Air Work Ombudsman v AJSJ Pty Ltd
[2014] FCCA 902
•14 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v AJSJ PTY LTD & ANOR | [2014] FCCA 902 |
| Catchwords: INDUSTRIAL LAW – Underpayment of wages – hospitality industry – foreign employee – construction of award – collective agreement – whether the employer had knowledge of the employee’s qualifications – whether the employee’s qualifications were relevant – nature of the employee’s duties – failure by employer to pay correct wage – contraventions made out. |
| Legislation: Evidence Act 1995 (Cth), s.79 Workplace Relations Act 1996 (Cth), ss.347, 717, 719, 728 |
| Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Macquarie Dictionary (Macquarie, 3rd ed, 1997) |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | AJSJ PTY LTD |
| Second Respondent: | JASBIR KAUR GHAG |
| File Number: | BRG 1156 of 2011 |
| Judgment of: | Judge Burnett |
| Hearing dates: | 22, 23 and 26 July 2013 |
| Date of Last Submission: | 26 July 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 14 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. James |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Solicitors for the First Respondent: Solicitors for the Second Respondent: | Milner Lawyers Milner Lawyers |
ORDERS
THE COURT DECLARES THAT:
The First Respondent contravened:
(a)Clause 15, in conjunction with clause 17, of the Rue de Paris Collective Agreement 2006; and
(b)Clause 6 of the Rue de Paris Collective Agreement 2006;
which are “applicable provisions” for the purposes of s.718 of the Workplace Relations Act 1996 (Cth).
The Second Respondent was involved in the contraventions of the First Respondent referred to in Order 1 within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).
THE COURT DIRECTS THAT:
The matter be listed for a penalty hearing for not more than one (1) day in the Federal Circuit Court of Australia sitting at Brisbane on a date to be advised.
The Applicant file and serve upon the Respondents any submissions and/or evidence it intends to rely upon in respect of penalty twenty-one (21) days prior to hearing.
The Respondents file and serve upon the Applicant any submissions and/or evidence it intends to rely upon in respect of penalty fourteen (14) days prior to hearing.
The Applicant file and serve upon the Respondents any submissions and/or evidence in reply in respect of penalty seven (7) days prior to hearing.
The parties have liberty apply.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1156 of 2011
| FAIR WORK OMBUDSMAN |
Applicant
And
| AJSJ PTY LTD |
First Respondent
| JASBIR KAUR GHAG |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Between about 24 October 2007 and 5 April 2008, AJSJ Pty Ltd (“the Employer”) employed Ms Akiko Sagi as a cook in its Milton restaurant, Rue de Paris (“the restaurant”). She was employed on a casual basis, performing cooking duties which included making and preparing salads, antipasto, entrees and main meals. Ms Sagi was then resident in Australia on a vocational skills visa. Sometime after her employment had terminated she became aware of the existence of the Applicant. She believed that she had been incorrectly paid by the Employer and complained to the Applicant on or about 14 October 2010. Subsequent inquiry by the Applicant revealed that she had in fact been underpaid. The Applicant now complains of various breaches of the Workplace Relations Act 1996 (Cth) (“WR Act”). It seeks appropriate declarations and the imposition of penalties.
Background facts
Ms Sagi is a Japanese citizen. On 5 April 2006 she was granted a Vocational Education and Training Sector Temporary Visa (Subclass 572), which permitted her to study and remain in Australia until 5 November 2007. While in Australia she studied hospitality management at Sarina Russo Schools Australia. She graduated on 27 August 2007, at which time she successfully applied for a Skilled Independent Overseas Student Visa (Subclass 880) (“Subclass 880 visa”). She was then afforded permanent residency. Throughout her residency in Australia she was authorised to be in employment by the various visas issued to her.
On 16 August 2007 she obtained the qualification of Certificate III in Hospitality (Commercial Cookery) (“Cert III”). She had achieved that qualification in the course of undertaking her Advanced Diploma in Hospitality Management (Commercial Cookery Stream) (“ADHM”) at Sarina Russo Schools Australia. As the course requirements for the ADHM included the subjects that made up the qualification for the Cert III, the successful completion of the ADHM had the effect of providing both qualifications, i.e. the ADHM and the Cert III.
As part of the coursework for the ADHM she was required to undertake a significant amount of unpaid work experience in commercial kitchens. The requirement to undertake such duties was a relevant prerequisite to the issue of those certificates.
Having completed her course in mid-August 2007 she was anxious to find employment. Although she had attained her qualifications she particularly required employment because she required a further 500 hours of work experience as a cook to support her Subclass 880 visa application. By mid-October 2007 she had not found employment and the need to satisfy that visa condition was pressing. About that time she was informed by a friend that the restaurant was looking for cooks. Accordingly, she provided a copy of her resume to the Employer. Although there is some debate concerning which particular resume founds its way into the hands of the Employer, the substantial matters addressed in each version of her resume placed before the Court remained identical. Each of the three versions of her resume included information about her ADHM and work experience performed at the Hilton Hotel (Brisbane), Stamford Plaza (Brisbane) and for Spotless Services. Her resume was stated to have been forwarded under cover of a letter said to be responding to the Employer’s advertisement seeking a chef. She noted her half year of unpaid work experience, and continued:
“I also graduated advanced diploma of hospitality management and interested in this industrial [sic]. Because I studied commercial cookery in this college.”[1]
[1] Affidavit of A. Sagi filed 15 February 2013 at AS-14. Ms Sagi says the letter was a pro-forma letter and although it referred to seeing an advertisement she did not see an advertisement in respect of the position in Rue de Paris, but rather was referred by a friend; she accepts that she was not aware of any such advertisement.
Ms Sagi says that she attended the restaurant on about 20 October 2007, when she was interviewed by the Employer’s director, Ms Jasbir Ghag (the Second Respondent). Ms Ghag was one of two directors and shareholders of the Employer. During the interview Ms Sagi says she told Ms Ghag that she had studied and completed a cookery course, that she needed to do work experience as a cook to support her visa application and that she wanted as many hours as possible. She says that she also informed Ms Ghag that she wanted night-time work because she had a different job in the mornings. There is some dispute about whether she also informed Ms Ghag that she was a student, a matter addressed below. Immediately following the interview she undertook an unpaid work trial overseen by the head chef of the restaurant, Mr Craig Sanford. Ms Sagi noted that at the time of the trial the restaurant was busy and that the various meals and side dishes she prepared under supervision included salads, pizzas, chips, bruschetta, beef nachos and sandwiches. She says she was told that the position would be paid $9.25 per hour.
Subsequently, on 24 October 2007, she was given a written offer of employment from Mr Harry Ghag[2] and Ms Ghag on behalf of the Employer. The offer stated that she would be employed under the terms and conditions of the Rue de Paris Collective Agreement 2006 (“the Collective Agreement”). She signed the offer on 25 October 2007 and duly commenced employment. She understood that she was being employed as a casual cook, although she noted that her position title on the offer of employment was described as “casual … International Cook in Training.” At that time she did not query the title because she understood the term “International” to refer to her being from overseas. She thought that the words “in Training” were included because she needed to complete her work experience hours for her visa and because she was considered new to the position of cook as she had not had any previous paid work experience. She has no specific recall of being shown a job description, but that matter is of no moment. Further, she does not recall seeing the Collective Agreement. She believes that if she had she would have been alerted much earlier to the fact that the offer of $9.50 per hour was considerably less than the allowances provided for other staff under the Collective Agreement.
[2] Mr Ghag was also involved in the running of the restaurant. However, Ms Sagi notes that she cannot recall meeting Mr Ghag at her interview or work trial. She also says that she thought of the Second Respondent as the “main boss”: Affidavit of A. Sagi filed 15 February 2013 at [43], [49].
After commencing employment she largely worked under the supervision of Mr Sanford. The duties she undertook were those to be expected of a cook, including:
a)making light meals and entrees;
b)cooking main meals;
c)occasionally making deserts;
d)plating food for service; and
e)ensuring food hygiene.
She used the equipment that would be expected of a person undertaking cooking duties, including:
a)ovens;
b)stoves;
c)deep fryers;
d)mixers; and
e)microwave ovens.
Additionally, some items such as breads, pizza dough, gelato and ice-cream were ordered in. She would be involved in the preparation of those as menu items.
She says that after she gained some experience at the restaurant she assisted in training more junior staff. For instance, she stated that Mr Sanford might ask her to show another employee how to perform a particular task, or other employees might have asked her to show them how to do something. She says that in this way she remembers assisting Mr Sanford to train one of the apprentices and another employee who was also an overseas student and at that time had not finished a cookery course. She says that after about three or four months of working at the restaurant she asked Mr Sanford if she could learn more and do more in the kitchen. She says that he agreed to teach her and that following that discussion they would sometimes swap roles in the kitchen; Mr Sanford would prepare entrees and simple dishes while Ms Sagi did main dishes and effectively ran the kitchen. She says that after sometime she requested a letter from Mr Sanford outlining her duties so that she could submit it in support of her visa application. She says that Mr Sanford agreed to provide such a letter and accordingly she prepared a draft which outlined the duties she had performed. Subsequently Mr Sanford agreed with its content and had it printed on a business letterhead of the restaurant which he signed. While an issue arose concerning Mr Sanford’s authority to use the restaurant’s letterhead, nothing turns on that controversy.
During the course of her employment Ms Sagi was initially paid at the rate of $9.25 per hour. She did not receive any additional loadings. At first she was satisfied with the money, believing it to be the appropriate pay. However, after a short time she became aware from other employees that she was not being paid at the correct rate. She said that she spoke to one of the chefs, although she could not recall which, who advised her that he would speak to Ms Ghag on her behalf. She said that he later reported back to her, stating that after talking with Ms Ghag she had agreed to increase the rate of pay. Ms Sagi says she subsequently noticed on her payslip that her hourly wage had increased to $11.70 per hour. This first occurred for the pay week commencing 26 February 2008.
Notwithstanding the increase in pay, she was still suspicious that she was being underpaid. Ultimately she viewed the Collective Agreement and saw that the rate she was being paid was less than the rate she believed she ought to have been paid. Rather than engage in conflict with the Employer, she decided to resign and find another job.
Accordingly, on or about 16 March 2008 she gave the Employer two weeks’ notice of her intention to resign and ceased employment on 5 April 2008.
She subsequently became aware of the role of the Fair Work Ombudsman and made a complaint to it on 14 October 2010 concerning her employment and the underpayments. In her statement of complaint, she said:
“After I finished my college I’d already had commercial cookery Cert III. I found cook job in Rue de Paris. I’d received only $9.25 in a beginning. I’d worked as $9.25 for 448.35 hrs and I also I’d been working as $11.70 hourly rate after I got pay raise. At the time I didn’t know that I deserved to receive over $15. Because I had no experience.”
The Employer has defended the application, contending that the rate of pay was appropriate as Ms Sagi was employed as a “cook in training.” It denies that it breached clauses 5 and 17 of the Collective Agreement, stating that it paid “Ms Sagi based upon the information obtained from Ms Sagi and upon the advice it received and relied upon as to the correct way to pay an employee in the circumstances of Ms Sagi namely, as advised by Ms Sagi to the Second Respondent, an international student employee in training but not yet holding any qualifications who needs to complete a number of hours of work before being able to complete any training qualification.”[3]
[3] Amended Defence filed 18 April 2013 at [11].
Basis for claim
The Applicant claims for the imposition of penalties pursuant Part 14 – Division 2 WR Act. It alleges that the Collective Agreement is a “workplace agreement” pursuant to s.347 of the WR Act, being an enterprise agreement that provided the terms and conditions governing employees of the restaurant. Its terms set out the basis for classification of employees and the wage payable in respect of each such classification. The terms of the Collective Agreement were “applicable provisions” within the meaning provided for in s.717 WR Act. An eligible Court may impose a penalty on a person if a person is bound by an applicable provision and the person breaches the provision: s.719 WR Act.
Multiple contraventions are alleged by the Applicant. However, each contravention has its genesis in the Employer’s classification of the employee, Ms Sagi. Although two or more breaches are alleged, arguably they appear to arise out of a common course of conduct, and accordingly for the purposes of s.719(2) WR Act it could be taken to constitute a single breach of the term. That follows as all underpayments, irrespective of how they may be calculated, have their genesis in the Respondents’ interpretation of the award and the determination to pay Ms Sagi the rate of $9.50 per hour as opposed to the appropriate rate applicable under the Collective Agreement, as is determined hereunder.
The Collective Agreement
The Collective Agreement provided a “Classification Structure” and “Wage Rates” which informed payments due by the Employer to Ms Sagi. Relevantly, it observed:
“14. CLASSIFICATION STRUCTURE
Definitions of Classes of Work:
An employee will be appointed to one of the following levels and this will determine the pay rate applicable to the work performed. If an employee is given work of a higher grade, then that employee shall be paid at the higher rate of pay for the hours worked at the higher grade.
The levels are as follows:
Level
Indicative Tasks and Accountabilities
RdP Level 4
– Supervision and training of employees of a lower level under instruction from a manager or high level employee
– Maintaining stock and other records
– Monitoring dress standards of employees of lower levels
– Monitoring product quality and standard of food provided to customers
– Carrying out all duties required of lower level employees as required
– Performing any other duties commensurate with the employee’s ability and level of training as required
– Controlling stock and carrying out administrative tasks under instruction from the manager
– Providing excellent customer service
RdP Level 5
– Shall mean an employee who has the appropriate level of training and who is engaged in any of the following;
– Cooking duties, baking, pastry cooking or butchering
RdP Level 6
– Work at this level shall mean an employee who has completed an apprenticeship or who has passed the appropriate test, and who is engaged in nay [sic] of the following;
– Cooking, baking, pastry cooking or butchering
– Supervision and training of other cooks or kitchen employees.
The Collective Agreement continued to provide for relevant wage rates applicable to the levels. Relevantly, it provided:
“15. WAGE RATES
The minimum rates of pay for adults shall be the following:
Level
Weekly
Hourly
Casual
RdP Level 4
544.54
14.33
17.20
RdP Level 5
544.54
14.33
17.20
RdP Level 6
601.33
15.82
18.99
The wage rates as set out above represent an increase of 4% above the rates prescribed by the Hospitality Industry, Restaurant, Catering and Allied Establishments award – South Eastern Division 2003. Unless specified otherwise, the hourly rate of pay is inclusive of all penalties associated with week-end work, work on public holidays, monetary allowances, holiday loading, overtime. This agreement conforms to the Australian Fair Pay and Condition Standards.
…”
Clause 15A of the Collective Agreement applies to apprenticeships. Materially it provides that apprentices shall receive a percentage of the RdP Level 6 rate plus 4% as follows:
Year 1 40%
Year 2 55%
Year 3 75%
Year 4 90%It is not in issue that in this case the requisite skills or duties undertaken by Ms Sagi did not qualify her for classification in accordance with RdP Levels 1, 2 or 3, although the Applicant contended for an alternative case, suggesting the application of the RdP Level 1 classification for a limited period. For reasons which follow I do not consider it necessary to address the alternative case contended for by the Applicant.
Alleged underpayments
In its Amended Statement of Claim the Applicant alleges underpayments on a number of alternative bases:
a)Ms Sagi ought to have been paid as an RdP level 5 employee, she being an adult, non-apprenticed employee as prescribed by clause 15 in conjunction with clause 17 of the Collective Agreement. RdP Level 5 classification under the Collective Agreement was equivalent to a Cook Grade 2 classification under the Hospitality Industry - Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 (“Hospitality Award”). At the relevant time the appropriate hourly rate for such a classification was $14.77. When allowance is made for the clause 17 uplift, a RdP Level 5 classification employee pursuant to the Collective Agreement was entitled to an hourly rate of $15.36. That was as in contrast to the flat rate of $9.25 paid by the Employer to Ms Sagi between 24 October 2007 and 11 February 2008, and then $11.70 from 12 February 2008 to 5 April 2008.
b)Alternatively, Ms Sagi was a RdP Level 3 classification employee under the Collective Agreement, being equivalent to a Food & Beverage Attendant Grade 2 classification under the Hospitality Award. As such an employee she would have been entitled to $14.75 per hour.
c)Further and/or alternatively to (a) above, Ms Sagi was a RdP Level 1 classification employee under the Collective Agreement which was equivalent to the introductory level classification under the Hospitality Award. The only rate applicable to such an employee under the Collective Agreement was $14.29. This alternative would apply in the event Ms Sagi did not have the requisite minimum three months experience directly relevant to her position before commencing employment. In those circumstances she would have been eligible for three months’ pay at the RdP Level 1 classification and thereafter at the RdP Level 5 classification.
d)Alternatively to (b) above, if Ms Sagi did not have the requisite minimum three months experience directly relevant to the position in which she was employed, she was entitled to be paid at the RdP Level 1 classification for the first three months and thereafter at an RdP Level 3 classification.
In addition to general underpayments, the Applicant also contends that the Employer failed to pay Ms Sagi a casual loading of 20% provided for by clause 6 of the Collective Agreement.
I note from the Respondents’ submissions that there was no challenge to the arithmetic associated with each computation alleged in respect of such complaints. The Respondents’ contentions focused solely upon the issue of classification and whether or not they were reasonable in concluding, as they did, that the rates of $9.50 per hour, and subsequently $11.70, were appropriate.
Classification under the Collective Agreement
The principles governing the construction of awards are set out in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, where at 438 French J (as his Honour then was) observed:
“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to “… the entire document of which it is a part or to other documents with which there is an association.” It may also include “… ideas that gave rise to an expression in a document from which it has been taken” — Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).
…
[57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.””
This approach now appears to be universally accepted: Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 per Gleeson CJ and McHugh J at 249; Kirby J at 267 and 270; Callinan J at 283.
Clause 14 of the Collective Agreement prescribes that an employee will be appointed to one of the levels contained within that clause. That level would determine the rate of pay applicable to the work performed. It is to be noted that the Collective Agreement did not make any provision for the employment of trainees although it did make provision for apprentices and juniors. It is that lacuna that appears to have given rise to the difficulties in this instance.
Ms Sagi’s letter of appointment stated:
“Your principal duties would include those set out in the above-mentioned Agreement associated with you [sic] level of experience and the attached Job Description. In addition there may be other duties deemed necessary from time to time.”
It is noteworthy that the letter of offer did not include either a duty statement or a reference to further details in the Collective Agreement.
I have detailed her duties and equipment used earlier. I note that the preparation of those items is consistent with some of the duties she undertook in the course of her work experience with Hilton Hotel (Brisbane), Stamford Plaza (Brisbane) and Spotless Services. There was no evidence concerning her inability to undertake those tasks and I am satisfied from Mr Sanford’s evidence she was able to undertake those tasks competently and without difficulty.
For the purposes of clause 14 of the Collective Agreement, the “RdP Level 5” classification means an employee:
“ … who has the appropriate level of training and who is engaged in any of the following;
– Cooking duties, baking, pastry cooking or butchering”
In this application two issues arose. The first was whether the employee had the appropriate level of training, and the second concerns the nature of the duties.
The Collective Agreement was silent on what constitutes “the appropriate level of training.” The Macquarie Dictionary defines “appropriate” as “suitable or fitting for a particular purpose, person occasion, etc.”[4] At the time Ms Sagi applied for the position she had successfully completed the ADHM, which had embedded in it the Cert III.
[4] Macquarie Dictionary (Macquarie, 3rd ed, 1997).
Mr Quentin Underhill, Manager of Student Concierge Services for Russo Higher Education, commented upon these matters. He is a cook by trade who after many years of employment as a cook and chef transitioned into training. In the course of his training activities he has been involved in the training of four to five hundred apprentices and up to 900 international students. He stated that Sarina Russo Schools Australia is a registered training organisation under the Australian Quality Training Framework and was so at the time that Ms Sagi obtained her qualification. He examined her academic transcript, which he was satisfied was both authentic and accurate. He stated that the ADHM and the Cert III were awarded to her on 16 August 2007. He stated that the qualifications were awarded on the same day because the Cert III is “embedded” within the ADHM. That is, Ms Sagi has all the competencies that must be completed to obtain the Cert III as they are core competencies in the ADHM. He stated that the Cert III is the accepted qualification for cooks in the Australian hospitality and tourism industry. Further, he opined that the qualification was premised upon a training package based upon national industry competency standards. He expressed the view that the achievement of the competencies provided for in that course would have demonstrated an appropriate level of training to enable a person to perform “cooking duties, baking, pastry cooking or butchering.” Given his professional background training and experience in both the practical and theoretical aspects of cookery and cookery training, I accept that he has specialised knowledge of these matters and is qualified to express an opinion in respect of them: s.79 Evidence Act 1995 (Cth). In particular, I note his evidence that given Ms Sagi’s vocational placement hours in the Cert III and the ADHM he considered that experience would have ensured that she was “over-and-above the requirements to obtain the competencies contained within the [Cert III and the ADHM].”
He noted in his evidence the different pathways to achieve the qualifications. For instance, he observed that an apprentice may ultimately achieve a trade qualification which a person such as Ms Sagi would not, but despite the different pathways the qualifications were the same.
The Applicant contended that the difference between a “trade” qualified cook and one who becomes qualified through a “fee for service” program provided by an accredited training body is recognised in the Collective Agreement. In the Collective Agreement the RdP Level 6 classification provides:
“ Work at this level shall mean an employee who has completed an apprenticeship or who has passed the appropriate test, and who is engaged in …
– Cooking, baking, pastry cooking or butchering”
[Emphasis added]
It was submitted on behalf of the Applicant that some guidance as to what is meant by the phrase “appropriate level of training” employed in clause 14 could be obtained from a consideration of other industrial instruments. For example, in the Hospitality Award clause 5.1.4 provides:
“5.1.4 Appropriate Level of Training shall mean:
(a) completion of a training course deemed suitable according to guidelines issued through Tourism Training Australia for that particular classification. After 1 June 1991, such course to be accredited by the Australian Hospitality Review Panel;
…”
It was submitted that if guidance was to be obtained from clause 5.1.4 of the Hospitality Award then all that is required to be established to demonstrate the “appropriate level of training” is that the relevant person has completed a relevant “training course.” For the classification of “Cook Grade 2,” the appropriate level of training required for by the Hospitality Award is:
““Cook Grade 2” shall mean an employee who has the appropriate level of training and who is engaged in any of the following:
- cooking duties including baking, pastry cooking or butchering;
- setting up of an on site kitchen.”
Given the principles to be adopted to the construction of industrial instruments as detailed earlier, the Collective Agreement must be considered in the context of the hospitality industry. The default position in the hospitality industry is identified in the Hospitality Award. It is to be expected that unless it is otherwise stated the use of terms should enjoy a common meaning. With that in mind I consider it appropriate to interpret the terms “pass the appropriate test” and “completion of a training course” as having a common meaning.
I accept the Applicant’s submission that there are clear similarities in the wording of the classifications for “Cook Grade 2” and an “RdP Level 5” employee. Accordingly, I accept its contention that it is open for the Court to interpret the term “appropriate level of training,” as is found in the Collective Agreement, similarly to the meaning that should be applied to the classification in the Hospitality Award. That is, the “appropriate level of training” is met upon the completion of a prescribed course. Importantly, and contrary to the position advanced by the Employer, nothing within either the Hospitality Award or the Collective Agreement seeks to restrict the interpretation of that term by requiring the employee to work unsupervised, perform complex or main meal cooking, to have a minimum amount of on the job experience post-qualification, or to have been subjected to some other form of assessment. It submitted, and I accept, that this is consistent with the fact that by successfully completing a Cert III a student has already undertaken a significant amount of practical work in both the classroom and in commercial kitchens, as was explained by Mr Underhill. Furthermore, a Cert III is an accepted qualification for cooks in the Australian hospitality and tourism industry. Upon that basis I accept that as Ms Sagi had completed the Cert III and the ADHM she did possess the “appropriate level of training” within the meaning of the Collective Agreement and it follows that, in principle, she satisfied the RdP Level 5 classification.
Accepting that matter, the second issue to be considered is whether or not her duties included “cooking duties, baking, pastry cooking or butchering.” I have earlier outlined the duties which Ms Sagi said that she undertook. I have no reason to doubt that she undertook those duties and that she did so competently. Mr Sanford, who was the principal chef at the restaurant, gave no evidence to the contrary. Indeed, he said that he did not regard Ms Sagi as a trainee; his evidence that he did not have to teach her skills as a cook is corroborative of that matter. In particular, I accept his statements that Ms Sagi was not treated like a junior apprentice in the sense of an inexperienced person, but that rather he initially treated her similarly to an apprentice who was near the end of the four year apprenticeship and who was almost a qualified chef. That was entirely consistent with his evidence that he had Ms Sagi undertake duties involving direct responsibility for meal preparation without supervision on those occasions when she was not subject to supervision in accordance with the roster. It is also consistent with his view that he did not feel the need to closely supervise or scrutinize every meal that she prepared, and that he was confident that she could prepare meals without his immediate oversight. His conclusion was that she was responsible for meal preparation without supervision from an early stage in her employment.
Other evidence corroborative of her skills includes Mr Sanford’s undated letter of 6 April 2008. Although there was controversy concerning the fact that this letter appeared on the Employer’s letterhead, there is, in my view, no issue concerning its contents. In it Mr Sanford noted that Ms Sagi had worked as a “casual position cook” for him and other chefs and noted the extensive list of foods which she had prepared. Those duties would readily satisfy the description of “cooking duties” even if a narrow construction of that term was to be applied to the Collective Agreement. I make that observation as it was submitted for the Respondents that Ms Sagi “undertook lighter cooking duties.” The relevant classification does not seek to distinguish between “lighter” as opposed to more sophisticated cooking duties. In any event, as was contended for by the Applicant, and is consistent with the evidence of Mr Underhill, the duties of a cook involved competencies beyond cooking. They also involved organising and preparing food, receiving and storing kitchen supplies, cleaning and maintaining kitchen premises and following appropriate workplace hygiene procedures.
Finally, it was submitted on behalf of the Respondents that what was required of Ms Sagi was that she be engaged in all of the duties including “cooking duties, baking, pastry cooking or butchering.” That is not consistent with the classification. Not only was the classification expressed to require that the employee engage in “any” of the listed duties, but the duties themselves were expressed disjunctively with the disjunctive “or” positioned between the last two duties listed. In my view, upon the proper construction of the award there is no licence to read into it a requirement that the employee had to be engaged in “all” the duties referred to in the classification to be captured by it. It follows that I am satisfied that the appropriate classification for Ms Sagi was the RdP Level 5 classification.
The Applicant had contended a number of other classifications, as identified earlier. However, having determined that Ms Sagi’s duties involved “cooking duties,” among other things, she was not appropriately classified at the RdP Level 2, 3 or 4 levels. Further, given that she was not generally involved in the “supervision and training of other cooks or kitchen employees,” she was not appropriately classified at the RdP Level 6 classification.
However, a question does arise as to whether she ought to have spent three months at the RdP Level 1 classification. That is the classification that is applicable for employees without the equivalent of a minimum of three months experience directly relevant to the position.
There is clear evidence that Ms Sagi had undertaken a significant amount of unpaid work experience in commercial kitchens whilst she was studying for the ADHM. I accept that the evidence demonstrates that she had obtained over 971 hours of work, of which only 90 hours were counted towards her vocational placement requirements for the ADHM. The letters from the various work experience employers addressed the nature of the duties that she undertook. I accept the description that she worked either as a cook or assistant chef in the performance of those duties.
Accepting a 40 hour week, 971 hours of work equated to approximately six months work experience. Plainly, if her only experience had been limited to the hours of work experience necessary to obtain the ADHM qualification, matters may have been different. Arguably it was with such a matter in mind that the Collective Agreement provided for remuneration at the RdP level unless an employee had a minimum of three months relevant experience.
The Respondents contended that the duties undertaken on an unpaid basis were not “directly relevant” to her position as a cook at the restaurant. I reject that submission. For instance, when employed at Spotless Services she was engaged for 229 hours. A letter from that company noted that she had been “working as a cook” and had completed tasks including the preparation and cooking of “deep fried fishes, mash potatoes, salads, curries, pastas, sandwiches and hamburgers.” It was noted that she undertook other duties associated with cooking, including examining foods to ensure quality, seasoning foods, plating up and garnishing meals, food storage, food preparation and menu planning.
She was also conducted work experience at Joseph Alexanders restaurant in Brisbane. There she was employed for 8.63 hours, during which time her duties included “carried out cooking tasks in a safe manner.” At that business she was also required to examine food, clean food equipment and kitchens to maintain a safe and hygienic workplace and store, make and plate sandwiches for presentation.
She also worked at the Hilton Hotel (Brisbane) for 195 hours. During that time she was noted have to been employed “as a cook,” during which her tasks including, inter alia, “assisting chefs with basic preparation, including cutting large amounts of vegetables, seafood, trimming meat and poultry at a required standard.” As her proficiency improved it was noted that she undertook a broad variety of commercial kitchen duties, which included “carrying out cooking tasks in a safe manner.”
I am satisfied that the duties she undertook at the various work placements were not only directly relevant to the position of cook at the Employer’s restaurant but also included cooking. It follows that I am satisfied that at the time that she commenced with the Employer she had the equivalent of “a minimum of three months experience directly relevant to the position in which she was employed.”[5]
[5] Amended Defence filed 18 April 2013 at [11B].
Accordingly, Ms Sagi was entitled to be remunerated consistent with the RdP Level 5 classification from the time she commenced with the Employer.
Respondents’ Defence
The Employer contended that it paid Ms Sagi on the basis of the information obtained from her and upon advice received by it as to the correct pay entitlements for employees in the circumstances of Ms Sagi, namely as an “international student employee in training” but one not then holding qualifications and who needed to complete a number of hours of work experience before being able to complete any training qualifications.[6] Three issues arose on the Respondents’ defence. They are:
a)The information provided by Ms Sagi concerning her qualifications and experience;
b)Ms Sagi’s requirement to complete a number of hours of work; and
c)The worth and relevance of the advice received by Ms Ghag concerning the appropriate award.
[6] Amended Defence filed 18 April 2013 at [11].
Information provided by Ms Sagi
Ms Ghag says that Ms Sagi did not tell her at any time that she had a cooking qualification, but stated that she needed experience as a cook to get her qualification. Ms Ghag said that she concluded that Ms Sagi could fit in with the work environment at the restaurant and, as she had a position for a cook available at the time, she arranged for Ms Sagi to have a trial. Curiously, I note Ms Ghag’s evidence that when employing an applicant for the role of cook it was impossible to do so without the applicant undergoing a trial to assess the applicant’s level of skill. From Ms Ghag’s evidence it appears Ms Sagi initially attended the restaurant and was requested to later return for a trial. This is not consistent with Ms Sagi’s recollection. She says that she was instructed and trialled on the same day, that being her first day of inquiry.
I prefer Ms Sagi’s recollection of these matters to Ms Ghag’s. Ms Ghag said that she was not advertising for a cook at the time of these events. That evidence is entirely inconsistent with her evidence that the restaurant was a busy one and that she was in fact in need of a cook, as well as the evidence of Mr Sanford that the restaurant was short staffed and, by inference, required an additional cook. Therefore, if Ms Ghag’s business was busy it seems obvious that she would have needed another cook. If she did so, and a prospective employee applied seeking to fill the position, then, all other matters being satisfied, it stands to reason that in the circumstances the prospective employee would have been assessed the prospective employee as soon as possible. Ms Sagi arrived at the restaurant looking for a job. She was anxious to secure employment. She would have been prepared for an interview as she says she was. That preparation would include Ms Sagi having with her a resume and, as she says, a cover letter. Her evidence sounds much more plausible than Ms Ghag’s, and accordingly I prefer it. Furthermore, Ms Sagi’s chronology has support from the objective facts. The letter of offer was dated 24 October 2007. That is four days after she says she had the interview and trial. On Ms Ghag’s chronology it appears Ms Sagi was interviewed, assessed and employed on the same day. Although this is possible, I think it an unlikely scenario given that, on her version, she was not in any particular hurry to engage a cook. She says that at the time of arranging the trial and under the supervision of Mr Sanford she told him that Ms Sagi was in training as a cook and needed to work to complete the hours that she needed. Ms Ghag said that Mr Sanford told her words to the effect that Ms Sagi did not appear to have much of a skillset or show much experience, but that he felt that if he worked with her she could be trained as a qualified cook.
Two matters require comment. First Mr Sanford’s recollection diverges from that of Ms Ghag on the matter of her apparent experience. He had no specific recall of how well she did in her trial but thought that it must have been satisfactory because she was employed. More significantly, he recalls Ms Ghag saying to him that Ms Sagi had already done training as a cook and therefore would be more experienced than other potential candidates; accordingly, she would require less training.[7] I prefer Mr Sanford’s evidence as being more reliable than Ms Ghag’s. He was independent of the parties and has no interest in the outcome of the litigation.
[7] The reference to other potential cooks (or candidates) confirms that the Employer was indeed actively engaged in recruiting a cook. It was not the case that there was no imperative to employ a cook, as Ms Ghag’s evidence suggests.
Secondly, Ms Ghag did not produce the only other witness available on her version who would have lent support: her accountant. No explanation was given for this. In the circumstances I infer that he would not have given evidence to support Ms Ghag if called: Jones v Dunkel (1959) 101 CLR 298.
She says that, consistent with customary employee induction, she completed an employee induction program checklist on that day (24 October 2007) which included a letter of offer noting that Ms Sagi was being offered employment as a casual “International Cook in Training.” I note that the words “in Training” where they appear after the words “International Cook” appear to be in a lighter coloured pen, but are of similar handwriting.[8]
[8] See [68] below.
She says that she specifically recalled referring to Ms Sagi being called an “International Cook in Training” in her discussions with her and that she explained to her that on that basis she would be paid $9.25 an hour. Ms Ghag says that had she known at the time that Ms Sagi had applied for the job with the Employer that she had completed a cooking course she would not have been prepared to offer her a position other than at an introductory level 1 under the Collective Agreement due to her lack of experience. She observed that she employed a head chef who was trade qualified and that other cooks were employed at a lower level depending on their duties in accordance with the classification table provided for in the Collective Agreement. Further, she said that junior employee rates are provided for in the Collective Agreement at a percentage level of the level 6 rate in accordance with their level of apprenticeship. She said that it was upon that basis that Ms Sagi’s pay rate was assessed.
Ms Ghag says that during her employment Ms Sagi was treated similarly to an apprentice. She stated that she was rostered on shifts to help the chefs or cooks who had responsibility for the preparation of meals. She stated that Ms Sagi did not ever have that responsibility except under supervision. She stated that she did not work shifts where she was not supervised by one of the chefs or, on some occasions, a temporary chef or experienced cook. She said that on those other occasions when she was not supervised she was not undertaking strict duties as a cook but rather minor tasks which required no supervision, such as the preparation of simple meals that required heating up and other food preparation.
Ms Ghag says that initially Ms Sagi was paid $9.25 per hour but this rate was subsequently increased to $11.70 an hour following discussions with Mr Sanford, who indicated that Ms Sagi was progressing due to her cooking experience at the restaurant and that she had improved to the point where she was able to carry out a broader range of duties.
I have earlier addressed other circumstances preceding Ms Sagi’s employment, and I accept her evidence that she was informed by a friend that the restaurant was looking for a cook and she then applied for that position. At the time she had been generally seeking employment in that capacity and had prepared a resume for presentation to prospective employers. I have no reason to disbelieve her evidence in respect of that manner; it accords with common sense and experience. She frankly admitted that she had a number of versions of her resume which had been prepared at about that time and was uncertain as to which she had presented to Ms Ghag. Three versions were included in her evidence. While there were subtle differences between them, a number of matters were common. They include the reference to her unpaid work experience as a cook and references from the various employers with whom she had undertaken unpaid work experiences duties. Although Ms Ghag does not recall receiving a resume, and says that she would have placed it in her records had she received one, I prefer the evidence of Ms Sagi on this point. I am satisfied that Ms Sagi did provide Ms Ghag with a resume in one of the three versions attached to her affidavit. In particular, I am also satisfied that the resume was under cover of a generic letter which she had prepared. Given that Ms Sagi was actively looking for employment, I think it is more probable or not that, consistent with her general search for employment, she would have prepared multiple copies of a generic letter and a resume which is referred to as an attachment to that letter. As the Employer was merely one of many businesses to which Ms Sagi says she had applied, I accept it as understandable that she would simply have handed this documentary package to Ms Ghag in the course of her initial interview without regard for the identification of a specific employer.
In her evidence Ms Ghag says that Ms Sagi did not tell her that she held any cooking qualifications, but says that she recalls being told that she needed experience as a cook to get her qualifications. That is inconsistent with both the evidence of Ms Sagi and the documentation.
Given that the Employer was looking for a cook and that Ms Sagi was trialled in that capacity, I consider Ms Ghag’s evidence that she did not make either a more cursory inquiry of Ms Sagi’s qualifications and experience for the position of the cook as completely unbelievable. I find that lack of inquiry particularly incredible given Ms Ghag’s statement that she recalled Ms Sagi informing her that she needed experience as a cook to get her qualifications. Given that information it would be expected that a reasonable employer might enquire as to what qualification was being perused and how much experience may be needed to acquire it. On Ms Ghag’s evidence the Court is left to expect that those two questions were considered unnecessary. I note that in her response to questions from the Applicant’s investigators. She says that these’ve events now constitute a “lesson learned”. I do not accept her statement to that effect to the inspector as truthful.
Ms Ghag operated a busy and apparently successful restaurant. The previous year she had negotiated a Collective Agreement. I am satisfied that she had more than a passing acquaintance with industrial relations matters. That would include making adequate inquiries of prospective staff before employing them.
As I am satisfied that Ms Sagi provided both her covering letter and resume to Ms Ghag, it ought to have been plainly obvious to Ms Ghag that Ms Sagi was a graduate of the ADHM and had worked as a cook. Further, her assertions were refereed by both a staff member at Sarina Russo Schools Australia and at least one and perhaps three chefs, depending upon which version of resume was supplied.
I reject Ms Ghag’s evidence that Ms Sagi stated that she was an international student employee in training not yet holding any qualifications.
The need to work more hours to complete qualifications
It was also contended on behalf of the Respondents that at the time of interview Ms Sagi informed them that she needed to complete a number of hours of work before being able to complete any training qualifications.
At the time Ms Sagi applied for the position at the restaurant she needed approximately 500 hours more work experience as a cook to support her Subclass 880 visa application. As addressed earlier I am satisfied that she had undertaken all the necessary prevocational work experience to qualify as a cook. Her shortage of hours impacted her visa but not her qualifications. That is a matter concerning which I expect Ms Sagi would have had an acute appreciation. Ms Ghag acknowledges that Ms Sagi stated that she needed about 500 hours’ work, but that she needed it to complete her qualification. That was simply not the case and I do not accept Ms Ghag’s evidence on that point. I am satisfied that Ms Sagi told Ms Ghag that she required 500 hours’ work in order to satisfy her visa qualifications, and for no other reason.
Information concerning way of paying an employee
Ms Ghag said that she concluded from the trial that Ms Sagi was not a qualified chef. She says that she believed Ms Sagi to have been a trainee. She noted that her restaurant did not provide positions for apprentice chefs and that as at October 2007 she had not previously employed anyone in a cook position who had come from overseas and was studying cookery. Accordingly, she said she was not sure what to do about Ms Sagi’s rates of pay. She noted that there was no specific classification for a trainee under the Collective Agreement. By contrast she observed that apprentices do four years on the job training as well as structured study at TAFE, so she thought there may be some similarity between that program and Ms Sagi’s circumstances.
She says that because of her doubts she telephoned the Southbank Institute,[9] which she usually dealt with regarding training for apprentices, and spoke with Ms Alison Eccles, who was a Training Consultant. She says that after speaking with Ms Eccles she was referred to Mr Steven Schumann, who trained international students and helped them with work placements. She says that she believed from Ms Eccles’ comments that Mr Schumann would be the appropriate person to advise her on these matters. She says that when she spoke to Mr Schumann a conversation to the following effect occurred:
Ms Ghag: “I have a cook who I want to employ and she is a student from overseas and she needs to do hours.”
Mr Schumann: “They are like apprentices but you can’t call them that as they have no formal agreement … call them an international cook in training … they are not apprentices.”[10]
[9] A Queensland Government TAFE facility.
[10] Affidavit of Jasbir Kaur Ghag sworn 5 April 2013 at [29].
She says that he advised that the wage rate to be paid should be similar to apprentices but slightly higher. She says that as a consequence of that conversation she asked her bookkeeper to check the Collective Agreement and determine the appropriate wage for Ms Sagi at a rate above the apprentice’s wage. Ms Ghag says that at no time prior to her employment did Ms Sagi provide to her a copy of her results from Sarina Russo Schools Australia, nor a copy of her Cert III. Nor did she ever provide the work experience letters from Spotless Services, Joseph Alexanders, Stamford Plaza or the Hilton Hotel.
The Employer’s case on this point was riddled with inconsistencies. First, it was accepted that the Employer employed Ms Sagi on a casual basis but in doing so failed to provide her with guaranteed hours during the course of her employment. It was conceded by Ms Ghag that the restaurant failed to enter into a formal training agreement with Ms Sagi and in doing so failed to take on any of the usual obligations to assist a trainee to complete training both on and off site. As the Applicant submitted, and I accept, on this basis the Employer sought to have the benefit of paying a reduced rate of pay without undertaking any of the obligations associated with employing a trainee in justification of such a reduced rate.
The second assertion made on behalf of the Employer was that Ms Sagi was employed as an “International Cook in Training.” Ms Ghag says that because she was uncertain as to how she should pay Ms Sagi she contacted an officer of the Southbank TAFE, Mr Schumann, and sought advice. She says that she first spoke to Ms Eccles at the Southbank TAFE, who put her onto Mr Schumann. I note that Ms Eccles does not ever recall having such a conversation. Furthermore, she says that she would never have told Ms Ghag that Mr Schumann dealt with international students, because that was not his job. Likewise, she would not have told her or suggested to her that Mr Schumann could advise her on what international cooks should be paid, because, again, that was not his role. Ms Eccles’ evidence was that had she been approached on this issue she would have informed the caller to consult the relevant government or industrial relations authorities.
Ms Ghag says that she settled upon the classification of “International Cook in Training” as a consequence of discussions with Mr Schumann. Mr Schumann gave evidence that he did not recall any such conversation with Ms Ghag about students from overseas and what to pay them. He denied that Ms Ghag had used the term “International Cook in Training” or that he would have told Ms Ghag that the appropriate wage rate for such an employee “should be similar to apprentices, but slightly higher.”
Neither Ms Eccles nor Mr Schumann have any interest in these proceedings. Their evidence appeared quite credible, and I have no reason to disbelieve them. They were impartial and knowledgeable witnesses in respect of their own areas and the statements attributed to them were inconsistent with their knowledge. While it is entirely possible that Ms Ghag spoke with those two persons, she has either misconstrued or misunderstood the matters related by them to her. I prefer their evidence to hers and reject her evidence that she relied upon information provided by them as to the correct pay for an employee in the circumstances of Ms Sagi.
Other contraventions
Given my findings concerning Ms Sagi’s appropriate classification under the Collective Agreement, I am satisfied that Ms Sagi was underpaid for the duration of her employment by the Employer as she was entitled to be paid $15.36 an hour between 24 October 2007 and 5 April 2008 instead of the rates that were paid, namely $9.25 an hour from 24 October 2007 to 11 February 2008 and $11.70 an hour from 12 February 2008 to 5 April 2008. In addition, throughout that period Ms Sagi was entitled to be paid the casual employee uplift of 20%.
Accessorial liability of the Second Respondent
Section 728 of the WR Act provides:
“Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.
(2) For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
Ms Ghag was at all times a director of the Employer. It is clear from her evidence that she had a hands-on role managing the restaurant, that she was responsible for hiring staff and, in particular, that she hired Ms Sagi. Although she relied upon the advice of Mr Sanford concerning Ms Sagi’s suitability, she ultimately made the decision to employ her. More significantly, Ms Ghag made the decision to initially pay Ms Sagi the rate of $9.25 per hour and then from 12 February 2008 to increase that to $11.70 per hour. In making that decision she says she was assisted by information provided by Mr Schumann. I have earlier determined that Mr Schumann did not provide her with any such information. In any event, the fact remains, irrespective of whether she had sought assistance from a third party or otherwise, that the decision to pay the rates that she set was her own. Paying those rates was in contravention of the Collective Agreement. That contravention occurred because she misconstrued or ignored the Collective Agreement. In that regard she was an intentional participant in the Employer’s contraventions and was by her actions directly and knowingly concerned in the contraventions. As was submitted by the Applicant, she was involved in drafting the Collective Agreement and accordingly ought to have been aware that it did not contain any provision for a classification of an employee as a “trainee.” The fact that she chose to pay Ms Sagi a rate that was even less than the rate provided for a RdP Level 1 classified employee, which incidentally was only slightly more than the rate applicable to a second year apprentice, suggests that there was no apparent reason to the pay rate selected. That fact confirms my view that Ms Ghag’s conduct was intentional. It follows that she had knowledge of the essential facts constituting the contravention and was “an intentional participant”: Yorke v Lucas (1985) 158 CLR 661 at 670.
Ms Ghag’s evidence was that when she interviewed Ms Sagi she would not have enquired further about the nature of the Cert III and her experience to enable her to form an informal view as to the appropriate classification. It was submitted for the Applicant, and I accept, that this evidence was unbelievable. This was particularly so as I accept that she had been told by Ms Sagi that she had her Cert III and had undertaken work experience. Furthermore, even if I were to accept Ms Ghag’s evidence on this point (which I do not), I accept the force of the Applicant’s submission that it beggars belief that at some stage after Ms Sagi had commenced employment with the Employer that these matters would not have been discussed, particularly after it would have been apparent that she was able to perform her duties at a reasonably high level.
I am satisfied that Ms Ghag had sufficient knowledge of Ms Sagi’s qualifications and experience such as to know that the payment of $9.50 per hour was less than the sum to which she was entitled under the appropriate clause 14 classification. Ms Ghag’s knowledge of the essential facts that constitute the contravention render her culpable irrespective of whether she was aware that the matters in question constituted a contravention: Potter v Fair Work Ombudsman [2014] FCA 187, Dowling v Kirk [2007] FMCA 2106, Fair Work Ombudsman v McGrath [2010] FMCA 315.
I accept the Applicant’s submission that this is not a case where Ms Ghag was presented with a choice of two potentially relevant industrial instruments and made an honest but mistaken choice as to the one that applied. In this case no mistake reasonably could be made. Here she had been involved in drafting the Collective Agreement in the year prior to Ms Sagi’s employment; she provided a letter of offer of employment to Ms Sagi where she noted that “[Ms Sagi] will be employed under the terms and conditions of the Rue De Paris Collective Agreement (2006)”; and she acknowledged under cross-examination that the terms and conditions of Ms Sagi’s employment were to be found in the Collective Agreement. Despite those matters she unilaterally decided to create a new classification of employee that was not otherwise provided for in the Collective Agreement and to adopt a rate of pay which was significantly less than that which might otherwise apply to the lowest paid classification provided for in the Collective Agreement to an employee who is not an apprentice. I am satisfied that there can be no doubt that she knew that she was underpaying Ms Sagi by a considerable amount by reference to the rates of pay provided for in the Collective Agreement.
In summary, I am satisfied that she knew of the terms of the applicable industrial instrument and that they were not being met. I reject her contention that she acted on an honest but mistaken belief as to the facts. In my view she deliberately chose not to apply the Collective Agreement. At all times whilst doing so she was acting for and on behalf of the Employer.
Conclusion
The Applicant alleges that the First Respondent employer and Second Respondent director of the Employer have contravened the WR Act by underpaying an employee her hourly remuneration entitlements provided for in a Collective Agreement for a period of about six months. The Employer by its director responded, contending that the employee was not classified according to the Collective Agreement and accordingly it paid the employee remuneration based upon advice it had received from a third party.
Given the employee’s qualifications (which I find the Employer knew of at the time of employment); the nature of the duties undertaken by the employee in the course of the employment; and the Employer’s particular knowledge of the Collective Agreement, by reason of its then recent involvement in its drafting, I am satisfied that the Employer by its director knew that the remuneration that it was paying the employee was not in accordance with the Collective Agreement. Accordingly, I find that the Employer deliberately contravened the Collective Agreement. The Collective Agreement is a workplace instrument pursuant to the WR Act and its contravention is an actionable contravention under the WR Act. As the Employer was the alter ego for the director and acted by and through her I am satisfied that the Employer’s director, Ms Ghag, was a person knowingly and directly concerned in the Employer’s contraventions.
ORDERS:
THE COURT DECLARES THAT:
The First Respondent contravened:
(a)Clause 15, in conjunction with clause 17, of the Rue de Paris Collective Agreement 2006; and
(b)Clause 6 of the Rue de Paris Collective Agreement 2006;
which are “applicable provisions” for the purposes of s.718 of the Workplace Relations Act 1996 (Cth).
The Second Respondent was involved in the contraventions of the First Respondent referred to in Order 1 within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).
THE COURT DIRECTS THAT:
The matter be listed for a penalty hearing for not more than one (1) day in the Federal Circuit Court of Australia sitting at Brisbane on a date to be advised.
The Applicant file and serve upon the Respondents any submissions and/or evidence it intends to rely upon in respect of penalty twenty-one (21) days prior to hearing.
The Respondents file and serve upon the Applicant any submissions and/or evidence it intends to rely upon in respect of penalty fourteen (14) days prior to hearing.
The Applicant file and serve upon the Respondents any submissions and/or evidence in reply in respect of penalty seven (7) days prior to hearing.
The parties have liberty apply.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Associate:
Date: 14 May 2014
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