FEDERAL COURT OF AUSTRALIA

Degenhardt v Ambulance Victoria [2019] FCA 1841

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    This is an appeal from the Federal Circuit Court. The appellant, Ms Degenhardt, claimed that her employer, the respondent Ambulance Victoria (previously Rural Ambulance Victoria) underpaid her employee entitlements. The primary judge trifurcated the trial into three parts, being liability, ‘scenarios’ (an expression which will be explained below), and quantum, and handed down one set of reasons for each hearing. The procedural history of this matter is explained below.

2    For the reasons that follow the appeal is dismissed.

factual background

3    The appellant was employed by the respondent pursuant to two successive written contracts, in the form of letters of offer. The first letter of offer is dated 13 November 2006 (with Rural Ambulance Victoria, which merged with other entities to become the entity the respondent in these proceedings on 1 July 2008) (2006 Contract), and the second dated 10 October 2012, which was accepted in early 2013 (2013 Contract). Her employment commenced on 4 December 2006.

4    The appellant was engaged first under the title Casual Media Liaison, and later as Media Officer, though nothing turns on this difference in nomenclature. The appellant’s duties were the subject of considerable evidence below. It appears that there were some changes to her duties over the period of her employment which was almost a decade. In summary, the appellant’s role was to respond to telephone calls from various media agencies concerning incidents in which the respondent became involved. The appellant answered enquiries from media organisations and liaised with relevant staff of the respondent to assist in responding to their enquiries.

5    On 21 April 2015 the appellant’s employment was terminated for reasons not in issue in this appeal.

6    On 7 June 2015 the appellant commenced the proceeding in the Circuit Court. The appellant claimed she had been under remunerated by the respondent. In substance, she claimed that she was entitled to more favourable conditions as to remuneration under applicable industrial instruments when compared with either of the 2006 and 2013 Contracts.

Judgment below

7    The primary judge first restated the agreed statement of facts jointly submitted by the parties. His Honour construed the interaction of the contracts and industrial instruments applicable to the appellant. In Degenhardt v Ambulance Victoria [2017] FCCA 543 (Liability Decision), his Honour found that the 2006 and 2013 Contracts were contractually binding on the parties (Liability Decision at [18] and [29]). He found that the 2006 Contract provided for the appellant to be employed as a casual employee on an “as required basis” (Liability Decision at [11]).

8    The appellant was rostered for duty for 12 hour shifts, to be “on call”. The appellant was to be paid $80.00 per shift for “the on call component and up to 1.5 hours of actual work” (Liability Decision at [11]). It appears the per shift flat rate was gradually increased over the period of the appellant’s employment to $90.04 (Liability Decision at [62]). For the additional hours of actual work beyond the first one and a half hours per shift, the appellant was to be paid $30.00 per hour pro rata for the time worked “if required” (Liability Decision at [11]).

9    The appellant was required to submit fortnightly timesheets, which she did (Liability Decision at [13]). However, she recorded only the period she was rostered on, not the time spent actually working during those periods. The above terms for remuneration were inclusive of sick leave and annual leave. There was some dispute as to the number of shifts the appellant was to be rostered on to work. It suffices to note that the primary judge found that the appellant was rostered for four, back-to-back shifts per week (Liability Decision at [5](b)). The parties on appeal drew no distinction between the 2006 and 2013 Contracts.

10    The primary judge summarised his conclusions concerning the contractual relationship as follows (Liability Decision at [111]):

It seems to me that the position may be condensed to the following concepts. The 2006 contract applied from Ms Degenhardt’s commencement with RAV up to the date of that contract’s novation with AV in 2008. Thereafter, it applied between Ms Degenhardt and AV from the date of its novation (2008) up to April 2013 when the 2006 contract was discharged by agreement. From April 2013 until the date on which Ms Degenhardt ceased employment with AV, the 2013 contract applied.

11    The primary judge considered whether any, and if so which, enterprise agreements to which the respondent was a party at relevant times applied to the appellant’s employment. Five enterprise agreements were said to potentially apply to the appellant. His Honour said at [97]:

The parties alleged that the totality of the sources of the provisions about Ms Degenhardt’s remuneration and entitlements were set out in –

[the 2006 and 2013 Contracts] …

c)    the Rural Ambulance Victoria and Health Services Union (Management and Administrative Staff) Collective Agreement 2006;

d)    the Metropolitan Ambulance Service and Health Services Union (Management and Administrative Staff) Collective Agreement 2006;

e)    the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2010;

f)    the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2011; and

g)    the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014.

(the Enterprise Agreements)

12    His Honour held, in accordance with established principle in industrial law, that at a given point in time the relevant Enterprise Agreement prevailed if there was any conflict with the contract (Liability Decision at [113] and [114]).

13    The principal question in relation to liability was whether there was any conflict or inconsistency between an applicable enterprise agreement and the terms of the 2006 or 2013 Contracts. This question arose in the context that none of the Enterprise Agreements stipulated what was to occur in an ‘on call’ arrangement.

14    The appellant urged before the primary judge, and on appeal, that as there was nothing in the Enterprise Agreements governing ‘on call’ service, the appellant was entitled to be paid at the casual rate for each hour ‘worked’, where ‘work’ is to be taken to mean hours rostered on call, not hours actually spent working in the sense of performing tasks such as answering telephone calls and responding to enquiries.

15    The respondent contended that the appellant’s entitlements were governed by the 2006 and 2013 Contracts and that she had been renumerated in compliance with her contractual entitlements. The following questions articulated for the purposes of this appeal express these opposing contentions:

(1)    Whether the appellant was to be paid the ‘on call fee’ as set out in the 2006 and 2013 Contracts;

(2)    Whether the appellant, in addition or in substitution for the ‘on call fee’, was to be paid at the hourly rate for every hour she was rostered on, or, for every hour she actually worked;

(3)    Whether, if the appellant was only to be paid for every hour she actually worked, she was to be paid only for the time she spent on the phone, or, for additional time in preparing, making inquiries and researching material in connection with those calls; and

(4)    Whether the appellant was to be paid overtime or penalty rates in accordance with the Enterprise Agreements.

16    The primary judge noted at [116] that “[t]he phrase “on-call” has been raised in a number of authorities … [h]owever, none have a factual parallel to this case”. His Honour concluded at [136] and [137] that the appellant was entitled to be paid the ‘on call’ fee including for periods when the appellant may have been sleeping while rostered on. He also concluded at [125] the appellant was to be paid for each hour actually worked, in the sense of taking and making phone calls, as well as preparing, investigating and researching matters in relation to those calls.

17    Whether the appellant was entitled to be paid at penalty rates or with some other loading was also considered by his Honour. His Honour concluded that the appellant was to be paid the casual employee loading of 25% of the hourly rate.

18    The primary judge summarised under the heading Synopsis at [5] his findings concerning liability:

5.    For the reasons that follow, in my judgment –

a)     the 4 April 2013 contract and the 2010, 2011 and 2014 enterprise agreements applied;

b)    Ms Degenhardt was entitled to be paid on the basis that she worked for four shifts;

  c)    Ms Degenhardt was entitled to be paid for being “on-call”;

  d)    Ms Degenhardt was entitled to be paid a casual loading; and

  e)    Ms Degenhardt was entitled to be paid at penalty rates.

19    Though the Synopsis refers to ‘penalty rates’, his Honour later noted this was an error (Scenarios Decision as defined below, at [3]).

20    In the Liability Decision the primary judge did not make any arithmetic calculations to ascertain the quantum of the appellant’s entitlements or any shortfall to which she may be entitled (Liability Decision at [146]). The Liability Decision included orders that “[w]ithin 14 days … the parties are to bring in orders that give effect to these reasons” (Liability Decision at [155]).

21    The parties were apparently unable to agree upon appropriate orders. At a later case management hearing, directions were made that the parties together produce agreed ‘scenarios’. The scenarios were to encapsulate alternative bases on which the appellant’s entitlements might be calculated. His Honour indicated that he would then select the ‘scenario’ which best matched the Liability Decision.

Scenarios Decision

22    Nine scenarios were produced. The second decision, Degenhardt & Ambulance Victoria (No.2) [2017] FCCA 2223 (Scenarios Decision) concerned the question of which of the nine scenarios was to be preferred as an encapsulation of the findings made in the Liability Decision. By the time of the hearing, only scenarios four, five and seven were pressed for consideration. These scenarios are set out below:

Definitions

Claim Period means the period between 18 June 2009 to 17 June 2015.

Enterprise Agreements means:

•    the Rural Ambulance Victoria and Health Services Union (Management and Administrative Staff) Collective Agreement 2006 (“2006 Agreement”);

•    the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2011 (“2011 Agreement”); and

•    the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014 (“2014 Agreement”).

Scenarios

…

4.    Scenario 4

4.1.    The Applicant was entitled to be paid in accordance with the Enterprise Agreements for all time worked during the hours for which she was rostered to be on call (generally, but not limited to, Mondays and Tuesdays) which consisted of:

•    the time spent by the Applicant taking or making telephone calls in relation to media queries, regardless of the time of those calls; and

•    an additional 100% of the time spent on calls to account for ancillary and preparatory work.

4.2.    For each hour that the Applicant worked in accordance with 4.1, she was entitled to be paid the relevant casual hourly rate under the Enterprise Agreements which included a:

•    25% casual loading for the hours that fell on Monday to Friday; and

•    75% casual loading for hours that fell on weekends and public holidays.

4.3.    The Applicant was entitled to superannuation of 9.5% during the Claim Period.

5.    Scenario 5

5.1.    The Applicant was entitled to be paid in accordance with the Enterprise Agreements for all time worked during the hours for which she was rostered to be on call (generally, but not limited to, Mondays and Tuesdays) which consisted of:

•    the time spent by the Applicant taking or making telephone calls in relation to media queries, regardless of the time of those calls; and

•    an additional 150% of the time spent on calls to account for ancillary and preparatory work.

5.2.    For each hour that the Applicant worked in accordance with 5.1, she was entitled to be paid the relevant casual hourly rate under the Enterprise Agreements which included a:

•    25% casual loading for the hours that fell on Monday to Friday; and

•    75% casual loading for hours that fell on weekends and public holidays.

5.3.    The Applicant was entitled to superannuation of 9.5% during the Claim Period.

…

7.    Scenario 7

7.1.    The Applicant was entitled to be paid at the casual loaded rate (viz. 125% of base rate) under the Enterprise Agreements for each hour for which she was rostered to be on call (irrespective of any telephone calls made or taken or work performed in relation thereto) which was usually 48 hours per week (i.e. 4 shifts of 12 hours).

7.2.    For the first 7.6 hours during which the Applicant was rostered to be on call each week, the Applicant was entitled to be paid at the rates set out in 8.1 and thereafter at overtime rates in accordance with the Enterprise Agreements, being 150% of base rate for the first two hours and 200% thereafter.

7.3.    The Applicant was entitled to superannuation of 9.5% during the Claim Period.

…

23    The respondent contended scenarios four or five most closely reflected the conclusions reached in the Liability Decision. Scenarios four and five represented awards in favour of the applicant of $68.71 and $11,756.00 respectively (Scenarios Decision at [9]), though the arithmetic calculations in relation to each scenarios was expressly stated to be “indicative only at this stage” (Scenarios Decision at [25]). The method adopted by these scenarios was to pay the applicant for each hour worked (in the sense of time actually spent answering and responding to enquiries) as estimated by her telephone records. The amount actually paid to the appellant (agreed by the parties to be $101,182 in total) was then deducted from that figure to give the ultimate underpayment. Scenarios four and five did not include any payment for the flat $80 per shift rate for being on call as provided for in the 2006 and 2013 Contracts.

24    The difference between scenarios four and five was that the multiplier to be applied to estimate the amount of time actually worked, derived from the total hours of telephone calls recorded on the appellant’s telephone records, was higher under scenario five. The multiplier for scenario four allowed the time spent on telephone calls to be multiplied by 100%, or doubled, to arrive at an estimate of the hours of actual work. Under scenario five, the new multiplier was 150%. The number of hours worked was calculated by multiplying the total number of hours the appellant spent on the telephone calls by 100% (scenario four) and 150% (scenario five).

25    The appellant contended for scenario seven. The scenario resulted in an indicative shortfall of $896,399.00 (Scenarios decision at [8]). Under scenario seven, each and every hour the appellant was on call was to be treated as an hour actually worked (48 hours per week), to be paid at the casual rate of pay under the relevant Enterprise Agreement for the first 7.6 hours per day, and a penalty rate loading for hours thereafter.

26    In the Scenarios Decision the primary judge preferred the appellant’s scenario seven, for reasons which are more conveniently considered below. However, his Honour did not make orders for any sum to be paid to the appellant, instead directing the parties to “bring in minutes of orders that reflect these reasons as well as directions as to the further conduct of this case” (Scenarios Decision at [27]).

Quantum Judgment

27    The parties were again unable to agree upon orders. Both parties filed submissions, and the appellant filed a report from Mr Michael Rosner, a forensic accountant (Rosner report). The Rosner report contained a calculation of the unpaid remuneration under scenario seven in the sum of $799,940.

28    The respondent objected to the admissibility of the Rosner report. The primary judge upheld the objection. The appellant challenged this ruling on appeal. However, it is unnecessary to decide this question as during the appeal both parties agreed that the sum set out in the Rosner report is a correct calculation for the purposes of scenario seven.

29    Ultimately, the primary judge did not grant relief on the basis of scenario seven, instead awarding the appellant $154,841 on the basis of a new scenario handed up during the third (quantum) stage of hearing. This stage concluded with final orders being made in Degenhardt v Ambulance Victoria (No 3) [2018] FCCA 113 (Quantum Judgment). During this hearing, counsel for the respondent handed up three documents which contained additional numerical analyses. The first document set out the ‘on call’ rate the appellant was owed under the 2006 and 2013 Contracts, what she was actually paid under those contracts, and the shortfall between her entitlement and the aggregate amount. The respondent contended that this shortfall best captured the conclusion in the Liability Decision that the “on-call fee is payable” (at [138] and [5](c) of the Synopsis).

30    The second document set out a calculation for the ‘150% uplift’. This allowance mirrored the approach taken in scenario five referred to above, save that it allowed for the ‘on call’ payment in addition to the hourly rate.

31    There was a practical difficulty in using telephone records as the basis for extrapolating an estimate of time actually spent working because there were seventeen months where telephone records were not available. To overcome this deficiency, the scenarios handed up included an estimate of the average monthly hours for the seventeen month period for which there were no telephone records, derived from a period where telephone records were available.

32    The third document applied the same calculus as the second document, but applied a 300% multiplier as opposed to a 150% multiplier.

33    To adopt the language used by his Honour, these second two documents amounted to the presentation of two further scenarios being scenarios ten and eleven. These scenarios provided a calculation of the appellant’s entitlements on the basis of hours spent on the phone multiplied by the specified uplifts, as well as an ‘on call’ fee flat rate as provided for under the 2006 and 2013 Contracts.

34    His Honour ultimately held for the appellant on the basis of scenario eleven (the 300% uplift), which I will refer to as the ultimate scenario from hereon, and awarded her the total sum of $154,841; $6,832 attributable to the shortfall in the ‘on call’ fee, and $148,009 in respect of additional hours worked at the applicable casual rate.

Issues on appeal

35    On 7 June 2018 the appellant filed an Application for Extension of Time and Notice to Appeal. The extension of time was sought as the appeal was filed one day late. The application was not opposed and on 17 July 2018 Justice Mortimer granted the extension of time. The Notice of Appeal advanced 11 ‘grounds of review’. On the last day of hearing leave was given to file an Amended Notice of Appeal. The Amended Notice of Appeal repeated the original grounds, (excluding the preamble to paragraph 1), and added further detail by way of ‘particulars’.

36    During the hearing of the appeal, the issues were narrowed significantly. First, as noted above, the Rosner Report was no longer material. The grounds relating to the Rosner Report, grounds six and seven, were no longer in issue and were abandoned by the appellant. Further, grounds two and four by which it was contended that the primary judge erred in unduly limiting the relevant time period for the calculation of any shortfall were abandoned by the appellant.

37    The parties agreed that the appeal turned on the application of either scenario seven, as preferred by the primary judge in the Scenarios Decision, or, the ultimate scenario, as preferred by his Honour in the Quantum Judgment. There was no dispute concerning the arithmetic calculation of the sums applying to one or other scenario. The only question remaining was, as I have stated, which scenario properly applied.

38    Counsel for the respondent grouped the remaining grounds of appeal into topic categories referred to below. The appellant agreed that these were the remaining issues for determination on appeal:

(1)    The ‘quantum’ grounds five, nine and ten, being:

5.     The learned trial Judge in finding that to pay compensation for actual loss incurred (as found in the first two judgements) was absurd was in error. Further, the learned trial judge was in error in finding that “it became necessary for me to select a scenario that produced a realistic award for Ms Degenhardt”.

9.     The learned trial judge erred in his reliance on the decision of the court in Polan v Goulburn Valley health (No.2) (Polan).

10.     The facts and circumstances in Polan bore no resemblance to the facts and circumstances as found in the liability judgement or the scenario judgement.

(2)    The ‘change of approach’ grounds one and three, being:

1.     The compensation decision is in stark contradiction to the judgements that lead up to it. The learned trial Judge changed fundamentally the basis on which he calculated the underpayment to the applicant without providing reasons or adequate reasons for that change.

3.     The learned trial Judge in rejecting the evidence of loss failed to take into account the underpayments to the applicant found by him in the two previous judgements. The failure to take such underpayments into account results in a manifest injustice to the applicant.

(3)    The ‘procedural fairness’ ground eight, being:

8.     The learned trial Judge in adopting the method of compensation that he did and accepting the document provided by the respondent re-300% uplift without affording the appellant an opportunity to inspect the document or to make submissions on the document or raise what was in his contemplation, amounts to a further failure to afford the appellant procedural fairness.

39    On 15 March 2019 a Notice of Contention was filed by the respondent, for which leave was granted. The Notice of Contention repeated and affirmed that the reasoning of the primary judge in the Quantum Judgment was sound, however, further contended in the alternative that if that reasoning was held to be in error, it should nonetheless be affirmed for the reasons there set out.

Quantum grounds

40    I find no error in the analysis of the primary judge in relation to the assessment of the quantum of the appellant’s claim. His Honour correctly determined the contractual basis on which the appellant was employed, together with the applicable cognate industrial instruments, and awarded the appellant the shortfall.

41    It was common ground that the appellant’s employment was on the basis of the 2006 and 2013 Contracts, and the Enterprise Agreements. It was also common ground that there was a lacuna in the latter concerning the terms for remuneration of workers engaged to be ‘on call’.

42    The primary judge considered the phrase ‘on call’ in other authorities (Liability Decision at [116] to [139]). In Warramunda Village Inc v Pryde (2002) 116 FCR 58 Finkelstein J at [43] held that “[a]n employee who is required to be “on call” is an employee who must attend at work when called to do so”. Warramunda concerned an on call relationship in which the employees were called back to their place of employment. Here, the appellant worked from home and was not required under either the 2006 or 2013 Contracts to complete her work from any particular place. The analogy with the ‘sleepover shift’ line of cases such as Warramunda is not therefore entirely apposite.

43    In Polan v Golburn Valley Health [2016] FCA 440 Mortimer J considered the basis for remuneration for an employee of a hospital whose responsibilities relevantly included rostering staff members to fill emergency shortages. The employee was required to be ‘on call’ outside regular business hours but was not necessarily required to return to the workplace to fulfil her duties. Her Honour at [68] said:

I do not consider it can be said that when the applicant was away from the workplace, and outside her ordinary working hours, but required to be ready and available to take calls so as to rearrange the rosters and shifts of doctors, she was performing her duties of employment. Rather, she was on-call. Once she received and made calls, and commenced trying to find replacement doctors or locums, and rearrange shifts, then she was performing the duties of her employment and was entitled to be remunerated for it. The real question therefore is: in what manner?

44    As the primary judge correctly noted, his task was to construe the 2006 and 2013 Contracts and the Enterprise Agreements and the interaction between them in an industrially sensible way (Liability Decision at [108](c) and [124], citing Amcor Limited v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241).

45    In my view it is not objectively reasonable, nor industrially sensible, to construe the appellant’s entitlements to remuneration for being ‘on call’ as equivalent to her entitlement to a salary calculated at her hourly rate of $30 for any period that she was rostered to be ‘on call’. I do not accept that was the bargain struck between the parties.

46    If the 2006 and 2013 Contracts were to be so construed, allowing for the fact that the appellant was generally rostered to be ‘on call’ for two days and two nights per week, her gross annual salary calculated at her hourly rate of $30 and including the ‘on call’ flat rate would be over $100,000; a sum far in excess of the average yearly earnings of approximately $20,000 the appellant actually received. This would be an anomalous, even absurd, outcome which objectively is highly unlikely to have been the intention of the parties or their common understanding.

47    Grounds nine and ten challenge the adoption of the approach taken in Polan of inferring hours of work from telephone records. In my view, the approach used in Polan was reasonable and equally apposite in the present circumstances.

48    First, as noted above, the appellant was required under the 2006 and 2013 Contracts to submit timesheets for payment. There were no timesheets kept by the appellant which detailed the tasks and time taken to complete them in a given shift.

49    Second, the appellant did not advance any alternative basis for calculating the actual time worked, apart from the contention that the entire 48 hours per week should be the basis. This begs the question if, as I have concluded, the appellant is not entitled to be paid her hourly rate for the entire duration of any period when she was rostered to be ‘on call’.

50    Third, there were records of the appellant’s telephone for the majority of the relevant years which recorded the time she spent receiving and making calls. There was some dispute about whether the telephone records adequately recorded all of the time the appellant spent on the phone. The appellant submitted that it was her evidence that she had one phone on which to receive calls, and another on which she made calls (see Liability decision at [57]). In my view, even if it be accepted that the telephone records are not an entirely complete record, in the absence of other more complete objective evidence, the use of the telephone records as the primary data upon which to extrapolate an estimate of the time the appellant spent undertaking actual tasks, as opposed to being ‘on call’, is the best evidence before the Court. Further, applying a 300% uplift as determined by the primary judge, provides a reasonable allowance for deficiencies in the telephone records. In the absence of complete time sheets with full narrations of the actual work undertaken by the appellant, the task of the Court is to do the best it can to make an assessment of any shortfall in payment of the appellant’s entitlements. The Polan approach achieves this objective in these circumstances.

51    In Polan there were also insufficient timesheet records to conclusively determine the hours actually worked. In the absence of such records, Mortimer J applied an ‘uplift’ to the telephone records to make allowance for the work performed when not on the phone. Here, as in Polan, the employee was found to be ‘on call’ when she was required to be ready and available to attend to her duties. I respectfully agree with, and adopt, the approach taken by her Honour in Polan.

52    The appellant urged on appeal that the correct approach was that taken by Finkelstein J in Warramunda. As above, Warramunda is not of factual assistance in this case as it concerned a different ‘on call’ arrangement. Irrespective of the lack of factual analogy, the reasoning displayed in Warramunda does not support the appellant’s contention in any event. Finkelstein J accepted in that case that being ‘on call’ was different to being ‘at work’ or ‘working’. His Honour thus held that an employee could not simultaneously be ‘on call’ and working, as until the employee is called to attend work, he or she is not working (at [43]). Such a conclusion is apposite here, and mandates the conclusion that the on call and hourly rate for work performed be differentiated.

53    I turn now briefly to ground five. The contention appears to be that the primary judge found that “to pay compensation for actual loss incurred (as found in the first two judgments) was absurd was in error”. This is a misstatement of the finding by the primary judge. His Honour did not find that it was absurd to compensate the appellant for her actual loss. Rather, his Honour was considering the question of what loss was actually suffered, stating that in relation to the Rosner Report sum based on scenario seven “[h]er entitlement to that amount was not proved” (Quantum Judgment at [36]).

54    For these reasons, grounds five, nine and ten must fail.

Change of Approach

55    By grounds one and three the appellant contended that the primary judge was bound by either his Liability or Scenarios Decisions in coming to his conclusion in the Quantum Judgment. These grounds were advanced on the basis his Honour either “changed fundamentally” the basis on which he reached his ultimate conclusion, or “failed to take into account underpayments found by him” in the earlier decisions.

56    At the conclusion of the Scenarios Decision his Honour stated as follows:

25.    The arithmetic that the respective scenarios thereby produced was indicative only at this stage. It may not transpire that Ms Degenhardt is able to prove that by the application of the methodology in scenario 7 she can establish a monetary entitlement of the magnitude she currently asserts. The precise quantification of the monetary component of my findings herein must unfold.

CONCLUSION

26.    In my view, scenario 7 correctly corresponded to the findings of fact and holdings of law that I made in this case.

(emphasis added)

57    The criticism of the primary judge’s departure from his earlier expressed preference for the appellant’s construction of the 2006 and 2013 Contracts referred to in paragraph [26] above is misconceived. His Honour was entitled to explore the range of ‘scenarios’, or worked examples, put forward by the parties. He did not preclude further consideration of the quantification of the appellant’s claim and both parties made submissions during the third quantum phase of the hearing below.

58    In coming to his Honour’s conclusion in the Quantum Judgment, his Honour stated as follows:

35.    In debate with Mr Addison [solicitor-advocate for the appellant], I raised with him the possibility that I may not accept Mr Rosner’s arithmetic or even the logic of his calculations with the consequence that he did not persuade me that Ms Degenhardt was entitled to the sum claimed. I asked Mr Addison what happened in that eventuality. Mr Addison referred to the manifest injustice of that conclusion. He initially agreed that in that situation Ms Degenhardt would fail in this case then he later submitted that I was empowered to choose a different one of the nine scenarios that were the subject of my consideration in the second judgment in this case.

(emphasis added)

59    It appears from the foregoing that the solicitor-advocate for the appellant acknowledged that his Honour could conclude on an alternate basis to scenario seven.

60    Even if the primary judge had formed a concluded view that scenario seven expressed the findings made at the liability stage, he was not precluded from changing his mind. He made only procedural orders at the conclusion of the scenarios stage and accordingly he had not finally disposed of the matter before him. Accordingly, his Honour was not functus officio and was therefore entitled to consider, as he did, the further scenario put forward by the respondent at the quantum stage.

61    If I am wrong in this conclusion, in any event I am not bound by any conclusion reached by his Honour. This is an appeal in the nature of a rehearing. The respondent contends in its Notice of Contention that the quantification of the appellant’s claim was correctly assessed on the basis that she was entitled to a contractual flat rate being ‘on call’ and a casual rate for hours actually worked pursuant to the Enterprise Agreement. I agree with this construction of the appellant’s entitlements and with the application of a 300% uplift consistent with the approach taken in Polan to allow for deficiencies in record keeping.

62    For these reasons grounds one and three must fail.

Procedural Fairness

63    By ground eight the appellant contends that in allowing the respondent to hand up a new set of scenarios at the hearing culminating in the Quantum Judgment, “without affording the appellant an opportunity to inspect the document or to make submissions on the document” the primary Judge denied procedural fairness to the appellants.

64    The ultimate scenario was handed up in open court and explained to the appellant at that time. As discussed above, it adopted effectively the same approach as taken in scenarios four and five, though did so with a greater uplift, and with the addition of an allowance for the underpayment of the ‘on call’ flat rate under the 2006 and 2013 Contracts. On appeal, and below, the appellant did not dispute the quantification of the amounts payable under this scenario, but rather the legal correctness of an approach similar to that taken in Polan and Warramunda as discussed above.

65    Further, as referred to above, the primary judge at [35] of the Quantum Judgment stated that the solicitor-advocate for the appellant accepted that his Honour could adopt an alternate scenario to scenario seven if his Honour did accept the expert evidence.

66    The primary judge took a staged, iterative approach to hearing and determining the issues before him. In the third quantum stage, the issues had become refined to the selection of a scenario that best reflected the appellant’s legal entitlements and quantified any entitlements. The appellant’s opposition to the ultimate scenarios was grounded in a contention of principle that the approach in Polan should not be applied in her case. The primary judge rejected that contention. However, the appellant was given the opportunity to advance her opposition to the Polan approach both at first instance and on appeal. Accordingly, there was no procedural unfairness and ground eight must fail.

Disposition

67    For the reasons given above the appeal should be dismissed with costs.

Associate:

Dated:    11 November 2019