FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alvarez Nino v Kuksal (No 4) [2023] FedCFamC2G 1051
File numbers: MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021Judgment of: JUDGE FORBES Date of judgment: 24 November 2023 Catchwords: FAIR WORK – small claims procedure– multiple applicants –- where applicants claim underpayment or non-payment of wages and superannuation – whether applicants performed work as employees or independent contractors – whether applicants employed by respondent or corporations owned and controlled by the respondent - identity of true employer – whether applicants covered by fair work instrument – whether respondent liable as accessory if not the direct employer –whether declarations appropriate in small claim proceeding Legislation: Fair Work Act 2009 (Cth) s 12, 44, 45, 323, 357, 359, 536, 539, 545, 547, 548, 550, 557A, 557C
Federal Circuit and Family Court of Australia Act2021 (Cth) s 190, 192
Legal Profession Uniform Law Application Act 2014 (Vic) s 336
Cases cited: ACE Insurance Ltd v Trifunovski (NSD 1295 PF 2012) (2013) 295 ALR 407
Alvarez Nino v Kuksal [2022] FedCFamC2G 401
Alvarez Nino v Kuksal (No 2) [2022] FedCFamC2G 548
Alvarez Nino v Kuksal (No 3) [2022] FedCFamC2G 650
Casazza v McGuiness [2022] NSWSC 348
Central Innovation v Garner (No 4) [2020] FCA 1796
Construction, Forestry, Maritime, Mining and Energy Union vPersonnel Contracting Pty Ltd [2022] HCA 1
Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17
Damevski v Giudice (2003) 133 FCR 438
Director of the FWBII v McCullough [2016] FCA 1291
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
Fair Work Ombudsman v Devine Marine Group Ltd [2014] FCA 1365
Fair Work Ombudsman v Foot & Thai Massage [2021] FCA 1241
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
Fair Work Ombudsman v Hu [2019] FCAFC 133
Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934
Fair Work Ombudsman v Pulis Plumbing [2017] FCCA 3013
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37
Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174
Fair Work Ombudsman v Raying Holding Pty Ltd (No.2) [2017] FCCA 2148
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Golden Plains Fodder Australia Pty Ltd v Millard (2007) 99 SASR 461
Gothard v Davey [2010] FCA 1163
Hollisv Vabu Pty Ltd [2001] HCA 44
Humberstone v Northern Timber Mills [1949] HCA 49
Murphy v Chapple [2022] FCAFC 165
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366
Narich Pty Ltd v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597
Peckham v Moore (1975) 1 NSWLR 353
Pitcher v Langford(1991) 23 NSWLR 142
Re C&T Grinter Transport Services Pty Ltd (in liq) & Grinter Transport Pty Ltd (in liq) (controller appointed)[2004] FCA 1148
Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125
Spitfire Corporation Limited (in liquidation) v Aspirio Proprietary Limited [2022] NSWSC 340
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16
Division: Division 2 General Federal Law Number of paragraphs: 360 Date of hearing: 29-30 August 2022 Place: Melbourne Counsel for the Applicants: Mr S Bunce Solicitor for the Applicants: JobWatch Inc Respondent: In person ORDERS
MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WILMER JAHIR ALVAREZ NINO
First Applicant
ANA MELISA GARCIA CALVO
Second Applicant
JUAN CAMILO RIOS LONDONO (and others named in the Schedule)
Third Applicant
AND: SHIVESH KUKSAL
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.In each of the following matters -
(a)Mr Wilmer Jahir Alvarez Nino - MLG806/2021;
(b)Ms Ana Melisa Garcia Calvo - MLG807/2021;
(c)Mr Juan Camilo Rios Londono - MLG808/2021;
(d)Mr Juan Camilo Pineros Torres - MLG809/2021;
(e)Mr Leonardo Fabio Hernandez Alarcon - MLG810/2021;
(f)Ms Geraldine Torres Amezquita - MLG811/2021;
(g)Ms Carolina Corrales Rhenals - MLG812/2021; and
(h)Mr Nicolas Moreno Rivero - MLG813/2021
the Respondent pay compensation to the Applicants pursuant to section 545(2)(b) of the Fair Work Act 2009 (Cth) (FW Act) for the underpayment of wages and superannuation as claimed in their respective Amended Applications (compensation).
2.In each of the matters, the Respondent pay interest on the compensation calculated to the date of judgment pursuant to section 547 of the FW Act.
3.The representative of the Applicants and the Respondent confer with a view to bringing in by consent a form of order for each matter which reflects the compensation (including interest) payable pursuant to this judgment.
4.In the absence of agreement within 14 days of these orders, the parties shall file competing orders within seven days and the Court will determine any dispute and make final orders on the papers (final orders).
5.The Respondent shall pay each of the Applicants the compensation to which they are entitled within 28 days of the date of the final orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
The Parties
[11]
Nature of the applicants’ work
[27]
What contraventions are alleged under the FW Act?
[31]
Relief sought
[32]
PROCEDURAL BACKGROUND
[38]
The respondent’s representation during these proceedings
[43]
Events prior to the final hearing on 29 August 2022
[54]
Hearing on Monday 29 August 2022
[62]
Applications proceeded undefended
[93]
Evidence
[97]
Hearing on Tuesday 30 August 2022
[105]
UNCONTESTED FACTS
[110]
Nicolas Moreno Rivero (MLG813/2021)
[111]
Carolina Corrales Rhenals (MLG812/2021)
[119]
Juan Camilo Pineros Torres (MLG809/2021)
[129]
Juan Camilo Rios Londono (MLG808/2021)
[141]
Wilmer Jahir Alvarez Nino (MLG806/2021)
[153]
Geraldine Torres Amezquita (MLG811/2021)
[171]
Ana Melisa Garcia Calvo (MLG807/2021)
[184]
Leonardo Fabio Hernandez Alarcon (MLG810/2021)
[192]
ISSUES TO BE DETERMINED
[203]
Were the applicants employees or independent contractors?
[206]
Relevant principles
[210]
Framework for analysis
[214]
Contracts
[217]
Establishment of the relationship
[227]
Control
[234]
The applicants did not conduct their own businesses
[244]
ABN
[257]
Conclusion
[261]
Who was the true employer?
[268]
Relevant principles
[273]
Conclusion
[295]
Entitlements under the FW Act and industrial instruments
[299]
Was each applicant paid for the work they performed in accordance with the applicable industrial instrument?
[305]
Were the applicants entitled to be paid superannuation?
[311]
Conclusion
[313]
Accessorial liability of the respondent
[319]
Conclusion
[341]
Declarations as to other alleged contraventions
[347]
DISPOSITION
[357]
JUDGE FORBES
INTRODUCTION
This is the fourth published judgment in these proceedings. This judgment deals with the applicants’ substantive claims for relief in relation to alleged underpayments for work they claimed to have performed as employees of the respondent, Mr Shivesh Kuksal, or companies controlled by him.
This judgment deals with eight applications. The applications have not been formally joined but they have been case managed and heard together and orders have been made for the evidence in one matter to be received as evidence in all other matters.
Each of the eight applicants elected to proceed under the small claims procedure prescribed by section 548 of the Fair Work Act 2009 (Cth) (the FW Act). This procedure was introduced into the FW Act as a mechanism to deal with applications to recover employee entitlements which is quicker, cheaper and more informal than regular Court proceedings. The aim is to settle disputes quickly and fairly, with minimum expense to the parties. That at least is the objective.
Regrettably, these proceedings have from the outset been beset with complications. Numerous interlocutory applications and procedural issues resulted in at least four adjournments of the substantive applications. Relevant decisions have been published in Alvarez Nino v Kuksal [2022] FedCFamC2G 401 (Kuksal [No 1]), Alvarez Nino v Kuksal (No 2) [2022] FedCFamC2G 548 (Kuksal [No 2]) and Alvarez Nino v Kuksal (No 3) [2022] FedCFamC2G 650 (Kuksal [No 3]). There have also been various recusal applications and other procedural rulings for which reasons have been given ex tempore.
These matters were listed for final hearing for the fifth time on 29 August 2022. Prior to the final hearing, no findings of fact or law in the substantive applications had been made. The applications proceeded on that day and the day following, in unusual and difficult circumstances which I describe later in these reasons. In the end, the applications proceeded undefended.
Having regard to the evidence and submissions received at trial, which was effectively not challenged, I am satisfied that the respondent, Mr Shivesh Kuksal, employed each of the applicants and that he is liable to them in respect of unpaid wages for work they performed for him or his companies.
I reject Mr Kuksal’s assertion that each of the applicants performed work for him or his companies as independent contractors under contracts for service.
If I should be found to be wrong about there being an employment relationship between Mr Kuksal and each of the applicants, I am otherwise satisfied that the applicants were variously employed by the companies Kornucopia Pty Ltd and/or Avant-Garde Pty Ltd and that Mr Kuksal was relevantly involved in contraventions of the FW Act by those companies in relation to the failure to pay the applicants’ wages pursuant to the relevant industrial instrument.
Accordingly, each of the applicants are entitled to judgment against Mr Kuksal for the sums claimed in their applications. The respondent should also pay interest calculated pursuant to section 547 of the FW Act.
My reasons follow.
The Parties
The background of these proceedings has been set out in detail at [5] to [18] of my earlier decision in Kuksal [No 1]. However, I will briefly reset the scene.
In these proceedings there are eight applications before the Court. The applicants are:
(1)Mr Wilmer Jahir Alvarez Nino - MLG806/2021;
(2)Ms Ana Melisa Garcia Calvo - MLG807/2021;
(3)Mr Juan Camilo Rios Londono - MLG808/2021;
(4)Mr Juan Camilo Pineros Torres - MLG809/2021;
(5)Mr Leonardo Fabio Hernandez Alarcon - MLG810/2021;
(6)Ms Geraldine Torres Amezquita - MLG811/2021;
(7)Ms Carolina Corrales Rhenals - MLG812/2021; and
(8)Mr Nicolas Moreno Rivero - MLG813/2021.
As mentioned, each of the applicants elected to proceed under the small claims procedure prescribed by section 548 of the FW Act. In every case their claims are substantially less than the $20,000 jurisdictional limit, which applied at the time[1].
[1] Fair Work Act 2009 (Cth) (FW Act) s 548(2)
The applicants were mainly international students, many from Spanish or South American backgrounds. Some of them were known to each other and they share a common language. All were temporarily in Australia on international student or working visas. At the time they performed work most applicants had been in Australia for six months or less.
The respondent, Mr Shivesh Kuksal, is a businessman with numerous diverse interests, including in relation to short-stay guest accommodation.
Among his business interests, Mr Kuksal was at all relevant times the sole director, company secretary and shareholder of two companies, Kornucopia Pty Ltd and Avant-Garde Ventures Pty Ltd.
Kornucopia Pty Ltd was incorporated in October 2016. From its incorporation until 20 September 2017 the company’s name was State of Our Times Pty Ltd. The company operated under several business names including Haut Monde Living and Eldorado Docklands[2]. Kornucopia is now deregistered following external administration[3].
[2] Geraldine Torres Amezquita affidavit affirmed on 25 February 2022 (Torres Amezquita affidavit), annexure GA-2 (Court Book (CB) 282)
[3] Shivesh Kuksal affidavit affirmed on 12 November 2021, annexure SK-1 (CB 551)
Avant-Garde Ventures Pty Ltd is also now deregistered following external administration[4]. Previously that company traded under several business names including Zenith Serviced Apartments[5].
[4] Shivesh Kuksal affidavit affirmed on 12 November 2021, annexure SK-2 (CB 560)
[5] Leonardo Fabio Hernandez Alarcon affidavit affirmed on 25 February 2021 (Hernandez Alarcon Affidavit), annexure LH-2 (CB 265)
Each of the applicants claim to have been employed by Mr Kuksal or by one of the companies owned and operated by him.
In five of the eight applications, the applicants contend that they were a direct employee of the respondent, Mr Kuksal[6]. In two of the eight applications[7] the applicants contend that they were employed by Kornucopia Pty Ltd but allege that as the sole director, shareholder and secretary of that company, Mr Kuksal was involved in any contravention by the corporate employer and is liable as an accessory pursuant to section 550 of the FW Act. The remaining applicant[8] contends that he was employed by Avant-Garde Ventures Pty Ltd, but similarly alleges that as Mr Kuksal was the sole director, shareholder and secretary of that company, he was involved in the employer’s contravention and is liable as an accessory.
[6] MLG806/2021 – MLG809/2021 and MLG813/2021
[7] MLG811/2021 and MLG812/2021
[8] MLG810/2021
The applicants variously performed work over a seven month period between 2 July 2017 and 27 January 2018. Five of the applicants claim they were not paid for any work performed during the period of their employment, whilst the remaining three applicants claim to be owed wages for work they performed during employment.
Mr Kuksal denies all alleged contraventions of the FW Act. In his formal responses filed in the proceedings, Mr Kuksal contends that the applicants were never at any material time employed by him nor was he the employer of the applicants. Instead, Mr Kuksal contends that the applicants were at all material times independent contractors of either Kornucopia Pty Ltd or Avant-Garde Ventures Pty Ltd.
As both Kornucopia Pty Ltd and Avant-Garde Ventures Pty Ltd have been deregistered, the applicants have chosen not claim relief from either entity. They only seek orders against Mr Kuksal on the grounds that he was either:
(1)in truth, their direct employer (a claim made by five of the applicants[9]); or
(2)liable as an accessory to any contravention of the FW Act by the corporate employer, by reason of his involvement in the corporations’ contraventions (this claim is the sole claim in relation to three of the employees[10], and the alternative claim in relation to five of the employees[11]).
[9] Alvarez Nino, Garcia Calvo, Rios, Pineros and Moreno Rivero
[10] Hernandez Alarcon, Torres Amezquita and Corrales Rhenals
[11] Alvarez Nino, Garcia Calvo, Rios, Pineros Torres and Moreno Rivero
For the reasons set out in Kuksal[No 1], I held that this Court has jurisdiction, in a small claim proceeding under section 548 of the FW Act, to make a compensatory order against a person who was involved in a contravention of a civil remedy provision within the meaning of s 550. I found that the Court has jurisdiction to make an order against an accessory even if the principal employer is not a party to the proceeding. The accessorial liability issue is therefore one of the matters addressed later in this judgment.
As will be apparent from my earlier judgments, the eight applications share many common factual elements and legal and themes. Mr Kuksal is the respondent in all matters. The applicants are represented by common solicitors and counsel. The legal and factual issues to be determined in each case have application in other matters.
Pursuant to orders I made on 20 October 2021, for reasons of efficiency, expedition and cost, these applications have travelled as one since inception, although they have not been formally consolidated. Directions and procedural orders have been common to all matters. Relevantly, I ordered that evidence received in one proceeding will be treated as having been received in all matters.
Nature of the applicants’ work
Details of the evidence relating to individuals will be explored later, but in broad terms the applicants describe their work as involving housekeeping which included general cleaning duties, collection and delivery of guests’ dry cleaning and laundry, linen and associated materials to and from accommodation areas. Some of the applicants were also engaged in assembling furniture, moving furniture or other basis tasks.
Each applicant contends that he or she was at all material times covered by the Hospitality Industry (General) Award 2010 (the Award). Each applicant contends that he or she performed work consistent with the duties of a Guest Service (Grade 1) Employee.
Each applicant alleges he or she performed work as a casual employee. Some worked for as little as a few days; some for weeks. Each of the applicants gave evidence that they worked only when required to do so by Mr Kuksal or one of his agents, in particular a Ms Lulu Xu. The applicants say that they did not have a regular pattern of hours nor a guaranteed number of hours that would indicate permanent employment.
Pursuant to clause 13 of the Award, a casual employee is an employee who is engaged as such. A casual employee must be paid a 25% casual loading and is entitled to a minimum payment for two hours’ work on each occasion they are required to attend work. In each case the applicants’ claims have been calculated according to this Award formula.
What contraventions are alleged under the FW Act?
The applicants allege that Mr Kuksal contravened a number of provisions of the FW Act in relation to the work performed by them as employees. The applicants alleged contraventions of:
(1)section 44(1) - Contravention of a provision of the National Employment Standard (NES);
(2)section 45 - Contravention of a modern award
(a)clause 20: Minimum wages.
(b)clause 13: Casual employment.
(c)clause 32: Penalty rates.
(d)clause 28: Superannuation.
(3)section 323(1) - Method and frequency of payment;
(4)section 357 - Sham Contracting; and
(5)section 536 - Pay Slips
Relief sought
Each of the applicants has applied for an order (other than a pecuniary penalty order) under Division 2 of Part 4-1 of the FW Act, being an order awarding compensation for loss that each of them has suffered as a result of the respondent’s contravention[12] of a civil remedy provision. Pecuniary penalties are not available under the small claims procedure.
[12] FW Act s 545(2)(b)
The applicants claim compensation for:
(1)underpayment of wages;
(2)superannuation; and
(3)interest pursuant to statute.13
The order that each of the applicants seek relates to “an amount that an employer was required to pay to, or on behalf of, an employee under [the FW Act] or a fair work instrument”[13]. A “fair work instrument” is defined to include a modern award[14].
[13] FW Act s 548(1A)
[14] FW Act s 12
In each of their Amended Applications the applicants set out a table which articulates the alleged hours worked, the relevant award rate for those hours, the amount (if any) paid and the amount claimed. The compensation claimed in each application ranges from about $675 to around $7,250.00, for a total of about $22,500 for all applicants.
A summary of the applicants’ claims for compensation (excluding interest) is set out below:
Mr Wilmer Jahir Alvarez Nino alleges that he:
(a)was employed by Mr Kuksal or Kornucopia from 10 August 2017 to 25 August 2017;
(b)worked for 20 hours; and
(c)is owed outstanding entitlements comprised of:
(i)$519.58 in unpaid wages; and
(ii)$49.36 in unpaid superannuation.
Ms Ana Melisa Garcia Calvo alleges that she:
(a)was employed by Mr Kuksal or Kornucopia from 26 August 2017 to 28 August 2017;
(b)worked for 19 hours; and
(c)is owed outstanding entitlements comprised of:
(i) $573.75 in unpaid wages; and
(ii) $54.51 in unpaid superannuation.
Mr Juan Camilo Rios Londono alleges that he:
(a)was employed by Mr Kuksal or Kornucopia from 25 August 2017 to 28 August 2017;
(b)worked for 23 hours; and
(c)is owed outstanding entitlements comprised of:
(i)$676.31 in unpaid wages; and
(ii)$64.25 in unpaid superannuation.
Mr Juan Camilo Pineros Torres alleges that he:
(a) was employed by Mr Kuksal or Kornucopia from 18 August 2017 to 24 August 2017;
(b) worked for 40 hours; and
(c) is owed outstanding entitlements comprised of:
(i)$1,039.23 in unpaid wages; and
(ii)$98.73 in unpaid superannuation.
Mr Leonardo Fabio Hernandez Alarcon alleges that he:
(a) was employed by Avante-Garde Ventures or Kornucopia from 26 January 2018 to 27 January 2018;
(b) worked for 17.5 hours; and
(c) is owed outstanding entitlements comprised of:
(i) $667.85 in unpaid wages; and
(ii) $63.45 in unpaid superannuation.
Ms Geraldine Torres Amezquita alleges that she:
(a) was employed by Kornucopia from 9 September 2017 to 17 November 2017;
(b) worked for 330.66 hours; and
(c) is owed outstanding entitlements, comprised of:
(i)$5,015.19 in unpaid wages; and
(ii)$821.29 in unpaid superannuation.
Ms Carolina Corrales Rhenals alleges that she:
(a) was employed by Kornucopia from 2 July 2017 to 9 August 2017;
(b) worked for 281 hours; and
(c) is owed outstanding entitlements comprised of:
(i)$5,425.31 in unpaid wages; and
(ii)$705.40 in unpaid superannuation.
Mr Nicolas Moreno Rivero alleges that he:
(a) was employed by Mr Kuksal and Kornucopia from 12 August 2017 to 1 October 2017;
(b) worked 162.42 hours; and
(c) is owed outstanding entitlements comprised of:
(i)$2,786.40 in unpaid wages;
(ii)$428.01 in unpaid superannuation; and
(iii)$148.97 in reimbursements.
In addition to the unpaid wages and superannuation entitlements, each of the applicants seek interest on the outstanding amounts calculated in accordance with section 547 of the FW Act to the date of judgment.
PROCEDURAL BACKGROUND
For context, these reasons should be read with the three earlier judgments I have published in relation to these proceedings. I will not repeat observations already made in those judgments but they tend to underplay rather than overstate the case management challenges confronted by the Court in this complicated litigation. A perusal of the transcript of the various Court events will reveal the Court’s efforts to maintain order in this highly adversarial contest.
Suffice to say, the final hearing of these proceedings has been delayed after a number of adjournments for numerous reasons. Nonetheless by 4 July 2022 the parties were squarely on notice that following earlier attempts at trial, the applications would proceed for final hearing on 29 and 30 August 2022 without any further delays or interferences.
Unfortunately, when the final hearing day arrived, the proceeding found itself mired in further controversy, for which the applicants are entirely blameless. Consistent themes, such as the respondent’s aggressive self-advocacy, the ambiguous state of his legal representation, his belligerent challenges to the authority of the Court and applications for my recusal surfaced yet again.
It is necessary to digress to explain the unusual circumstances which shaped the final hearing. I will endeavour to give context to some of the complications and delays which have attended the hearing and determination of these claims.
The exercise of my discretion in dealing with the various issues which emerged on the morning of trial must also be viewed in the context of what had gone before, including the written and ex tempore reasons I have given for previous rulings and orders.
The respondent’s representation during these proceedings
Among his business interests, Mr Kuksal was at material times the beneficial owner and director of a law practice which operated under a series of different names including The People Shop, New Edge Law and Erudite Legal[15]. Mr Kuksal is not a lawyer or at least is not admitted to practice as such in Victoria.
[15] Gabriella Marchetti affidavit affirmed on 4 February 2022 at [7]-[10] and annexures
The legal practice was purportedly engaged to represent Mr Kuksal from time to time during the course of these proceedings, although the nature and scope of their engagement and role in this proceeding was often unclear. During the proceedings, solicitors and firms associated with Mr Kuksal came on and went off the record, confusing both the Court and the applicants’ representatives.
Initially, on 20 October 2021, Mr Kuksal sought leave to be represented by a lawyer in relation to each of the applications. Under the small claims provisions of the FW Act leave is required and I granted it[16]. The final hearing was set down for 7 February 2022, and by Order 9 of the orders made that day I cautioned the parties that in the event of non-attendance I would grant leave for the matter to proceed on an undefended basis.
[16] Orders made 21 October 2021, Order 1
On 11 November 2021 a notice of address for service was filed on Mr Kuksal’s behalf by an Allan McGregor of People Shop Pty Ltd. An @peopleshop email address was provided as the respondent’s address for service.
At the commencement of the scheduled hearing on 7 February 2022, Mr Kuksal appeared and informed the Court that as of that morning, he had “let go of the instructions” that he had given to the law firm and that he wanted to represent himself that day. Mr Kuksal told the Court that the firm did not have enough time to file a notice of discontinuance, and he felt he would be “best equipped” to deal with matters himself. I acceded to his request and allowed him to do so. I ordered Mr Kuksal to file and serve an amended notice of address for service. Mr Kuksal informed the Court that documents could be served on him at the email address [email protected].
On 14 February 2022, a notice of address for service was filed by another solicitor, Peter Ansell, which nominated [email protected] as the contact point for Mr Kuksal. From that date Mr Ansell was on the record as the respondent’s solicitor.
A week or so later yet another notice of address for service was filed, this time by Mr Kuksal. That notice was signed by Mr Kuksal and no lawyer code was provided. Mr Kuksal provided the email address shivesh@eruditelegal and the office address of Erudite Legal as his address for service.
At a hearing on 15 March 2022, Mr Kuksal appeared and then sought to represent himself. Given what had transpired since the previous hearing, I asked Mr Kuksal to clarify the status of his representation for the Court and the applicants. In response Mr Kuksal informed the Court:
MR KUKSAL: Yes, and, your Honour, with regard to the question of my legal representation, I rely on an authority which is – your Honour, just bear with me. I have an authority, your Honour, which clarifies that practitioners in proceedings can be instructed only with respect to tasks, as opposed to having a general mandate for representation.
[…]
So my position is that, given the volume of work that needs to be undertaken in these proceedings, it is simply not feasible for me to undertake the work myself, especially in conjunction with all my other obligations professionally.
[…]
So I get plenty of support from legal practitioners and paralegals with respect to the preparation of the matter, but I have chosen to represent myself in these proceedings because I feel very passionately about them.” (emphasis added)
The hearing on 15 March 2022 was adjourned until 4 July 2022.
On 4 July 2022, I again asked Mr Kuksal to explain whether he was or was not represented by legal practitioners as there appeared to be some involvement by Erudite Legal, yet Mr Kuksal appeared on his own behalf. The following exchange took place:
HIS HONOUR: Now, Mr Kuksal, can you just clarify for me, when you say you’re appearing in person, do I take it – my understanding is that you’re represented by Erudite Legal – is that right – but you’re wishing to advocate on your own behalf; is – I just want to be clear on the situation.
MR KUKSAL: That’s right, your Honour.
HIS HONOUR: Yes. So you’re represented by Erudite Legal, but you are advocating your case on your own behalf.
MR KUKSAL: I’m not sure what you mean by “represented by Erudite Legal”. They are assisting me in the preparation of the case, but ultimately I’m self-represented. (emphasis added).
On 4 July 2022, over the objection of the applicants, I adjourned the final trial to 29 August 2022. However, I made orders and put the parties squarely on notice that the applications would proceed for final hearing on 29 and 30 August 2022 without any further delays or interferences. To that end I made notations to my case management orders of 4 July 2022 in the following terms:
A.The Court has made these orders with a view to ensuring that the matters can proceed without further procedural disputes on 29 and 30 August 2022.
B.The parties are reminded of the overarching purpose of civil practice and procedure, being the facilitation of the just resolution of disputes:
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible (see section 190-192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
Events prior to the final hearing on 29 August 2022
At 4.28pm on Thursday, 25 August 2022 my chambers received an email from Mr Howard Rapke, a partner of the firm Holding Redlich in the following terms:
“WILMER JAHIR ALVAREZ NINO v SHIVESH KUKSAL - MLG806/2021
ANA MELISA GARCIA CALVO v SHIVESH KUKSAL - MLG807/2021
JUAN CAMILO RIOS LONDONO v SHIVESH KUKSAL - MLG808/2021
JUAN CAMILO PINEROS TORRES v SHIVESH KUKSAL - MLG809/2021
LEONARDO FABIO HERNANDEZ ALARCON v SHIVESH KUKSAL - MLG810/2021
GERALDINE TORRES AMEZQUITA v SHIVESH KUKSAL - MLG811/2021
CAROLINA CORRALES RHENALS v SHIVESH KUKSAL - MLG812/2021
NICOLAS MORENO RIVERO v SHIVESH KUKSAL - MLG813/2021
(the Proceedings)Dear Associate to Judge Forbes
By way of introduction, my name is Howard Rapke and I am a partner of Holding Redlich.
On 22 August 2022, the Victorian Legal Services Board resolved to appoint me to manage the law practice, People Shop Pty Ltd trading as Erudite Law (Practice) pursuant to section 334 of the Legal Profession Uniform Law Application Act 2014 (Vic) (Act).
I have attached my Notice of Appointment and Instrument of Appointment. Pursuant to 336(1)(b) of the Act, I am permitted to transact any business on behalf of the Practice including commencing, continuing, defending or settling any proceedings.
I understand the Practice is listed as the Solicitor for the Respondent in the Proceedings and the matter has been listed for final hearing on 29 and 30 August 2022.
I would appreciate urgent confirmation as to the status of the Proceedings and if the hearing is still scheduled to be heard on these dates.
Kind regards,”
Attached to Mr Rapke’s email were two accompanying documents, namely a ‘Notice of Appointment of a Manager’ and an ‘Instrument of Appointment of Manager’. The documents, read collectively, particularised Mr Rapke’s appointment by the Legal Services Board as the manager of the law practice People Shop Pty Ltd trading as Erudite Legal. The documents also articulated the various responsibilities of Mr Rapke’s appointment, including that Mr Rapke was to manage the practice for a period of six months.
My associate responded to Mr Rapke’s email at 10.11am on 26 August 2022 simply confirming that the final hearing of the matter remained scheduled to proceed on 29 and 30 August 2022.
At 4.20pm on Friday, 26 August 2022 Mr Rapke sent a further email to my chambers as follows:
“Dear [Associate]
I refer to the Proceedings.
Thank you for confirming that the final hearing is scheduled to proceed on 29 and 30 August 2022.
Pursuant to 336(1)(b) of the Act, as Manager of the Practice, I am permitted to transact any business on behalf of the Practice including commencing, continuing, defending or settling any proceedings.
In performing my role as Manager and thereby supervising the operations of the Practice, I confirm that the Practice:
(a) has not been provided with instructions in relation to the Proceedings;
(b) has no money in trust in relation to the Proceedings; and
(c)does not have the capacity to defend the matter on behalf of the Respondent, Shivesh Kuksal.
As such, I, on behalf of the Practice, respectfully seek leave from the Court to cease acting for the Respondent under Rule 3.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
I sincerely apologise to the Court for the late notice.
For your convenience, I have re-attached my Notice of Appointment and Instrument of Appointment.
Should you require any further information, please feel free to call me on 0419 376 525.
Kind regards,”
In response to this email, my associate informed Mr Rapke that the Court was not inclined to accede to the request for leave without first hearing from the applicants and the respondent at the commencement of the hearing on Monday. The email also stated that the Court was unaware whether Mr Rapke’s correspondence of that day or any other relevant communication had been communicated to the respondent.
Further, the Court communicated to Mr Rapke the view that the status of the respondent’s legal representation in this matter was somewhat ambiguous, and that:
“The Court file records that the most recent Address for Service was filed by the Respondent himself on 24 February 2022. Mr Kuksal provided the email ‘[email protected]’ as his Address for Service. No lawyer code was added and the Notice was signed by Mr Kuksal. The Court is unaware whether a copy of that Notice of Address for Service was served upon Erudite Legal, who were the representatives on earlier Notices of Address for Service.”
Finally, the Court informed Mr Rapke that it intended to raise with the parties on Monday morning, being the first day of hearing, the correspondence that had been received by chambers in respect of his appointment as manager and the request that leave be granted to excuse him from acting on behalf of the respondent. Upon hearing from the parties, the Court would make a determination on the matter of leave to withdraw, if in fact leave was required. A Microsoft Teams invitation was forwarded to Mr Rapke and he was invited to attend the virtual courtroom on Monday morning.
Subsequently, Mr Rapke advised my chambers that a letter had been sent to Mr Kuksal on Thursday, 25 August 2022 notifying him of Mr Rapke’s intention to cease acting for him in the proceedings. A copy of the letter was attached to the email sent to chambers. The contents of the letter included a list of seven ongoing matters in which Erudite Legal is the solicitor on the record and Mr Rapke indicated to the respondent that he intends to seek leave to file a notice of ceasing to act in all seven proceedings.
Hearing on Monday 29 August 2022
On Monday 29 August 2022 the hearing was listed to be convened via Microsoft Teams at 10.15am.
Shortly before the hearing, at 10.05am, my chambers received an email from the address [email protected] purporting to be from Mr Kuksal which requested the electronic link for the hearing. The link had been provided to Mr Kuksal’s nominated email address the previous week but it was sent to him again at 10.09am.
The hearing commenced shortly after 10.15am. Mr Bunce of Counsel appeared for the applicants, Mr Kuksal announced an appearance on his own behalf and Mr Rapke appeared as an interested party in his capacity as manager of People Shop Pty Ltd trading as Erudite Legal.
At the outset of the hearing, the parties were advised that the Court intended to deal with preliminary matters pertaining to Mr Rapke first. The Court apprised the parties that it had received correspondence from Mr Rapke late the previous week and that Mr Rapke had sought leave of the Court to cease acting in the proceedings. I informed the parties that from the Court’s perspective there was a degree of ambiguity surrounding Mr Kuksal’s legal representation given that the last notice of address for service appeared to have been filed by him in his own capacity, albeit using an email address which seemed to be associated with the law firm in respect of which Mr Rapke had been appointed manager. I informed the parties that it was appropriate for Mr Rapke to be heard so that the Court and the parties could understand the basis upon which he was seeking leave to withdraw.
Mr Rapke was invited to make submissions pertaining to leave, having considered the Court’s question regarding the respondent’s representation. However, just as Mr Rapke commenced to do so, Mr Kuksal dropped out of the call and the Court was forced to stand the matter down.
After approximately 20 minutes, by 10.50am, Mr Kuksal had not rejoined the virtual hearing. My chambers sent an email to Mr Kuksal informing him that Court would resume at 11.00am. He was told that if he was experiencing technical difficulties he should contact chambers immediately and that if his videoconferencing capacity was malfunctioning he could dial into the hearing using audio only. Another Microsoft Teams Hearing link was provided to Mr Kuksal for his convenience.
At 10.51am, whilst the virtual courtroom was still stood down and awaiting Mr Kuksal’s return to the Microsoft Teams Hearing, an email was received by my chambers from the address [email protected] stating:
Dear Associate,
As his Honour had noted earlier, I have experienced some technical difficulties with the audio-visual link this morning. Whilst initially, the call quality was poor, later my connection with the Court dropped out completely.
As his Honour may be familiar, the LSB has recently appointed Mr Rapke as the manager to Erudite Legal and Mr Rapke has gone on to unlawfully forbid me from entering my office premises. This has adversely impacted my ability to attend the hearing using the reliable internet connect at my office.
As you would know, I had tried logging in to the meeting after I had dropped out, however, I was not permitted into the meeting. As I am unsure whether this is because his Honour does not wish to be interrupted while Mr Rapke speaks, I will wait for your response before attempting to login again.
Finally, I wanted to confirm that despite the abysmal connectivity, his Honour had heard my objection with respect to permitting Mr Rapke speak given the context. It is my understanding that Mr Rapke's role, if performed properly, would have been one of my lawyer, which would have normally prevented him from acting against my interests or lawful instructions.
Mr Rapke, on the other hand, has seized all my belongings (including PCs and all stationery, books etc) as well as my case files in these proceedings and forced me out of my office. This is in addition to forbidding the entirety of the Firm’s staff from assisting me. This was after he permitted the TV crew from Channel Nine to go through my case files and then refer to confidential matters (inaccurately) as he joined a tabloid reported in heckling the officers of the Firm for broadcast on national television.
Sincerely,
Shivesh Kuksal
General Manager
Erudite Legal
At 10.56am a further email was received by my chambers, this time from the address [email protected] which stated:
Dear associate
Could you please confirm that you have received the email that I just sent after being disconnected from the connection to the Court.
The Litigation Team
A follow up email was received at 10.57am from the [email protected] address apologising for omitting to copy the applicants’ solicitor and Mr Rapke into the correspondence he sent to the Court at 10.51am.
Court resumed at 11.03am. Mr Kuksal was in attendance online. Mr Rapke sought permission from the Court, to the extent that it was necessary, to withdraw from being in any way involved in these hearings on behalf of Mr Kuksal, and sought to file a notice of ceasing to act in respect of these eight matters. In brief submissions, Mr Rapke stated that his position as appointed manager of the legal practice was quite clear and that in his capacity he had the ability to decide whether to continue to participate in litigation or not. Mr Rapke said that he had not identified any cost agreements, cost estimates or invoices to evidence that Erudite Legal had been properly retained in this matter and submitted that he was concerned about the position of the practice in respect of this proceeding. Mr Rapke said that, as a matter of courtesy, he appeared before the Court to seek leave to discontinue his representation in this proceeding.
Mr Kuksal objected to Mr Rapke making submissions on whether or not Erudite Legal represented him in this case, on the basis that it was improper and could lead to Mr Rapke commenting on confidential matters, causing prejudice to Mr Kuksal. He also submitted that pursuant to section 336 of the Legal Profession Uniform Law Application Act 2014 (Vic), Mr Rapke had abused his authority by forbidding Mr Kuksal from attending his office premises and by seizing his case files.
The Court asked Mr Kuksal directly about his representation. Mr Kuksal concurred that his notice of address for service was not filed by a legal practitioner and that he had indicated to the Court on previous occasions that he is self-represented.
Having heard submissions from Mr Rapke and Mr Kuksal, and noting Mr Kuksal’s concession that Erudite Legal was not the solicitor on the record or his representative in this matter, the Court granted Mr Rapke leave to withdraw from the proceeding.
Once the Court’s determination was made, and Mr Rapke had exited the virtual Court room, Mr Kuksal then made an oral application to join Mr Rapke as a party the proceeding and sought to play a video recording which he considered was “evidence” in support of that request. I ruled against Mr Kuksal’s application to join Mr Rapke as a party to this proceeding and did not extend him the opportunity to play the recording.
Mr Kuksal sought reasons for the dismissal of his application and these were provided ex tempore. In brief, those reasons included noting that the proceedings had been initiated as small claims under section 548 of the FW Act, that the Court was not bound by rules of evidence and procedures nor did it place undue emphasis on legal forms and technicalities. Similarly, I reminded the parties that the provisions under s 190 to s 192 of the Federal Circuit and Family Court of Australia Act2021 (Cth) required the Court to have regard to the overarching purpose of civil practice and procedure provisions including the facilitation of the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. Having regard to those matters and context, I found that Mr Kuksal’s application to join Mr Rapke as a party to this proceeding had no proper legal basis and was not aligned with the Court’s overarching purpose.
Upon the delivery of those reasons, Mr Kuksal then made an oral application for my recusal. In short, the respondent submitted that by refusing to allow him to present evidence of the video recording in support of his application to join Mr Rapke to the proceeding, I was prejudiced against him. Moreover, Mr Kuksal submitted that Mr Rapke had engaged in “confidential communications” with the Court by sending various emails to my chambers and that this was “improper” conduct as he not been copied in on the exchange.
I informed Mr Kuksal that the correspondence between my chambers and Mr Rapke did not extend beyond confirming that date of the scheduled hearing and an invitation to Mr Rapke to appear in Court that morning to make his application and to ensure full transparency. I also informed Mr Kuksal that if he had an issue to raise in relation to Mr Rapke’s conduct, it should be taken up with the Legal Services Board.
The Court momentarily stood down at 11.42am so that my chambers could forward to the respondent a copy of the communications sent to and received by Mr Rapke. Mr Kuksal was also informed that once Court reconvened, I would allow him an opportunity to make submissions on my recusal and then I would rule on the matter.
As requested, at 11.47am my chambers forwarded Mr Kuksal a copy of the chain of correspondence exchanged with Mr Rapke on 25 and 26 August 2022, outlined in paragraphs [54] to [61] above. Mr Kuksal responded to the email at 11.56am and at 12.00pm from the address [email protected] requesting that the Court “forward the communications received from the Legal Services Board as well”. On each occasion the emails identified Mr Kuksal as the “General Manager of Erudite Legal”. Mr Kuksal was informed that chambers had not received any communication from the Legal Services Board and my associate asked the respondent to re-join the Hearing so that the matter could be re-called.
Court resumed at 12.02pm and Mr Kuksal resumed his submissions on my recusal. It is noteworthy that Mr Kuksal has made several other applications for my recusal during the course of these proceedings, which I have ruled on both orally and in writing. One of those decisions is published in Kuksal (No 2).
In support of this particular application for recusal, the respondent submitted that due to the exchange between Mr Rapke and my chambers, the Court was at risk of forming a prejudicial view of him. Mr Kuksal argued that there had been an interference in judicial practice by the receipt by my chambers of ex parte correspondence from Mr Rapke, which had impugned his character in these proceedings.
I ruled against the respondent’s application and delivered reasons ex tempore. In short, I dismissed the application as I did not accept that any of the grounds advanced by Mr Kuksal would give rise, in the mind of a fair-minded lay observer, to a reasonable apprehension that I was not able to bring an impartial mind to the resolution of the substantive proceeding. I made it clear that none of the evidence had been heard and I had not formed any view which was prejudicial to Mr Kuksal or any of the applicants.
After my ruling on the recusal application, Mr Kuksal then sought an adjournment of the hearing. He claimed that he did not have access to the case files as his computer had been seized by Mr Rapke, he did not have a copy of the court book, he did not know how the Commonwealth Courts Portal worked and he would suffer “substantial prejudice” if the substantive matters were to proceed and he had none of the materials before him.
Counsel for the applicants, Mr Bunce, was invited to make submissions in response to Mr Kuksal’s request for an adjournment. Mr Bunce noted that a copy of the court book had been sent to Mr Kuksal months prior to the final heraring. It had been sent to the email address he used earlier that day to send an email to my chambers, which is also the email address the respondent had used in the past. The court book contained all of the evidence and submissions which had been filed in the proceedings. Further, Mr Bunce submitted that Mr Kuksal had been aware of the final hearing date for some weeks and could have taken steps to address the issue of access to documents or legal representation during that time. Mr Bunce also noted Mr Kuksal’s familiarity with the documents in this proceeding, including affidavits he had made and filed. He submitted that Mr Kuksal was using tactical delays to stymie the proceeding.
Mr Kuksal accepted that the court book had been sent to him by the applicants and confirmed that he had access to it. However, he submitted to the Court that he would prefer the documents to be physically printed in order to be afforded an opportunity to make proper submissions. He contended that the “protections” normally available to him in these proceedings were “no longer available” to him.
Having heard and considered submissions from both parties, I considered Mr Kuksal was in a position to defend the matter and ruled against his adjournment request. I gave reasons ex tempore which noted that a copy of the court book had been served upon Mr Kuksal at two different email addresses, containing all the relevant documents filed in this proceeding, and that it was accessible by him. I noted that the parties had been aware of the hearing dates for some months and after previous adjournments the parties had been put squarely on notice that this matter was to proceed on the allocated days. It had also been made clear to Mr Kuksal that a further adjournment would prejudice the applicants. I also noted that it had always been open to Mr Kuksal to engage a solicitor in these proceedings, but he had insisted on representing himself.
I then informed the parties[17], relevantly:
HIS HONOUR: The last orders I made, I went out of my way to ensure that the parties were well aware that this matter would proceed today, and that it should be free of procedural and other issues. There are eight applicants in this proceeding. The cost to the court, the court’s time, judicial time all must be weighed into the mix. And I will not repeat myself that this is a small claim proceeding. There is a relaxation of the normal rules regarding representation and procedure. And I must have regard to the overarching obligations that parties must adhere to in ensuring that matters are dealt with expeditiously in the court. I propose to adjourn this matter until 2.15 at which time I intend to proceed with the applications. And I will be calling on you, Mr Bunce, to open your case. In the meantime, Mr Kuksal, you have access to the court book.
[17] Transcript of 29 August 2022, p 31-32
The matter was adjourned to 2.15pm.
At 2.00pm, the Court received email correspondence from a Ms Maria De Gregorio, describing herself as ‘Director of Erudite Legal’, in the following terms:
“To Justice Forbes,
I write on behalf of Mr Kuksal as a lay director of the Firm, Erudite Legal.
I understand that in proceedings this morning Mr Kuksal was made aware of correspondence with the court. Subsequent to that revelation, Mr Kuksal made submissions to the Court revealing some of Mr Rapke's improper conduct in seizing his personal property and that of his companies.
Subsequent to those submissions by Mr Kuksal, Mr Rapke, who had previously maintained that he would return the seized devices as soon as he had copied their content, has now informed us that he has seized them.
The devices seized store irreplaceable data of the Companies, including details of customers. The Companies require the information to comply with their obligations to various stakeholders.
Mr Kuksal, who has been actively involved in dealing with the current crisis, has been asked by the officers of the Company to urgently make an application in the Supreme Court of Victoria to restrict Mr Rapke.
Following Mr Rapke's instructions forbidding the solicitors of the Firm from acting for Mr Kuksal, he is now coordinating with other legal professionals to make the urgent application to the Court.
He therefore requests an adjournment to today's hearing.
Sincerely,
Maria Di Gregorio”This correspondence was copied to the respondent’s email address, [email protected] (the email address which is noted in the notice of address for service filed on 24 February 2022).
The Court was due to resume at 2.15pm, after the long luncheon adjournment. Mr Kuksal had not joined the hearing at that time. In light of Ms De Gregorio’s email, and out of an abundance of caution, I waited a further five minutes before opening Court in order to give Mr Kuksal a fair opportunity to join the hearing. At 2.20pm, there was still no appearance by or on behalf of the respondent, nor any indication from him that he intended to re-engage.
Applications proceeded undefended
The Court must exercise its powers in the way that best promotes the overarching purpose of the civil procedure provisions in the FW Act and Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules) – namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. In the circumstances, there being no appearance by Mr Kuksal and no formal application by him for an adjournment, I determined that it was in the interests of justice for the hearing proceed.
In determining that the matter should proceed in his absence, I exercised my discretion under rule 13.06(1)(e) of the Rules, which provides:
Default of appearance of a party
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
[...]
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
I was satisfied that Mr Kuksal had access to the court book, that he was well appraised of the evidence to be led on behalf of the applicants and their legal submissions, and his own defence, submissions and affidavits, all of which were contained in the court book and all of which had been served upon him months in advance of the hearing date.
I was and remain satisfied that in all the circumstances Mr Kuksal had been afforded every opportunity to engage in the proceedings and prosecute his defence. Mr Kuksal was aware the proceedings would resume at 2.15pm and he offered no explanation for his non-appearance.
Evidence
Well in advance of the trial the applicants identified the affidavits they proposed to tender into evidence in support of the applications.
Each of the applicants was called to give evidence and each swore to the truth of their affidavits and adopted them as their evidence in chief. The affidavits read by the Court and received into evidence were:
(1)affidavit of Nicolas Moreno Rivero affirmed 25 February 2022[18];
(2)affidavit of Carolina Corrales Rhenals sworn 25 February 2022[19];
(3)affidavit of Juan Camilo Pinereos Torres sworn 25 February 2022[20];
(4)affidavit of Juan Camilo Rios Londono affirmed 25 February 2022[21];
(5)affidavit of Wilmer Jahir Alvarez Nino sworn 25 February 2022[22];
(6)affidavit of Geraldine Torres Amezquita affirmed 25 February 2022[23];
(7)affidavit of Ana Melisa Gracia Calvo sworn 25 February 2022[24]; and
(8)affidavit of Leonardo Fabio Hernandez Alarcon affirmed 25 February 2022[25];
[18] Nicholas Moreno Rivero affidavit affirmed on 25 February 2022 (CB 327) (Moreno Rivero affidavit)
[19] Carolina Corrales Rhenals affidavit affirmed on 25 February 2022 (CB 300) (Corrales Rhenals affidavit)
[20] Juan Camilo Pineros Torres affidavit affirmed on 25 February 2022 (CB 238) (Pineros Torres affidavit)
[21] Juan Camilo Rios Londono affidavit affirmed on 25 February 2022 (CB 220) (Rios Londono affidavit)
[22] Wilmer Jahir Alvarez Nino affidavit affirmed on 25 February 2022 (CB178) (Alvarez Nino affidavit) subject amendment at paragraph [6] where ‘2016’ was amended to read ‘2017'
[23] Torres Amezquita affidavit
[24] Ana Melisa Garcia Calvo affidavit affirmed on 25 February 2022 (CB 212) (Garcia Calvo affidavit)
[25] Hernandez Alarcon affidavit
In each case before receiving the affidavits into evidence I asked the applicants about their understanding of English, confirmed that they had seen and understood their affidavits before swearing them and confirmed that they understood the oath that they had taken. I am satisfied that each of the applicants had a sound command of written English and that when they swore to the truth of their affidavits they understood the significance of doing so.
In addition to the affidavits there was some further evidence received by the Court as part of the applicants’ case.
Mr Alvarez Nino was shown and identified a series of emails between himself and Mr Kuksal and himself and the Fair Work Ombudsman (FWO). These comprised emails which the witness had either authored or received in relation to his alleged employment[26]. These documents were tendered into evidence.
[26] Exhibit A1 (CB 934-966)
Counsel for the applicants also tendered a series of documents which had been exhibited to the affidavit of the applicants’ solicitor, Ms Gabrielle Marchetti sworn on 29 June 2022. Over Mr Kuksal’s objection, I had previously given the applicants leave[27] to file the affidavit of Ms Marchetti and to tender into evidence exhibits GM-1, GM-7, GM-10 and GM-11. More specifically:
(1)GM-1 was a notice of decision by the FWO in relation to an FOI request[28];
(2)GM-7 is a customer enquiry record of a communication between Mr Kuksal and the FWO [29];
(3)GM-10 is a transcribed record of a phone call between Mr Kuksal and the FWO dated 9 January 2017[30]; and
(4)GM-11 is a chain of emails between the applicants’ solicitor JobWatch and the FWO dated 14 June 2022 clarifying a date error in the telephone transcript[31]
[27] Reasons in Alvarez Nino v Kuksal (No 3) [2022] FedCFamC2G 650 (Kuksal [No 3])
[28] Exhibit A2 (CB 373)
[29] Exhibit A3 (CB 459)
[30] Exhibit A4 (CB 482)
[31] Exhibit A5 (CB 493)
As Mr Kuksal had absented himself from the proceedings, the deponents were not cross-examined.
The applicants’ evidentiary case was closed just after at 4:24pm on the first day of hearing. I adjourned the matter to the following day to afford Mr Kuksal the opportunity to reengage in the proceeding before moving to hear final submissions from the Applicants’ counsel.
Hearing on Tuesday 30 August 2022
The following morning, the second day of the two-day listing, there was again no appearance by the respondent. The matter proceeded at 10.15am as scheduled and the applicants’ counsel addressed his final submissions, the details of which I discuss later in this judgment.
Unbeknown to the Court at the time, an email was sent to my chambers at 10.28am by Maria Di Gregrio ‘Director, Erudite Legal” (copied to [email protected]) which stated:
To Justice Forbes
On behalf of Mr Kuksal, I again write to your chambers to advise that an application for judicial review of the LSB decision to appoint Mr Rapke was lodged yesterday. Please find attached a copy of the lodged documents.
Mr Kuksal is currently working with the other parties in the proceeding to have the matter listed for an urgent application or injunction.
Could the court please advise us about its plans and any orders that were made yesterday in respect to the continuation of the proceedings.
Mr Kuksal is currently unaware of the current schedule for the proceeding.
Ms Di Gregorio sent a further email to my chambers at 10.51am which attached a copy of a Supreme Court originating motion.
The emails referred to above did not come to my attention until after the applicants’ counsel had concluded his submissions and I had reserved my judgment.
In any event neither Ms Di Gregorio nor Erudite Legal had standing to engage with the Court. Neither was Mr Kuksal’s legal representative. Orders made on 4 July 2022 made it abundantly clear that the matter was to proceed on 29 and 30 August 2022 at 10.15am. Furthermore, prior to the luncheon adjournment the previous day, I informed the parties, including Mr Kuksal, that the matter would proceed at 2.15pm at which time the applicants would open their case. There could have been no confusion about the Court’s ‘schedule’ for this proceeding. Mr Kuksal simply disengaged from the hearing.
UNCONTESTED FACTS
The applicants’ evidence was not challenged and unless otherwise indicated I accept it.
Nicolas Moreno Rivero (MLG813/2021)
Mr Moreno Rivero swore to the truth of his affidavit dated 25 February 2022 and adopted that statement as his evidence. He did not require an interpreter.
In his affidavit, Mr Moreno Rivero deposed to being employed by Mr Kuksal on a casual basis as a cleaner from 11 August 2017 to 1 October 2017. Mr Moreno Rivero says he “got the job”[32] through a friend, Elizabeth Melendez, who also worked for the respondent.
[32] Moreno Rivero affidavit at [8]
Mr Moreno Rivero deposed to meeting Mr Kuksal on 11 August 2017. During this encounter, Mr Kuksal informed Mr Moreno Rivero that the work he would perform would include assembling furniture, such as chairs and TV units, and that all necessary tools would be provided for him to do so. Thereafter, Mr Moreno Rivero says he commenced working irregularly on an ‘as needs’ basis for the respondent.
Whilst his duties included assembling furniture, Mr Moreno Rivero said that he also cleaned apartments, collected and delivered guests’ dry cleaning and laundry and completed various other tasks at Mr Kuksal’s request.[33] All the necessary cleaning equipment was provided by Mr Kuksal.[34] Mr Moreno Rivero deposed to being required to update the respondent “constantly” on the progress of his work. Mr Kuksal also directed Mr Moreno Rivero to the locations he needed to attend to complete his work, how the work should be performed and how long it should take[35].
[33] Moreno Rivero affidavit at [17]
[34] Moreno Rivero affidavit at [27]
[35] Moreno Rivero affidavit at [25]
Mr Moreno Rivero deposes to being informed by Mr Alvarez Nino (another applicant) that the hourly rate was $18 and in order to be paid, he would need to obtain an ABN number and submit an invoice to Mr Kuksal.[36] On 26 August 2017, Mr Moreno Rivero applied for and received an ABN[37].
[36] Moreno Rivero affidavit at [13]
[37] Moreno Rivero affidavit at [18]
At paragraph [19] of his affidavit, Mr Moreno Rivero asserts that on 10 September 2017 he was invited by Mr Kuksal to attend his office to sign a contract which would “help protect his company’s privacy” and enable Mr Moreno Rivero to be paid[38]. After signing the contract, Mr Kuksal informed Mr Moreno Rivero that he would be paid within three days of submitting his invoice.
[38] Moreno Rivero affidavit at [19]
Mr Moreno Rivero claims that he worked 162.42 hours for which he was only paid $1,719[39]. In total, Mr Moreno Rivero claims that he is still owed $3,951.48 in outstanding entitlements and interest, comprised of:
(1)$2,786.40 in unpaid wages;
(2)$428.01 in unpaid superannuation;
(3)$148.97 in reimbursements; and
(4)$588.10 in interest.
[39] Moreno Rivero affidavit at [38]
Mr Moreno Rivero was not issued with any payslips during his employment with the respondent.
Carolina Corrales Rhenals (MLG812/2021)
With the assistance of the Spanish interpreter, Ms Corrales Rhenals swore to the truth of her affidavit dated 25 February 2022 and adopted that statement as her evidence.
The Court asked Ms Corrales Rhenals whether she was able to understand her statement, given that it was written in English, and whether she understood what it meant to swear to the truth of that statement. Ms Corrales Rhenals confirmed that she understood.
Ms Corrales Rhenals deposes to having been employed by Kornucopia Pty Ltd, an entity solely controlled by Mr Kuksal, as a casual worker between 2 July 2017 and 14 August 2017[40].
[40] Corrales Rhenals affidavit at [9]
In her affidavit, Ms Corrales Rhenals gave evidence that she was first introduced to Mr Kuksal after she responded to a job advertisement[41] for a ‘hospitality novice’ position that she had come across on Seek.com[42]. She attended a job interview with Mr Kuksal on 1 July 2017 in respect of that position, and was informed by him that she would be working as a contractor, would be paid $18 per hour, would be paid weekly and needed an ABN to be paid[43].
[41] Corrales Rhenals affidavit, annexure A-2
[42] Corrales Rhenals affidavit at [10] and [11]
[43] Corrales Rhenals affidavit at [12]
Ms Corrales Rhenals accepted the job but never signed a written contract[44].
[44] Corrales Rhenals affidavit at [15]
During the time she performed work, Ms Corrales Rhenals’ duties included cleaning apartments, assembling furniture and buying cleaning products and linen. Despite obtaining an ABN, Ms Corrales Rhenals deposes that she was not genuinely running her own business as she had no control over when and how the work was to be performed and she did not provide any tools or equipment of her own to complete the necessary tasks.
At [22], Ms Corrales Rhenals deposes to having introduced six friends to Mr Kuksal for the purposes of employment. It is Mr Rhenals’ evidence that Mr Kuksal would ask her to “explain the duties involved to anyone who might be interested”[45].
[45] Corrales Rhenals affidavit at [22]
Ms Corrales Rhenals claims to have worked 281 hours for Kornucopia for which she was paid $2,000. She says that she is owed a further $7,256.82 in outstanding entitlements, comprised of:
(1)$5,425.31 in unpaid wages;
(2)$705.40 in unpaid superannuation; and
(3)$1,126.11 in interest.
At paragraph [26] of her affidavit, Ms Corrales Rhenals deposes to contacting Mr Kuksal to ask for the outstanding entitlements, but claims that Mr Kuksal evaded her telephone calls and on one occasion informed Ms Corrales Rhenals that he was not going to pay her[46].
[46] Corrales Rhenals affidavit at [26]
Neither Kornucopia nor the respondent provided the applicant with any payslips.
Juan Camilo Pineros Torres (MLG809/2021)
Mr Pineros Torres was called to give evidence and swore to the truth of his affidavit dated 25 February 2022. He adopted that statement as his evidence.
The Court asked Mr Pineros Torres whether he saw a copy of his statement written in English and whether he understood its contents when he swore to the truth of that statement. Mr Pineros Torres confirmed that he understood the contents of his written statement in English.
Mr Pineros Torres deposes to being employed by Mr Kuksal and/or Kornucopia Pty Ltd as a cleaner on a casual basis from 18 August 2017 to 24 August 2017.
Mr Pineros Torres was first introduced to Mr Kuksal through a friend, Mr Oscar Sierra, who also worked for Mr Kuksal and/or Kornucopia Pty Ltd. Mr Sierra informed Mr Pineros Torres that the respondent needed a housekeeper for which he would be paid $18 per hour[47].
[47] Pineros Torres affidavit at [8] and [9]
On 17 August 2017, Mr Pineros Torres approached Mr Kuksal and asked whether he needed another person to work for him and whether he pays $18 per hour. Mr Kuksal confirmed that was the case and asked the applicant to commence work the following day[48].
[48] Pineros Torres affidavit at [10]
On or around 18 August 2017, Mr Kuksal informed Mr Pineros Torres that he would be engaged as an independent contractor, he would need to obtain an ABN in order to work and would be required to issue invoices in order to be paid[49].
[49] Pineros Torres affidavit at [11]
Whilst working for Mr Kuksal and/or Kornucopia Pty Ltd, Mr Pineros Torres’ duties included cleaning apartments, purchasing and assembling furniture and assisting with guest check-in and check-out. According to Mr Pineros Torres, all the necessary cleaning equipment used to perform his work was provided by the respondent[50].
[50] Pineros Torres affidavit at [18]
Mr Pineros Torres deposed that Mr Kuksal would direct him on which location he needed to complete his work, how the work was to be undertaken and how long each job should take[51]. He says that he was required to constantly update Mr Kuksal on the progress of his work[52]. Mr Pineros Torres also says that Mr Kuksal would often call him to allocate shifts with very little notice. Mr Pineros Torres said that if he was to reject a last-minute shift due to other obligations, Mr Kuksal would warn him that he would lose his job if he did not work.
[51] Pineros Torres affidavit at [15]
[52] Pineros Torres affidavit at [16]
Mr Kuksal advised Mr Pineros Torres that his timesheet would need to be approved before he was able to draw up an invoice. Similarly, when Mr Pineros Torres would advise the respondent of his hours worked over the phone, Mr Kuksal would tell Mr Pineros Torres that he would be paid for those hours[53].
[53] Pineros Torres affidavit at [21]
On 25 August 2017, Mr Pineros Torres resigned from his position. Upon resignation, Mr Kuksal told the applicant to send him an invoice for the work he had performed[54]. Despite his promise, Mr Pineros Torres was not paid for the 40 hours he claims to have worked. Mr Pineros Torres claims that he is owed a total of $1,352.12 in outstanding entitlements from the respondent and/or Kornucopia Pty Ltd, comprising:
(1)$1,039.23 in unpaid wages;
(2)$98.73 in unpaid superannuation; and
(3)$214.16 in interest.
[54] Pineros Torres affidavit at [23]
Whilst Mr Pineros Torres made attempts to contact Mr Kuksal and recover his entitlements, the applicant says that the respondent has evaded enquiries.
Payslips were not issued to the applicant during the course of his employment.
Juan Camilo Rios Londono (MLG808/2021)
Mr Rios Londono was called to give evidence. He swore to the truth of his affidavit dated 25 February 2022 and adopted that statement as his evidence.
Mr Rios Londono was asked whether he understood the contents of his statement, considering it was written in English. The applicant confirmed that when he swore to the truth of the affidavit he understood its contents and the importance of the oath.
The applicant deposes to being employed as a cleaner by Mr Kuksal and/or Kornucopia Pty Ltd between 25 August 2017 and 28 August 2017.
On 25 August 2017, Mr Rios Londono was informed by his friend, Mr Pineros Torres, that there was work available with the respondent where the hourly rate was $18. That night, the applicant replaced Mr Pineros Torres for a shift assembling furniture and he met Mr Kuksal for the first time. Once the job was complete, Mr Kuksal asked Mr Rios Londono to come in the following day to commence cleaning at the same location.
On 26 August 2017, Mr Rios Londono commenced performing work as a cleaner for Mr Kuksal. That day he brought his partner, Ms Garcia Calvo, along with him as Mr Kuksal had expressed the previous day that he was looking for additional workers.
Mr Rios Londono described his role as general cleaning including vacuuming carpets, collecting and delivering guests’ dry cleaning, wiping down counter-tops and the like. He deposes to “working under the strict direction and control of the Respondent”[55] as Mr Kuksal would direct him when and where to work and how to complete a task. According to Mr Londono, all the necessary cleaning equipment used to perform the work was provided by the respondent.
[55] Rios Londono affidavit at [13]
Annexure JCRL-1 of Mr Londono’s affidavit comprises text messages between the applicant and Mr Kuksal which illustrate that Mr Kuksal asked Mr Rios Londono to work quicker, to perform various tasks and to show him the work he had completed.
On 28 August 2017, Mr Kuksal offered the applicant a contract of employment. During this conversation, Mr Kuksal is said to have advised Mr Rios Londono that if he wanted to be paid for the work he had completed, he needed to sign the contract.
Mr Rios Londono deposes to doing some “calculations” for himself and concluding that the salary offered by the respondent was “too low”. As such, he informed Mr Kuksal that he did not want the proposed job and requested payment for hours already worked. Mr Kuksal assured the applicant that he would be paid.
Despite attempting to contact Mr Kuksal on numerous occasions and in various forms, Mr Rios Londono has been unsuccessful in recovering his wages. He claims to have worked 23 hours for which he received no payment.
Mr Rios Londono alleges he is owed a total of $879.52 in outstanding entitlements, comprised of:
(1)$676.31 in unpaid wages;
(2)$64.25 in unpaid superannuation; and
(3)$138.96 in interest.
Mr Rios Londono was not provided with any payslips during the course of his employment.
Wilmer Jahir Alvarez Nino (MLG806/2021)
Mr Alvarez Nino was called to give evidence and swore to the truth of his affidavit dated 25 February 2022. Apart from correcting a minor discrepancy in paragraph 6 of his affidavit, namely that the year ‘2018’ should read ‘2017’, that statement was adopted as Mr Alvarez’s evidence.
The applicant was asked by the Court whether he had a good understanding of the English language, and whether when he first gave his solicitor’s authority for his statement to be filed with the Court, he had seen that statement in English and understood its contents. Mr Alvarez Nino confirmed that he did.
Mr Bunce showed the applicant a document annexed to an affidavit of Ms Lulu Xu dated 7 February 2022, an affidavit which had been filed in the proceedings by the respondent[56]. The documents comprised an email exchange between Mr Alvarez Nino and Mr Kuksal, Mr Alvarez Nino and the FWO, and Mr Kuksal and the FWO. In substance, these emails relate to an enquiry made to the FWO by Mr Alvarez Nino in September 2017 in respect of his claim for outstanding entitlements. Mr Alvarez Nino identified the documents and they were tendered and marked by the Court as Exhibit A1[57].
[56] Exhibit A1 (CB 934-966)
[57] Exhibit A1 (CB 934-966)
At [5] of his affidavit, Mr Alvarez Nino deposes to being employed as a cleaner and furniture assembler by Mr Kuksal and/or Kornucopia Pty Ltd between the period 10 August 2017 to 25 August 2017.
Mr Alvarez Nino was first told by a friend, Mr Prieto, that Mr Kuksal needed more people working for him to assemble beds and that he pays $18 per hour.
On 10 August 2017, the applicant and Mr Prieto met Ms Xu at 889 Collins St and were directed by Ms Xu to move two beds from one apartment to another, and to subsequently assemble the beds. Once those tasks were completed, Ms Xu escorted Mr Alvarez Nino and Mr Prieto to meet Mr Kuksal. During this encounter, Mr Kuksal asked the applicant whether he already had a job and whether he or Mr Prieto could stay back and continue working.
Mr Alvarez Nino offered to continue undertaking work with Ms Xu and Mr Kuksal that evening. The work comprised of packing up a storage apartment, which contained cleaning equipment and clothes that belonged to the respondent and transporting them to Mr Kuksal’s apartment.
Later that evening, the respondent asked the applicant whether he was able to return the following morning to commence working from 9.00am, to which Mr Alvarez Nino said that he could. Mr Kuksal also asked Mr Alvarez Nino whether he had an ABN and stated that he would be required to issue invoices in order to be paid for his work.
It is Mr Alvarez Nino’s evidence that his work for the respondent and/or Kornucopia Ptd Ltd included ensuring that the residential apartments were presentable for guests, which involved vacuuming carpets, washing and changing bed linen, wiping down counter-tops and assembling furniture.
Mr Alvarez Nino gave evidence that at approximately 10.00pm on 14 August 2017 Mr Kuksal requested that Mr Alvarez Nino attend his apartment to discuss a “job offer”. The applicant arrived at Mr Kuksal’s building and deposes to having a conversation to the following effect:
Respondent: “Where do you work?”
Applicant: “I work in the Stadium on weekends on a casual basis.”
Respondent: “How long have you been working there?”
Respondent: “How much are you earning at the moment?”
Applicant: “About $700.00 per week.”
Respondent: “Okay. I would like you to quit your job at the Stadium and come to work for me during the week. You will need to sign a contract.
Applicant: “How many hours per week would that be?”
Respondent: “I will need you to be available to work whenever I need you. This is a secure job. You would be able to grow in the company. You would eventually become one of the managers, like Lulu. I would eventually be able to sponsor you to get a working visa.”
Applicant:“Could you tell me more about wages and the hours. When would I be rostered to work? I have classes every day.”
Respondent: “I understand.”
Applicant: “So, how much are you offering to pay?”
Respondent: “Maybe something like $700 per week. There is also a bonus every 3 months if you do a good job. I wouldn’t give you anything that I wouldn’t take. My lawyers have advised that the contract is perfectly fine.”
Mr Alvarez Nino says that he rejected Mr Kuksal’s job offer and left the building.
On 16 August 2017, the applicant sent the respondent an invoice for $324.00 via email.
On 29 August 2017, the applicant sent the respondent a further invoice for $36.00 via email.
On 30 August 2017, Mr Alvarez Nino called Mr Kuksal to remind him to pay the two invoices he had submitted for work performed. The applicant deposes at [39] that Mr Kuksal responded to his request by saying words to the following effect:
“You, Elisabeth, and Ricardo have been talking about his [sic] job offer and then Elisabeth has rejected it …The offer was fine. My lawyers have said it is legal … I have a super mind and am incredibly smart. You are stupid compared to me …You guys are taking advantage of my generosity …In order to pay you, I need you to sign a contract with me…”[58]
[58] Alvarez Nino affidavit at [39]
Mr Alvarez Nino deposes that although he provided Mr Kuksal with invoices and cited an ABN, he was never genuinely running his own business. He asserts, for example, that he did not provide any tools or equipment of his own, he did not and could not enter into contracts to provide services to other people, and he had no control over when and how any of the work was to be done. Consistent with that evidence, Mr Alvarez Nino further claims that he “was working under the strict direction and control of the Respondent”[59]. He says that Mr Kuksal would advise him when and where to work, what to do and how to do it, and he was ultimately subject to the respondent’s control.
[59] Alvarez Nino affidavit at [21]
On 4 September 2017, Mr Alvarez Nino made a complaint to the FWO about monies owed by the respondent[60]. Both Ms Wood, the FWO’s Customer Solutions Officer managing the applicant’s enquiry, and Mr Alvarez Nino himself, contacted the respondent by email to make inquiries about the applicant’s outstanding entitlements. In response to the issues raised by Ms Wood and Mr Alvarez Nino, Mr Kuksal stated that he “categorically” rejected such claims.
[60] Exhibit A1 (CB 934-966)
To date, Mr Alvarez Nion has been unsuccessful in recovering any wages for the 20 hours work performed for Mr Kuksal. Mr Alvarez Nino claims to be owed a total of $675.94 in outstanding entitlements and interest, comprised of:
(1)$519.58 in unpaid wages;
(2)$49.36 in unpaid superannuation; and
(3)$107.00 in interest.
The applicant was never provided with payslips.
Geraldine Torres Amezquita (MLG811/2021)
Ms Torres Amezquita was called to give evidence and was assisted by a Spanish interpreter.
The applicant swore to the truth of her affidavit dated 25 February 2022 and adopted that statement as her evidence.
The Court enquired with Ms Torres Amezquita as to whether she had seen her statement in English, whether she understood its contents and was satisfied that they were true and correct. Ms Torres Amezquita indicated that she had seen the document in English, that she understood its contents and that the document was true and correct.
In her affidavit, Ms Torres Amezquita deposes that she was employed on a casual basis between 9 September 2017 and 17 November 2017 to work for a business called ‘Eldorado Docklands’ which she says was solely controlled by Mr Kuksal. Annexure GA-2 of her affidavit provides an extract of the company’s ABN which reveals that it was owned by Kornucopia Pty Ltd and/or The State Of Our Times Pty Ltd.
The applicants submit, therefore, that it is open to the Court to look at the totality of the relationship, including post-contractual conduct, to determine who, in fact, was the contracting party. For the reasons in the foregoing paragraphs, I agree that this is the correct approach.
The particular issue in the current matters involves the question of whether the employer was a corporate entity (Kornucopia Pty Ltd or Avant-Garde Pty Ltd) or a natural person (Mr Kuksal). The applicants submit that focusing on the principles of contract law and the principles of agency, and having regard to the totality of the relationship, it is open to the Court to find that Mr Kuksal was the true employer in every case.
The law pertaining to agency was addressed extensively in the applicants’ written submissions and I will not rehearse those submissions here.
Suffice to say, the applicants submit that on ordinary contractual principles, the person who enters a contract is usually considered to be the contracting party unless it is clear that he or she is acting as an agent of another. In circumstances where parties negotiate and contract face to face, they are presumed to contract with the person in front of them - the so-called inter praesentes presumption.
The applicants also submit that it is necessary to look at the terms of the contract itself and, where there is no written contract, the objective circumstances around its formation. The Court should consider who it was that offered the employment, the conduct of the parties at the time of engagement including what they did and said and what was known to both of them. Relevantly, the applicants submitted that an individual cannot be both a principal and agent, so the Court should objectively determine in what shoes Mr Kuksal was standing at the time the arrangements were made. The Court should also turn its mind to other markers such as who exercised the practical and legal control and direction of the employees, who made decisions about hiring, disciplinary issues, remuneration and termination. It is also relevant to consider who actually paid the remuneration or, where remuneration was not paid, where the demands for payment were directed.
Counsel for the applicants also submitted that whilst subjective beliefs are not normally admissible, there is a line of authority to support the view that the beliefs of an employee as to the identity of their employer is admissible and is entitled to weight[100]. I accept that proposition, although the weight to be afforded to such evidence may vary on a case-by-case basis.
[100] see Central Innovation v Garner (No 4) [2020] FCA 1796 at [51] and cases cited therein
Turning now to the evidence.
Mr Kuksal denies he personally engaged the workers and suggests a corporation contracted to engage their labour. By his responses filed to the applications in August 2021, Mr Kuksal contends that they were at all material times independent contractors of Kornucopia Pty Ltd or Avant Garde Ventures Pty Ltd or (in the case of Alvarez Nino and Corrales Rhenals) an employee of Kornucopia Pty Ltd.
However, in written[101] and oral submissions the applicants advanced a number of uncontested facts which inform the conclusion that Mr Kuksal was personally the employer. These included the following:
[101] See in particular the Applicants’ submissions filed on 4 September 2022 at [29]-[40] and the evidentiary references therein
(1)the outward manifestations of the dealings with at least five of the applicants pointed to engagement by Mr Kuksal;
(2)Mr Kuksal personally interviewed most of the applicants. It was he who made decisions about the engagement and the applicable rate of pay;
(3)Mr Kuksal did not say that he was acting on behalf of Kornucoppia or Avant-Garde or any other entity;
(4)as the contracts were entered face-to-face, an inter praesentes presumption that the workers were dealing with Mr Kuksal personally may apply;
(5)Mr Kuksal gave them no documents on engagement which referred to Kornuoppia or any other entity;
(6)Mr Kuksal met the applicants at his home, not in a corporation’s office. Often meetings with the respondent were late at night. It is not a situation where the workers were interviewed in a corporate office, surrounded by company insignia;
(7)many of the employees were international students and it cannot be presumed that they are familiar with Australian corporate structures;
(8)Mr Kuksal told Alvarez Nino that invoices were to be issued ‘to him’; Mr Kuksal said to Alvarez Nino – ‘send me the invoice’ Mr Kuksal told Garcia Calvo – ‘he would pay me’. Mr Kuksal said to Pineros that he would pay and told Pineros to ‘send him an invoice’;
(9)the offer to Alvarez Nino for ongoing work was an offer ‘to come and work for me’. The offer to Garcia Calvo was to ‘work for him’. Mr Kuksal told Rios ‘he was looking’ for workers. Mr Kuksal said to Pineros that work was ‘for him.’ Ms Xu told Alvarez Nino she was a manager working for Mr Kuksal, not that she was a manager working for Kornucoppia. Mr Kuksal said that the applicants work for him “you don’t work for Lulu”;
(10)applicants sent tax invoices to ‘Shiv’ or ‘Shivesh’ and phone messages and texts about invoices and payment were directed to Mr Kuksal;
(11)invoices were sent to Mr Kuksal and he was solely responsible for receiving, reviewing and processing the applicants’ invoices. Payments were made by Mr Kuksal: Bank account credits from ‘Shivesh Kuksal’ (description: “Payment 4 service”);
(12)in relation to the FWO enquiries on behalf of Mr Alvarez, correspondence was addressed to Mr Kuksal (and not to any corporation) and Mr Kuksal did not respond that he had engaged Alvarez Nino on behalf of a corporation;
(13)directions regarding work were given personally by Mr Kuksal. It was he who exercised the human resources management of the employees;
(14)Mr Kuksal provided the equipment; and
(15)as employees, the applicants should have received a payslip which should have contained the employer’s name and its ABN if they have one. No payslips were provided and so, for that reason, they are unable to rely on that information as to who is the employer. The workers should not be disadvantaged by the failure of the respondent, or a business under the control of the respondent as sole director and shareholder, to fulfil statutory obligations.
Conclusion
In a written submission filed in these proceedings the respondent states, inter alia:
“The only person who can tell the Court who is the employer is [the respondent] himself.”[102]
[102] Respondents Outline of Submissions at [34]
However, Mr Kuksal did not give evidence in this proceeding and did not make himself available for cross-examination. Nor did he cross-examine the applicants or challenge their evidence.
Guided by the relevant principles, the substance and reality of the situation[103], informed by my objective assessment of the totality of the relationship[104] and the state of affairs between the parties[105], leads me to conclude that Mr Kuksal was the true employer of each of the applicants. The matters referred to in paragraph [294] stand as compelling evidence in favour of that finding.
[103] Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174 at [57] per Buchanan J
[104] Re C&T Grinter Transport Services Pty Ltd (in liq) & Grinter Transport Pty Ltd (in liq) (controller appointed) [2004] FCA 1148 per Finn J at [20]
[105] Pitcher v Langford(1991) 23 NSWLR 142 and Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [61]-[62], as cited in Gothard v Davey [2010] FCA 1163 and Central Innovation v Garner (No 4) [2020] FCA 1796
The consequence of that finding is that I am satisfied on the evidence that there was at all material times an employment relationship between Mr Kuksal and each of the applicants as alleged in the applications. It also leads to the conclusion that where an applicant has alleged that a corporate entity other than Mr Kuksal was the employer, I find as a matter of substance and reality that no relevant distinction can be drawn between Mr Kuksal and those entities and that they are in effect one and the same. The alternative plea, that Mr Kuksal was the employer, or that he was involved in the conduct of the alleged employer, is made out.
ENTITLEMENTS UNDER THE FW ACT AND INDUSTRIAL INSTRUMENTS
The applicants must establish that the relief sought relates to “an amount that an employer was required to pay to, or on behalf of, an employee under the FW Act or a fair work instrument”[106].
[106] FW Act s 548(1A)(a)(i)
The applicants contend that their employment at the relevant times was classified as Guest Service (Grade 1) under the Hospitality Industry (General) Award 2010. Pursuant to section 48 of the FW Act, the Award covers the employees and employer. Each of the applicants alleges that the employer breached several clauses of the Award and that each is owed wages and superannuation representing the loss that they have suffered as a result of the contraventions. Each applicant also seeks an order for interest pursuant to s 547 of the FW Act.
The Award covers, to the exclusion of any other Modern Award, employers in the hospitality industry throughout Australia and their employees.[107] The term “hospitality” is defined to include “private hotels, guest houses or services apartments” as well as “hostels or any other type of residential accommodation”[108].
[107] Hospitality Industry (General) Award 2010 (“Award”) clause 4.1
[108] Award clause 4.2
Pursuant to clause 4.2 of the Award, a Guest Service (Grade 1) employee means an employee who is engaged in any of the following:
(1)performing laundry or linen duties, including carrying out minor repairs to linen or clothing and working with flat materials;
(2)collecting and delivering guests’ personal dry cleaning and laundry, linen and associated materials to and from accommodation areas;
(3)performing general cleaning duties; and
(4)parking guests’ cars.
Each of the applicants gave evidence about their duties which put them squarely within the classification they assert. As discussed above, each of the applicants gave evidence that they performed low skilled menial duties in the nature of cleaning, housekeeping, assembling and moving furniture, changing linen, collecting dry-cleaning and the like. All work is in the nature of guest services and it was performed in relation residential short-stay apartments located in Melbourne.
I am satisfied on the evidence that each of the applicants and Mr Kuksal were covered by the Award in relation to the work they performed as his employees.
Was each applicant paid for the work they performed in accordance with the applicable industrial instrument?
Each of the applicants contends that they were employed on a casual basis. Pursuant to clause 13.1 of the Award, a casual employee is an employee who is engaged as such.
I am satisfied on the evidence that each of the applicants was engaged as such and not as full-time or part-time employees. The evidence establishes that the applicants did not have a regular pattern nor guaranteed number of hours that would indicate permanent employment. The applicants worked as and when they were directed to do so by Mr Kuksal or his offsider.
Casual employees covered by the Award are entitled to a 25% casual loading over the base Grade 1 rate. A casual employee is entitled to a minimum payment for 2 hours work on each occasion they are required to attend work[109].
[109] Award clause 13.2
The applicable hourly rates for a casual Guest Service (Grade 1) Employee during the Employment Period were as follows:
·$23.51 per ordinary working hour (Monday to Friday);
·$25.64 per hour for late nights (Monday to Friday, 7.00pm- Midnight);
·$26.70 per hour for early mornings (Monday to Friday, 7.00pm- Midnight);
·$28.22 per hour on Saturdays; and
·$32.92 per hour on Sundays.
Each of the applicants has given evidence about the hours they worked, amounts they were paid and their calculations of what they are still owed under the Award. Those claims have been set out earlier in this judgment and can be found in each of the amended applications filed in the proceeding.
The evidence that:
(1)the work alleged to have been performed was, in fact, performed; and
(2)the applicable compensation paid and owing has been correctly calculated;
has not been contested in any of the affidavits filed by the respondent. The applicants were not cross-examined.
Were the applicants entitled to be paid superannuation?
Each applicant contends that he or she was entitled to have 9.5% of his or her total wages paid into his nominated superannuation fund.
Pursuant to clause 28.2(a) of the Award, the applicants were entitled to superannuation at 9.5% under the Superannuation Guarantee (Administration) Act 1992 (Cth):
Employer contributions
(a)An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
Conclusion
I am satisfied that the applicants were employed by Mr Kuksal and that the employees and Mr Kuksal were covered by the Award, a “fair work instrument” for the purposes of section 548(1A). I am satisfied that they performed work as casual employees and that they would be classified as grade 1 employees under the Award.
As I have found that the applicants were employees, payslips should have been issued to them pursuant to section 536 of the FW Act. Payslips should have been issued within one day of payment for work performed and should have included any information prescribed by the regulations. Such information would have included details of the hours worked, the applicable rate of pay and other matters.
The applicants allege a contravention of section 536 (for which no specific relief is sought) and contend that, if made out, it would then would enliven section 557C, which provides that unless Mr Kuksal has a reasonable excuse, he bears the burden of disproving the allegations of hours worked.
For present purposes it is not necessary for me to make a formal finding in relation to that submission, but I accept the observation of Judge Riethmuller (as he then was) in Fair Work Ombudsman v Pulis Plumbing [2017] FCCA 3013 where he said at [18]:
Ordinarily, a court would accept even the most slight and generalised evidence of an employee as to the hours of employment in circumstances where an employer does not produce appropriate records.
This is such a case. I am satisfied that the applicants’ claims in relation to alleged underpayments have been established and that each is entitled to the relief they seek in their applications.
The calculations of interest claimed in the applications as updated in the tables attached to the applicants’ submissions filed on 4 September 2022, will need to be revisited. The parties will be ordered to confer and agree on the calculation of interest to the date of judgment. In the absence of agreement within 14 days, the parties shall file competing orders within seven days and the Court will determine the matter on the papers.
ACCESSORIAL LIABILITY OF THE RESPONDENT
The question of whether the respondent was involved in contraventions of the FW Act is the third legal issue posed by the applicants.
By reason of my findings that each of the applicants performed work as an employee and that Mr Kuksal was in truth their employer, it is not strictly necessary for me to decide this matter given Mr Kuksal’s primary liability for the applicants’ claims. However, should I be wrong in my prior analysis and findings, I will address the matter.
Section 550 states as follows (headings included):
550 Involvement in contravention treated in the same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)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;
(b)has induced the contravention whether by threats or promises or otherwise;
(c)has been in any way, by act or mission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention
The controversy around whether the Court has power to make an order against an accessory in a small claims proceeding under section 548 has been resolved in my judgment in Kuksal [No.1]. For the reasons set out in that decision I am satisfied that the Court has jurisdiction in a small claim to make a compensatory order against a person who was involved in a contravention, even if the principal contravenor is not a party to the proceeding.
By their amended applications all eight applicants allege, in the alternative, that if they are found to have been employed by a company owned and controlled by Mr Kuksal (rather than by Mr Kuksal personally) the Court should find that Mr Kuksal was “involved in” the contraventions of the employing entity within the meaning of section 550 of the FW Act, and therefore, liable as an accessory. The applicants seek compensatory orders against Mr Kuksal in respect of that accessorial liability.
Mr Kuksal did not give evidence in the proceeding and was not cross-examined, but he did file a number of common form affidavits in which he denied liability as an accessory. Mr Kuksal’s position as set out in those affidavits is that he:
(1)never required or instructed the applicants to work for him;
(2)had no active or operational or administrative involvement in the management of the companies;
(3)never had an active involvement in the management of the human resources function of the companies; and
(4)had no significant role in the recruitment or supervision of the applicants.
The relevant principles as to “involvement” and accessorial liability were discussed by White J in Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [227]-[234]. In sum, the central principles are:
(1)to be knowingly concerned in a statutory contravention, the person must have been an intentional participant with knowledge, at the time of contravention, of the essential elements constituting it[110];
(2)constructive or imputed knowledge is not enough; actual knowledge is required. But actual knowledge may be inferred from “exposure to the obvious”. It is not necessary that the person also knows that the elements amount to a contravention. Put another way, a person may be an accessory without knowing that the conduct in which he or she is involved is unlawful[111]; and
(3)the person must have engaged in conduct which implicates or involves her or him in the contravention, so that there is a “practical connection” between the person and the contravention[112].
[110] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [229]
[111] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [233]
[112] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [227]
Subsequently, the relevant principles were discussed by the Full Court in Fair Work Ombudsman v Hu [2019] FCAFC 133 (Hu), including the decisions regarding the requirement that the accessory have actual knowledge of the essential elements of the contravention as discussed in Fair Work Ombudsman v Devine Marine Group Ltd [2014] FCA 1365 (Devine Marine) and EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134.
The applicants submit, and I accept, that it is settled law (as per the Full Court in Hu, applying Devine Marine) that accessorial liability:
(1)requires actual knowledge of the essential elements of the contravention and not imputed knowledge; and
(2)does not require knowledge that the essential elements constitute a contravention.
The applicants concede that for liability to be found the accessory must be shown to have engaged in conduct which implicates him in the contraventions so as to demonstrate that there is some practical connection between him and the contravention[113].
[113] Fair Work Ombudsman & Foot & Thai Massage [2021] FCA 1241 at [781]
The applicants accept that it must be established that Mr Kuksal knew the essential elements that makes them employees. He does not necessarily need to be to shown to have engaged in sham contracting, nor does he necessarily need to know that there has been a contravention, but he must be shown to have had knowledge of the difference between employees and independent contractors and the functions and the activities of the applicants enough to know that they would be properly classified as employees.
The applicants submit that the degree of knowledge required of the essential elements of a contravention will vary on a case-by-case basis. It is submitted that the extent of knowledge required of the specific terms of a relevant industrial instrument for example, might depend upon what is alleged. For example, where an employee has not been paid anything for their work, it would be sufficient for the respondent to have knowledge of the fact that an industrial instrument or a provision of the FW Act requires the employees to be paid – an inference which could be readily drawn. On the other hand, where employees have been underpaid a particular amount or at an incorrectly low rate, it might be necessary for the alleged accessory to have knowledge that the industrial instrument requires payment for certain work at a particular rate.
Further, where an alleged accessory is aware of a system producing certain outcomes and those outcomes constitute contraventions of the FW Act, the applicants submit that it is unnecessary to show that the alleged accessory knew the details of each of those outcomes in order to establish the requisite knowledge. A person may be knowingly concerned in a contravention of the FW Act even though the person does not know the details of the number of hours a particular employee worked or when the hours were worked[114].
[114] Grouped Property Services at [957], EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 at [34]; Fair Work Ombudsman v Foot & Thai Massage [2021] FCA 1241
Counsel for the applicants submit that the Court can be comfortably satisfied of Mr Kuksal’s practical connection with the contraventions. To that end they rely upon the same conduct and evidence upon which the Court has found that the applicants were in an employment relationship and that Mr Kuksal was in truth their employer. It is not necessary to rehearse that evidence again but for the reasons underpinning my findings on the earlier questions, I agree that there exists a practical connection which implicates Mr Kuksal in the contraventions.
Briefly, the evidence shows that Mr Kuksal was the guiding mind of the companies. He was the sole director and shareholder. He was in effective control of the human resource and payroll function. He interviewed applicants. He made decisions about the rate of pay. He expressed to at least some of the applicants what that rate of pay was.
Mr Kuksal gave directions about how work was to be done, so he knew the function of the workers and what they were doing. He received frequent updates via text message about the progress and completion of tasks. Complaints about non-payment were directed to Mr Kuksal and it was Mr Kuksal who made the decision not to pay. As the sole director, company secretary, and sole shareholder of Kornucopia, he was in the position to make those payments.
I am also satisfied that Mr Kuksal had knowledge of the difference between employees and independent contractors. There is evidence that in January 2017 Mr Kuksal disclosed an intention to engage people as employees[115] – prior to his engagement of any of the applicants. At that time Mr Kuksal contacted the FWO regarding his intention to employ staff and engaged in a discussion about the applicable award – which he believed would be the General Hospitality Award – and the NES. The applicants submit Mr Kuksal was aware that if he did employ workers he knew what award would have to be applied to them. However, armed with that knowledge, Mr Kuksal subsequently purported to engage workers as independent contractors rather than employees. The applicants submit that the Court should infer that he made that choice consciously or at least with wilful blindness as to its consequences.
[115] Gabriella Marchetti affidavit affirmed on 30 June 2022, annexure GM-10 (CB 483-492)
The applicants submit that Mr Kuksal’s knowledge of the difference between employees and contractors was cemented from at least 18 September 2017. By that date, Mr Kuksal had been provided with a fact sheet from the FWO which both describes the major indicia to distinguish between the two; it also gives an explanation about unlawful sham contracting. It also explains employee entitlements such as leave and superannuation, which is relevant because superannuation is claimed by each of the applicants. Mr Kuksal responded to the FWO and said, among other things that “I am well aware of the information you have provided”[116], suggesting knowledge of such information prior to that date.
[116] CB 934
Mr Kuksal had also received a representation from Mr Alvarez Nino earlier in September 2017 wherein Mr Alvarez Nino asserted that he was not an independent contractor but an employee. Mr Kuksal responded to Mr Alvarez Nino and said “I categorically reject these claims”.
The applicants submit, further, the Mr Kuksal’s knowledge of the difference between employees and independent contractors can be inferred from his own hiring practices[117]. There is evidence that Mr Kuksal hired at least one person, Ms Xu, as a direct employee but chose to engage others as independent contractors.
The applicants also submit that the Court should infer that Mr Kuksal has more than a rudimentary understanding of business and employment law. Mr Kuksal deposes that he is experienced in business and the law. He has run or been involved in many companies including a law firm. He is listed as the director of at least seven companies. He has represented to the FWO[118] that he knows what is involved in setting up an enterprise agreement, understands the NES and understands the award framework.
[118] Gabriella Marchetti affidavit affirmed on 30 June 2022, annexure GM-10 (CB 483-492)
The applicants submit that Mr Kuksal was aware of the system of work because he set up the business in which they worked and he directed them, he was aware that the employees were working, and he was aware that they had not been paid in accordance with the Award or at all. It is submitted that these are the essential elements of the contravention and that it is not necessary for him to know the exact hours that each employee was working.
Conclusion
As I found in Kuksal [No.1], the Court’s power to make orders in relation to an application which is dealt with as a small claim resides in section 545 of the FW Act. Section 548(2) constrains the exercise of the Court’s power to make a compensatory order to a maximum of $20,000, but it is not a jurisdictional constraint which prohibits the Court’s power in any other respect[119].
[119] Kuksal [No.1] at [85]
Section 548 does not expressly prescribe against whom the Court may make orders under the small claim procedure. Although it is necessary that the order sought by the employee must be one which “relates to an amount” that an employer was requires to pay, it does not follow that the Court is constrained to make an order only as against an employer[120].
[120] Kuksal [No.1] at [86]
An applicant may proceed against a person involved in a contravention even if a claim against the principal contravenor is not pursued. An action may continue against an accessory even when discontinued against the principal contravenor and an accessory may also be liable where, as here, a company has been deregistered.[121]
[121] Kuksal [No.1] at [88], and the authorities cited therein
An application for a compensatory order against an accessory which has been initiated pursuant to section 539, can at the applicants’ election be dealt with as a small claim proceeding under s 548. The Court has jurisdiction to deal with the application as a small claims proceeding and may exercise power pursuant to s 545 to make any order it considers appropriate if satisfied the accessory has contravened a civil remedy provision, subject to any limitation on the exercise of its power prescribed within section 548.
The applicants submit that, on the proper application of the law and relevant principles, the Court should find that if Mr Kuksal was not the primary contravenor he was relevantly involved in the contraventions. I accept that submission and find, on the whole of evidence, that Mr Kuksal was involved in the alleged contraventions.
For the avoidance of doubt, this is a conclusion I have reached on the evidence and on the premise that my primary findings may be challenged and found to be wrong.
Declarations as to other alleged contraventions
There are several contraventions of the FW Act alleged in each of the applications: s 44 (breach of NES), s 45 (contravention of a modern award), s 323 (frequency and method of payment) s 357 (sham contracting), and s 456 (the payslip provision).
Counsel for the applicants informed the Court that he had been instructed to seek declarations in relation to each of those contraventions, despite them not giving rise to civil penalties under the small claims procedure. Furthermore, the applicants also invited the Court to find that Mr Kuksal’s conduct amounted to a serious contravention under section 557A.
The applicants submit that the Court has power to grant broad relief pursuant to s 545. The applicants submit that although penalties are not available under the small claims procedure, it would nonetheless be appropriate for the Court to make declarations given the seriousness of the contraventions and to have the public record reflect the Court’s condemnation of the Mr Kuksal’s conduct. It is submitted in effect that compensation to each of the applicants should be regarded as insufficient to convey the Court’s opprobrium.
Although I can see considerable force in the applicants’ submission, I am not inclined to make declarations in this proceeding Declaratory relief is not an entitlement which automatically follows a finding of liability. The exercise of judicial discretion to make declarations in any given case requires careful consideration[122].
[122] As to the appropriateness and purpose of declaratory relief, see Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934 at [59]-[70] per Snaden J
As I have discussed elsewhere, the small claims procedure is primarily directed at correcting underpayments as the principal (if not only) relief. The scheme of section 548 does not permit legal representation as of right, it relaxes the rules of evidence, and it aims to provide an informal right of redress where modest underpayments are concerned. Matters of proof are perhaps not as stringent as they might be if a respondent were facing the risk of civil penalties.
The declarations sought by the applicants would in effect amount to findings that a party has engaged in quasi-criminal conduct for which civil penalties apply, even if no penalties are awarded. Even more so, a declaration of a “serious contravention” would in effect convey a finding by the Court that the respondent’s conduct engages the significantly higher penalty regime (x 10).
The small claims procedure, at least on this occasion, is not an appropriate vehicle. If declarations are sought in relation to contraventions of civil remedy provisions under the FW Act it would in my view have been more appropriate to proceed down the conventional course, where the rules of evidence do apply and alleged breaches of civil remedy provisions are subjected to a more rigorous evidentiary burden.
That is not to say that the Court does not have the power, in a small claims proceeding, to make declarations. That is not a matter I propose to formally determine now. But assuming such power does exist, in the exercise of my discretion on this occasion I decline to make the declarations sought.
Nonetheless, I am prepared to accept that the applicants are vulnerable workers who have been denied the basic entitlements of employment. They have been greatly inconvenienced in this proceeding and their claims have been subjected to unnecessary delay and complexity. I anticipate that in prosecuting these matters the applicants and/or their representatives have incurred significant cost, disproportionate to the amounts claimed. Their experience has proven to be everything but the informal process contemplated by the legislative scheme.
As to the Court’s view of the respondent’s conduct, I am content for the facts and my findings in this lengthy judgment to speak for themselves.
DISPOSITION
For the reasons set out above, I find that each of the following applicants was an employee of the respondent and was at all material times covered by the Award. I find that each of the applicants performed work for the respondent consistent with the duties of a Guest Service (Grade 1) classification under the Award on the days and for the hours alleged in their respective Amended Applications.
Judgment will be entered against the respondent in each of the matters:
(1)MLG806/2021- Mr Wilmer Jahir Alvarez Nino;
(2)MLG807/2021 - Ms Ana Melisa Garcia Calvo;
(3)MLG808/2021- Mr Juan Camilo Rios Londono;
(4)MLG809/2021 - Mr Juan Camilo Pineros Torres;
(5)MLG810/2021 - Mr Leonardo Fabio Hernandez Alarcon;
(6)MLG811/2021 - Ms Geraldine Torres Amezquita;
(7)MLG812/2021 - Ms Carolina Corrales Rhenals; and
(8)MLG813/2021 - Mr Nicolas Moreno Rivero.
Each of the applicants is entitled to the financial relief claimed in their respective Amended Applications, save that interest on any unpaid amounts should be recalculated to the date of this judgment. I will make orders as to the manner of resolving any dispute as to interest.
The respondent will be ordered to pay the amounts ordered to each of the entitled applicants within 28 days of the date of my final orders.
I certify that the preceding three hundred and sixty (360) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 24 November 2023
SCHEDULE OF PARTIES
MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021Applicants
Fourth Applicant:
JUAN CAMILO PINEROS TORRES
Fifth Applicant:
LEONARDO FABIO HERNANDEZ ALARCON
Sixth Applicant:
GERALDINE TORRES AMEZQUITA
Seventh Applicant:
CAROLINA CORRALES RHENALS
Eighth Applicant:
NICOLAS MORENO RIVERO
- AGLC
- Alvarez Nino v Kuksal (No 4) [2023] FedCFamC2G 1051
- Case
- [2023] FedCFamC2G 1051
- Decision Date
CaseChat Overview and Summary
The court found that the applicants were employees of the respondent, not of the corporations he controlled, based on the evidence that the respondent personally interviewed the applicants, made decisions about their engagement and pay rates, and gave directions regarding their work. The court rejected the argument that the applicants were independent contractors because they did not receive documents referring to any corporation, and the respondent did not claim to be acting on behalf of any corporation when engaging the applicants. The court also found that the respondent was the true employer because he provided the equipment, was responsible for receiving and processing the applicants' invoices, and made the payments. The court concluded that the applicants were covered by a fair work instrument and that the respondent was liable for the underpayments as the principal employer.
The court declined to make declarations about the alleged contraventions of the Fair Work Act because it considered that the small claims procedure was not an appropriate vehicle for such relief. The court noted that the small claims procedure is primarily directed at correcting underpayments and does not permit legal representation or allow for the same evidentiary burden as in a conventional proceeding. The court held that if declarations were sought in relation to contraventions of civil remedy provisions, it would have been more appropriate to proceed through the conventional course of action. The court granted the applicants' claims for underpayments and interest, and ordered the respondent to pay the amounts owed to each applicant.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For the avoidance of doubt, this is a conclusion I have reached on the evidence and on the premise that my primary findings may be challenged and found to be wrong.Declarations as to other alleged contraventions There are several contraventions of the FW Act alleged in each of the applications: s 44 (breach of NES), s 45 (contravention of a modern award), s 323 (frequency and method of payment) s 357 (sham contracting), and s 456 (the payslip provision). Counsel for the applicants informed the Court that he had been instructed to seek declarations in relation to each of those contraventions, despite them not giving rise to civil penalties under the small claims procedure. Furthermore, the applicants also invited the Court to find that Mr Kuksal’s conduct amounted to a serious contravention under section 557A. The applicants submit that the Court has power to grant broad relief pursuant to s 545. The applicants submit that although penalties are not available under the small claims procedure, it would nonetheless be appropriate for the Court to make declarations given the seriousness of the contraventions and to have the public record reflect the Court’s condemnation of the Mr Kuksal’s conduct. It is submitted in effect that compensation to each of the applicants should be regarded as insufficient to convey the Court’s opprobrium. Although I can see considerable force in the applicants’ submission, I am not inclined to make declarations in this proceeding Declaratory relief is not an entitlement which automatically follows a finding of liability. The exercise of judicial discretion to make declarations in any given case requires careful consideration[122]. [122] As to the appropriateness and purpose of declaratory relief, see Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934 at [59]-[70] per Snaden J As I have discussed elsewhere, the small claims procedure is primarily directed at correcting underpayments as the principal (if not only) relief. The scheme of section 548 does not permit legal representation as of right, it relaxes the rules of evidence, and it aims to provide an informal right of redress where modest underpayments are concerned. Matters of proof are perhaps not as stringent as they might be if a respondent were facing the risk of civil penalties. The declarations sought by the applicants would in effect amount to findings that a party has engaged in quasi-criminal conduct for which civil penalties apply, even if no penalties are awarded. Even more so, a declaration of a “serious contravention” would in effect convey a finding by the Court that the respondent’s conduct engages the significantly higher penalty regime (x 10). The small claims procedure, at least on this occasion, is not an appropriate vehicle. If declarations are sought in relation to contraventions of civil remedy provisions under the FW Act it would in my view have been more appropriate to proceed down the conventional course, where the rules of evidence do apply and alleged breaches of civil remedy provisions are subjected to a more rigorous evidentiary burden.