General protections cases and the Federal Court

On 26 February I published a post about the tendency of the Federal Court to want to send general protections’ claims instituted perfectly properly before it down to the Federal Circuit Court. Here is a decision delivered in the circumstances in which the Federal Court did so of its own motion!

“LOGAN J:

1    Ms Carly Bullock (Ms Bullock) has instituted proceedings in this Court’s Fair Work Division against AJ & Co Lawyers Pty Ltd, the first respondent, AJ & Co Lawyers, a partnership, the second respondent, and certain named natural person respondents (the third to sixth respondents inclusive).

2    One issue on the pleadings is whether the first respondent was Ms Bullock’s employer or whether it was the second respondent. As a matter of impression, based on the pleadings alone, it appears that, as is not uncommon, there was a corporation – the first respondent – which acted as a service company for the second respondent – the partnership – which provided legal professional services. At a factual level, and this is an issue for resolution at trial, the issue is complicated by an apparent submission of forms associated with the JobKeeper Scheme which nominated the second respondent partnership as an employer for the purposes of that scheme.

3    There is an explanation given in the pleadings for that seeming inconsistency which is that that course was, so it is said, encouraged by the federal civil service branch administering the scheme, perhaps for reasons of pragmatism associated with the more appropriate, in the eyes of the civil service, Australian Business Number. It is not in any way appropriate at this stage to resolve that controversy, only to highlight matters of impression.

4    Those matters of impression are of some importance when it comes to a question raised, on my initiative, on notice prior to today’s case management hearing. The question raised was whether or not the case was one apt for remission to the Federal Circuit Court of Australia (Federal Circuit Court)?

5    At the heart of the case, and apart from resolution as to the true employer, lies a question as to whether or not an apparent variation of a contract of employment, was not, in fact, consensual, as opposed to, in effect, procured by undue influence or unconscionable conduct.

6    The broad factual background to the case, again, on the pleadings, is one of apparent difficulty encountered last year in the conduct of the legal practice as a result of the economic impact of the COVID-19 pandemic and associated public health restrictions. Whilst that might be thought to be productive of a systemic application for the proceeding, on closer analysis the proceeding is really one which turns just on particular facts.

7    On my assessment, the areas of factual controversy are likely to be very narrow indeed. That is because the circumstances leading up to the alleged variation of Ms Bullock’s employment are both oral and in writing. As to the written part – a series of emails – there does not appear to be any evidentiary dispute. There does appear to be, at the margin, some controversy as to associated conversations. The variation itself or alleged variation is in writing, and that, in itself, is not controversial. It is common ground that the amount of allegedly underpaid wages is modest. That is not in any way, by the use of the word “modest”, to downplay the importance that the case, doubtless, has for Ms Bullock, only to emphasise, in a relative sense, that it is not a case in which there are hundreds of thousands of dollars, if not more, at stake. It is not of that quality.

8    Section 32AB(6) of the Federal Court of Australia Act 1976 (Cth) read in conjunction with r 27.12 of the Federal Court Rules 2011 (Cth) provides for a number of factors which are pertinent in relation to the question of remission. The pleadings do make reference to a legal services award but not in terms of alleged underpayment, to a breach of that award. There is, on the face of the pleadings, a controversy as to classification under the award, but it is not apparently a controversy that leads anywhere in terms of underpayment. The amount which was fixed was contractually fixed.

9    I do not assess the case as one which raises questions of general importance. It appears to be one which wholly turns on facts peculiar to the present case and the present case alone. There are allegations of serious breaches of the Fair Work Act 2009 (Cth) (Fair Work Act) contrary to s 557A, but the jurisdiction in respect of such breaches is shared as between this Court and the Federal Circuit Court. There is no general rule either of law or practice which dictates that an allegation of a serious breach must be heard in this Court. Each case must turn on its own particular facts.

10    One reason why Parliament chose to establish the Federal Circuit Court was so that it might deal with, amongst other things, more modest cases arising under the Fair Work Act. I am firmly of the view that this is such a case. Ideally, it is a case which ought to compromise at mediation if each party truly stands back and reflects upon the evidentiary proofs entailed. However, in my view, if it does proceed to trial, it is unlikely to take more than three days, in my view. It is certainly not a case of such length as, notwithstanding its otherwise lack of systemic qualities, ought, perhaps incongruously, to be dealt with by a judge of this Court rather than a judge of the Federal Circuit Court so as to free up the latter for the volume work which is envisaged by Parliament to be the remit of that court.

11    So, when all is said and done, the case is one where there is value, in my view, in at least forcing, through mediation, the parties to confront, with the benefit of a mediator, issues as to prospects and quantum. If, nonetheless, the case does not compromise at mediation for it ought then be remitted forthwith and without further order to the Federal Circuit Court.

12    I note that there are, apparently, proceedings as yet at an early stage in the conciliation and arbitration commission presently known as the Fair Work Commission (Industrial Commission). The fate of those proceedings, of course, is presently a matter for the Industrial Commission.

13    It is for those reasons that the orders pronounced today have been made.”

 

Bullock v AJ & Co Lawyers Pty Ltd [2021] FCA 149 per Logan J