall be required to record each visit or service provided to a client on the appropriate form and to submit this form to SOS each fourteen days for payment. …

21    Clause 12 provided:

VEHICLE ALLOWANCE

12.1 From commencement of this Agreement, employees who use their vehicle as part of the performance of their duties shall complete all prerequisite details in the “vehicle log book” provided by the company on completion of each work related journey. The logbook shall meet all the requirements of the ATO for the employee to claim travel and related expenses reimbursement as part of their personal tax return.

Employees required to use their own private vehicle must ensure that it remains insured, registered and road worthy at all times. Employees who travel over 20km one way to get to the first and last job and/or travel between each job by the most direct route, shall be paid an allowance of $0.20/km. This allowance is paid for distance travelled in excess of 20km per day. This rate shall be reviewed each February.

22    Appendix B provided for hourly rates of pay for weekdays, Saturdays, Sundays and public holidays for various levels of domestic assistant, carer, and nursing staff, including a registered nurse supervisor. Appendix B was followed by a note which read:

Note: The above aggregated hourly rates apply to casual employees and are inclusive of the casual loading. …

23    The changes made effective from 1 September 2009 in order that the agreement satisfy the “fairness test” were accomplished, for the most part, by adding new provisions after the provisions contained in the original agreement. Clause 12 was supplemented by the inclusion of the following note:

Note Amendments to this Clause on page 6

Appendix B (previously the last provision in the agreement) was followed by the following note:

AMENDMENTS: Effective 01 September 2009

As required by the Australian Government Workplace Authority

Increased pay rates required to pass the Fairness Test.

24    Then a new schedule was included which incorporated higher rates of pay than the original agreement. Then four clauses (or subclauses) were included which were clearly intended to replace the provisions of the original agreement (even though those provisions continued to appear in the document). Clause 12 (which appeared on page 6) provided as follows in its amended form:

12.1    From commencement of this Agreement, employees who use their vehicle as part of the performance of their duties shall complete all prerequisite details in the “vehicle log book” provided by the company on completion of each work related journey. The logbook shall meet all the requirements of the ATO for the employee to claim travel and related expenses reimbursement as part of their personal tax return.

12.2    Employees required to use their own private vehicle must ensure that it remains insured, registered and road worthy at all times. An allowance of $0.20 per kilometre for each kilometre travelled from home to employee’s last job. Travel must be via the most direct route, and excludes travel not directly between each service.

12.3    Where employees travel in excess of 50 Kms [sic] for the first service, they are paid travel time at their relevant hourly rate of pay.

The case in the FMCA

25    Disputation between the Nurses’ Association and the applicant continued. In 2011, the Nurses’ Association commenced proceedings in the FMCA to enforce the rights of a member, Ms Helen Cornish, to payment for time spent travelling from client to client and other entitlements.

26    The agreement was made under the Workplace Relations Act 1996 (Cth) (“the WR Act”), which directly governed its application and enforcement until 1 July 2009, when the Fair Work Act 2009 (Cth) commenced to operate. After 1 July 2009, the application and enforcement of the agreement was covered by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the FW (Transitional) Act”). Under each of the legislative schemes the Nurses’ Association had a direct statutory right to enforce the agreement, even though it was not a signatory to it (see WR Act, s 718(1) item 4(c), s 718(6)(f) and (g); FW (Transitional) Act, Sch 3 clauses 1, 2(2)(c) and 3(2)(b), Sch 16 clauses 2(2) and 16(1)(b), item 40). This remains the present position.

27    Although the proceedings in the FMCA were directed at the immediate goal of vindicating the rights of Ms Cornish, as between the Nurses’ Association and the applicant their legal significance was not so confined. In light of its representative nature, a legal adjudication obtained by the Nurses’ Association in its own name operated for the benefit of its members also. It might also be enforced by the Nurses’ Association for the benefit of those who were entitled to be its members.

28    One of the issues which was before the FMCA was the same legal issue which is raised in the present proceedings. Resolution of the issue required construction of the same provisions of the agreement, and consideration of the significance of the same amendments made in 2009. The FMCA decided that the applicant was bound by the agreement to pay its nursing staff for time spent travelling between clients (NSW Nurses’ Association v SOS Nursing & Home Care Service Pty Ltd & Anor [2011] FMCA 225).

29    The FMCA recorded the following:

28.    The addition to the SOS Agreement of clause 12.3 by the [Workplace Authority] provided for payment for travel time where an employee travelled more than 50 kilometres to the first visit. Such a clause was not included in the original SOS Agreement prior to the variation. Neither is it asserted that such a practice was in place prior to the SOS Agreement.

29.    It is common ground that the question of whether time travelled between clients, other than in excess of a distance of 50 kilometres, was required to be paid to Ms Cornish depends on the proper construction of the SOS Agreement.

…

46    The alleged contraventions of the SOS Agreement by the first respondent are said to be:

(i)    A failure to pay Ms Cornish for time spent travelling between the homes of clients. The applicant submits that, properly construed, the SOS Agreement imposes an obligation upon the first respondent to pay Ms Cornish an hourly rate of pay for all time worked, including time spent travelling.

…

99    On the evidence before me, including that of Ms Hawkins, I am satisfied that travel time was not paid at the hourly rate to Ms Cornish in addition to the face to face time, except insofar as she may have travelled more that [sic] 50 kilometres to visit a client.

100    Counsel for the applicant, Mr Gibian, contended that Ms Cornish was entitled under the SOS Agreement to be paid for all time worked including travel time between clients.

101    Counsel for the respondents, Mr Coleman conceded that Ms Cornish was entitled to be paid for all time worked including travel time. However, Mr Coleman contended that Ms Cornish was paid a higher hourly rate that would compensate her for the time travelled between clients without being paid additionally for that travel time.

102    Mr Coleman submitted that the hourly rate of pay included travel time because it was expressed in the SOS Agreement to be an aggregated rate of pay inclusive of all penalty rates, overtime and allowances, including but not limited to the casual loading into a single aggregated wage.

103    Clause 11 makes no specific reference to travel time between clients as being taken into account in a single aggregated wage.

104    The matters that are said to be included in clause 11.1 of the SOS Agreement in the aggregated rate of pay are some of the protected award conditions identified in s.354 of the [Workplace Relations Act 1996 (Cth)] and which the SOS Agreement is intended to displace. There is no provision in s.354 of the [Workplace Relations Act 1996 (Cth)] to include travel time as part of the protected award conditions. In the circumstances, I do not accept Mr Coleman’s submission that the aggregated wage includes travel time, other than the travel allowances specifically referred to in the SOS Agreement.

30    This conclusion deals directly with the issue which the applicant sought to raise by its present application. The FMCA went on to consider the relevance of the inclusion of clause 12.3 effective on 1 September 2009. The FMCA recorded:

108    Mr Coleman submitted that the SOS Agreement should be read so as to give effect to its evident purposes which involved a search for the meaning intended by the framers of the document. Mr Coleman contended that “evident purposes” was not a reference to the industrial context and purpose of the SOS Agreement, as submitted by counsel for the applicant in his opening. Mr Coleman referred the Court to Kucks v CSR Limited (1967) 66 IR 182 at 184 per Madgwick J. To that end, Mr Coleman submitted that the genesis of clause 12.3, although slightly different, was found in the practice of paying nurses for travel time where a client was more than 50 kilometres away from the nurse’s home. Mr Coleman submitted that the fact that that practice and clause 12.3 dealt with payment of travel time in specific circumstances led to the inference that the SOS Agreement, properly construed, did not include additional payment for time travelled between clients other than in those circumstances; and, that payment for all other travel time was therefore included in the hourly rate.

109    There was no evidence led by the first respondent to suggest that the practice of payment for travel when a nurse travelled more than 50 kilometres to a client’s home was in existence prior to the SOS Agreement. Further, no such contention was put to Ms Blackford or Ms Cornish in cross-examination. In the circumstances, I am satisfied that Ms Cornish was not paid travel time for visits which exceeded 50 kilometres from her home before the SOS Agreement.

110    Had such a practice existed prior to the SOS Agreement, it may have mitigated against travel time being payable to Ms Cornish at her hourly rate in addition to the face to face client time; because, if she was entitled to be paid for travel time in addition to face to face time in any event, there would have been no need for any such practice of paying travel time where a nurse is asked to perform a service that is more than 50 kilometres away, because that travel time would already have been part of the nurse’s working time.

111    As stated above, in the circumstances, any such payment for travel time where more than 50 kilometres was travelled to a client from the nurse’s home did not form part of the SOS Agreement and is not relevant to its proper construction and the fact of such payments is not relevant to the proper construction of the SOS Agreement. Similarly, clause 12.3 is also not relevant to the proper construction of the SOS Agreement as at 3 August 2007. The SOS Agreement as varied by the [Workplace Authority] specifically stated that clause 12.3 had effect from 1 September 2009. In such circumstances, it cannot be relevant to the proper construction of the SOS Agreement as at 3 August 2007.

31    While I am not dealing with an appeal from the decision of the FMCA, there is, with respect, some reason to doubt the accuracy of the analysis in [110]. It was pointed out by the Nurses’ Association on the present application that there was in fact some evidence of a practice of making a payment to at least some employees required to travel more than 50 kilometres to a first visit. However, I have a more important reservation. A specific arrangement, such as that made by clause 12.3 from 1 September 2009, to pay travelling time from home to a first service, says nothing directly about whether nursing staff should be regarded as on duty from the commencement of a first service to the end of the last one. It is normal enough that employees are not paid to travel to the place where work for the day commences, or to return home after work finishes. It is apparent that the new provisions which commenced on 1 September 2009 modified that position in two ways. First, a vehicle allowance was to be paid for all kilometres from home to the last job, and not just for travel in excess of 20 kilometres per day. Secondly, an employee who travelled more than 50 kilometres to the first service was to be paid for that journey at the normal hourly rate of pay. That provision dealt with travelling time prior to work commencing. It did not affect the entitlement found by the FMCA to payment for travel between services. Time spent travelling between services was found by the FMCA to be working time, as it had been under the award and the NAPSA, independently of the amendments to clause 12 introduced from 1 September 2009. It is not necessary to dwell further on any minor criticism that might be available of the factual findings or subsequent analysis about this aspect of the judgment of the FMCA. These were matters to be taken up, if at all, on an appeal if they struck at the heart of the ultimate conclusion. As will be seen, that did not happen.

32    Then the FMCA considered an argument to the effect that travel time was required because the agreement represented a continuation of entitlements and arrangements under the NAPSA, considered by Perram J. The FMCA recorded:

122    Ms Cornish gave evidence that generally she visited clients of the first respondent pursuant to a rostered shift where those clients were visited consecutively and continuously and that her work habits were the same under the SOS Agreement as they had been under the NAPSA. However, under the SOS Agreement she was only paid at her hourly rate for the time spent in face to face visits. She was otherwise not paid for any travel time, other than where she travelled more than 50 kilometres to visit a client.

123    I accept that the work patterns of Ms Cornish typically involved consecutive and continuous travel between clients and that it is proper to have regard to those work patterns prior to 3 August 2007, in construing the SOS Agreement.

124    In the circumstances, Perram J’s judgment supported the applicant’s contention that working time under the SOS Agreement was intended to include face to face time and travel time between clients visited on a consecutive and continuous basis. As stated above, Ms Cornish was paid only for face to face time at her hourly rate without any additional payment at her hourly rate for the time travelled between clients where that travel was in respect of consecutive and continuous visits.

…

127    The SOS Agreement provided in clause 7 that “each engagement represents a discrete and non continuous period of work”. Neither party made any particular submission about the manner in which that part of clause 7 should be construed. However, in my view it is necessary to construe that part of clause 7 in considering what “each engagement” was intended to cover. If, on a fair construction “each engagement” was intended to refer to every visit then, the travel time between such visits may not be part of the nurses working time. However, a beneficial construction of that clause would suggest that “each engagement” is intended to refer to a rostered shift which required visits to clients on a consecutive and continuous basis. Such a construction is consistent with the approach by Perram J in NSW Nurses’ Association v SOS Nursing and Home care Service Pty Ltd (2009) 190 IR 112.

128    In the case before this Court, it is clear that when the nurses were paid in accordance with the NAPSA, they were to be paid for travel time when visiting clients on a consecutive and continuous basis. As stated above, there is no evidence before this Court of any change in the working patterns of the nurses generally, or Ms Cornish in particular, to suggest that the rostered shifts operated differently under the NAPSA as opposed to under the SOS Agreement.

129    However, I note that the clause contained in the NAPSA and construed by Perram J required that inter alia, “the ordinary hours of work for day workers... shall be consecutive except for their breaks for meals.” Whilst that clause is different to clause 7, both contemplate consecutive and continuous visits to clients. Both parties before this Court agree that working time must therefore include any time involved in travel between clients being seen consecutively and continuously for that period of work.

130    Counsel for the respondents, submitted that Perram J’s decision related to construing the relevant NAPSA which did not provide explicitly for travel time payments whereas in Mr Coleman’s submission the SOS Agreement explicitly does provide for payment of travel time. However, in making that submission, Mr Coleman was referring to clause 12.3 which I have already found not to be relevant in construing the SOS Agreement because it was a variation required by the WAD in order that the SOS Agreement passed the fairness test and was effective only from 1 September 2009.

131    In the circumstances, I find that if the time between visits involved any use of private time by the nurse, or any break longer than the time reasonably required to travel to the next client, then such time would not be included as part of the working time of that particular rostered shift or engagement [sic]

132    In the circumstances, Ms Cornish was entitled under the SOS Agreement to be paid travel time where that time was part of her working time in circumstances where she was visiting clients on a consecutive and continuous basis, whatever the distance between those clients.

133    The failure to pay Ms Cornish that travel time between clients in accordance with the hourly rate, where she was engaged in continuous and consecutive visits, is a contravention of the SOS Agreement.

134    Accordingly, Ms Cornish is entitled to compensatory damages from the first respondent for its breach of the SOS Agreement to pay her in respect of all time spent travelling between clients for which she was not paid.

33    The observations in [127] are critical and the finding in [132] also is a critical one for present purposes. The conclusion of the FMCA was to the effect that nursing staff employed by the applicant, although casuals under the agreement and engaged on an hourly rate, were engaged on a rostered shift which included normal travelling time between continuous and consecutive visits as ordinary working time. It is important to appreciate that the FMCA’s reasoning that travel time between clients was part of ordinary working time was based upon the proper construction of the agreement as at August 2007. The FMCA put aside from that question any provision made with effect from 1 September 2009. That approach was clearly correct. The FMCA concluded that the working arrangements were in practice those which had applied under the previous instrument. On this approach, the entitlement in clause 12.3 represented a new entitlement to the payment for the time taken to get to the first client on a particular day or shift. Where travel more than 50 kilometres was required, then that period of initial travel was to be paid as travelling time, in addition to the working time which commenced with the first client and continued, in a series of continuous and consecutive visits, to the time when the visit to the last client finished.

34    The FMCA’s decision dealt with other matters also. The present applicant was dissatisfied with the outcome. It appealed the judgment. The appeal did not extend to the finding about entitlement to travel time. On 20 April 2012, Tracey J ordered that the appeal be dismissed (SOS Nursing and Home Care Service Pty Ltd v New South Wales Nurses’ Association [2012] FCA 398). Tracey J recorded:

37    The Federal Magistrate found that SOS had contravened the agreement by failing to pay “travel time” to Ms Cornish. She made a declaration and granted other relief in respect of this contravention. These orders are not challenged on this appeal and no more need be said about them.

That part of the judgment of the FMCA stood, therefore, as a legally binding and final adjudication of that issue between the present applicant and the Nurses’ Association.

The present application

35    The applicant remained dissatisfied with the judgment of the FMCA about payment for travel even though that part of the judgment was not appealed. It commenced the present proceedings in this Court seeking to litigate the same issue. The proceedings were commenced on 3 August 2011. They seek the following declaration:

A declaration that on the proper construction of the SOS Agreement the applicant is not required to pay its employees whose employment is covered by the SOS Agreement for time spent travelling between client engagements, except where the employee is required to travel more than 50 km to their first engagement.

36    The respondent chosen by the applicant has played no part in the proceedings. The declaration sought in the proceedings, moreover, is not limited to that respondent. The explanation of the applicant’s reasons for seeking the declaration, notwithstanding the decision of the FMCA, was given as follows in the affidavit in support of the application:

15    In its decision (NSW Nurses’ Association v SOS Nursing and Home Care Service Pty Ltd and Anor [2011] FMCA 225) the Federal Magistrate’s Court decided a number of issues adversely to the Applicant with respect to the employment of the relevant employee.

16.    The Applicant has lodged an appeal against part of the decision. It has not lodged an appeal against that part of the decision which relates to the issue of interpretation of the SOS Agreement referred to in paragraphs 12-13. The Applicant has not however applied the reasoning of the decision to other Health Care Workers other than the employee who was the subject of the application before the Federal Magistrate’s Court. The Applicant says that that decision is limited to its facts, even on the interpretation of the SOS Agreement regarding travel time.

…

19.    The Applicant seeks to have the Court determine and declare what is the proper construction of the SOS Agreement. The Applicant also wishes to bring before the Court evidence about the circumstances of the making of the SOS Agreement, the work practices of the Health Care Workers at the time that the SOS Agreement was made and other evidence which is admissible on the construction of the SOS Agreement which was not otherwise adduced by the Applicant in the Federal Magistrate’s Court proceedings.

37    The applicant proposes on this occasion to call evidence from Ms Rosemary Hyles, the managing director of the applicant. Ms Hyles was the second respondent in the proceedings before the FMCA. Part of the case before the FMCA asserted that Ms Hyles was knowingly concerned in the applicant’s breach of the agreement. The FMCA noted (at [168]) that Ms Hyles made an election not to give evidence.

38    The evidence which has been filed in support of the present application, although it includes an affidavit from Ms Hyles, gives no explanation why the evidence now sought to be called was not called earlier. Written submissions filed by the applicant in answer to the present interlocutory application said:

15.    … The Applicant will submit that it is open for the Court to infer (on this application) that the only reason that it did not bring that evidence in [2011] FMCA 225 was because of some error/inadvertence on the part of those advising it in those proceedings. There is no other logical explanation for why the Applicant did not bring this evidence in [2011] FMCA 225.

39    There is no occasion to draw any inference of that kind when a party has refrained from giving evidence available to it about the reasons for a particular course of conduct. No evidence has been filed which would given any support to the inference.

40    It is not necessary for me to deal with the affidavits which were filed by the applicant in the present proceedings to support its case for a declaration save to say that at its highest, if admitted, that material would do no more than provide some further foundation to argue again for the same construction of the agreement which was rejected by the FMCA. The argument does not strike me as a particularly powerful one. I would certainly not accept that it would represent a necessary injustice to the applicant if its case was not put again.

41    Moreover, there are compelling reasons of public policy why that should not happen.

Issue estoppel

42    In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, Lord Guest distilled the elements of issue estoppel in the following terms (at 935):

(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

43    Whether the same question was decided in earlier proceedings may be tested in accordance with the observations of Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 (at 276):

Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.

44    The statements by Lord Guest and Barwick CJ, set out above, were each cited as correct statements of the law in Kuligowski v Metrobus (2004) 220 CLR 363 (see [21] and [40]; see also Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [76]-[77]).

45    When those tests are applied to the present case there is no doubt, in my view, that an issue estoppel arises, preventing the applicant from attempting to re-agitate a matter already finally decided against it by a court competent to do so.

46    The agreement is binding on the applicant in respect of all the casual staff to whom it applies. The binding legal effect of the agreement does not alter from person to person. Nothing, therefore, turns on the fact that in the earlier proceedings the circumstances of Ms Cornish were examined, whereas the present proceedings were commenced against an unresisting respondent who has taken no part in the proceedings. The Nurses’ Association has adequate standing and legal capacity to act as a contradictor in the present case. A decision in the present case would bind it, as it did in the earlier case, even though in the present case it is an intervener rather than a party (see e.g. Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 505). The issue raised by the present application is precisely the same issue as was decided by the FMCA, and not then made the subject of an appeal to this Court.

47    There is authority to the effect that members of an industrial association are not estopped by decisions binding that association (see Young v Public Service Board [1982] 2 NSWLR 456). There is no need to consider the correctness of that approach, or whether it applies under the statutory scheme I have identified, because it can have no application in the present case. There is no need here to consider who might be the privies of the Nurses’ Association. It claims the benefit of the estoppel in its own name and in its own right.

48    The FMCA is a court established under Chapter III of the Constitution. It exercises the judicial power of the Commonwealth. Its decisions are, subject to any relevant right of appeal, final and legally binding. The decision of the FMCA, that the applicant is bound to pay its casual nursing staff who are employed under the agreement for the time they spend travelling between client engagements, was a final decision binding the applicant. The declaration sought in the present proceedings is the direct contradiction of that finding. The applicant, in my view, is estopped from seeking that declaration.

Abuse of process

49    The Nurses’ Association also argued that the application represented an abuse of process. A finding to that effect will not add any legal consequence to my conclusion about issue estopppel but nevertheless the contention should be addressed, because it is possible to characterise some conduct as an abuse of process, even where the strict tests for issue estoppel are not met.

50    A useful statement of the particular principles relied on by the Nurses’ Association may be found in the judgment of French J (when his Honour was a judge of this Court) in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58]-[70] (see also Habib at [89]). A recent application may also be found in the judgment of Foster J in Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257 at [53]-[55]. The principle relied on by the Nurses Association is usually traced back to Reichel v Magrath (1889) 14 App Cas 665 (at 668). In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ said, referring to Reichel v Magrath (at 393):

…proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

51    That principle appears to me to apply in the present case. The point of construction which the applicant wishes to ventilate in the present case was argued to finality, before a competent court, in proceedings to which the applicant was a party and was under no relevant disability or disadvantage. The point was not pursued in an appeal instituted by the applicant. Indeed, the applicant’s written submissions candidly stated the position:

12.    It is not disputed that the issue of the interpretation of the SOS Agreement was an issue in the proceedings before the Federal Magistrates Court in NSW Nurses’ Association v SOS Nursing & Home Care Service Pty Limited [2011] FMCA 225. It was not the sole issue, but was one which was considered in the context of determining whether the Applicant (and its director) had contravened provisions of the SOS Agreement with respect to one of its employees. It is also not disputed some of the orders which were made by the Federal Magistrates Court were based on, or followed from its determination of that issue. Finally, it is not disputed that in these proceedings the Applicant seeks a declaration as to the proper interpretation of the SOS Agreement, and it asks the Court to consider an issue which was before the Federal Magistrates Court in [2011] FMCA 225.

52    The Nurses’ Association has a clear interest in the maintenance of the judgment of the FMCA. In my view the attempt to go behind the judgment, by casting the proceedings into a different form with a submissive or non-responsive nominal opponent, should not be countenanced. For that reason also, the proceedings should be dismissed summarily.

Costs

53    The present proceedings rely upon the WR Act which was continued in force in relation to the agreement by the FW (Transitional) Act. Section 824 of the WR Act limits the liability of a party to proceedings to pay costs. Section 824(1) provides:

824    Costs only where proceeding instituted vexatiously etc.

(1)    A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

54    The Nurses’ Association applied for its costs, although only on a party/party basis. In my view, the Nurses’ Association is entitled to its costs. The legal defect in the proceedings is a clear one. It seems to have had no adequate recognition by the applicant and its advisers. The proceedings were instituted without reasonable cause.

Orders

55    The originating application filed on 3 August 2011 will be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). The applicant must pay the costs of the Nurses’ Association as taxed, if not agreed.

Associate:

Dated:        5 April 2013