Basi v Namitha Nakul Pty Ltd

[2022] FCA 712

FEDERAL COURT OF AUSTRALIA

Basi v Namitha Nakul Pty Ltd [2022] FCA 712

File number(s):

NSD 523 of 2019
NSD 730 of 2019

Judgment of:

HALLEY J

Date of judgment:

21 June 2022

Catchwords:

INDUSTRIAL RELATIONS – allegations of contraventions of ss 45, 323, 325, 343 and 345 of the Fair Work Act 2009 (Cth) (FW Act) relating to employment of applicants – application of Restaurant Industry Award 2010 (Award) – terms and conditions of applicants’ employment by respondents – whether one applicant entitled to payment on quantum meruit basis for work performed – whether s 557C of the FW Act operates in proceedings – where payslips admitted to be incorrect – where conflicting evidence about duties performed by applicants – whether applicants afforded breaks required by the Award – correct classification of applicants’ duties under the Award – whether applicants’ hours of work were arranged in contravention of the Award – whether applicants were paid amount payable under the Award for work performed – serious contraventions of Award established

INDUSTRIAL RELATIONS – alleged loans made by second respondent to applicants – no loans found to be made – alleged loans properly characterised as “cashback payments” – where second respondent made threats, exerted undue influence or pressure, and made misrepresentations contrary to the FW Act, in relation to cashback payments and payments to cover PAYG tax obligations and visa sponsorship application costs

INDUSTRIAL RELATIONS – where second respondent knowingly concerned in contraventions of civil penalty provisions of FW Act committed by first respondent

Legislation:

Evidence Act 1995 (Cth) s 128

Fair Work Act 2009 (Cth) ss 12, 44, 45, 46, 47, 90, 117, 323, 325, 341, 342, 343, 344, 345, 360, 362, 535, 536, 545, 546, 550, 557A, 557C, 793

Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth)

Migration Act 1958 (Cth)

Explanatory Memorandum, Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017

Fair Work Regulations 2009 (Cth) regs 3.31, 3.32, 3.33, 3.34, 3.36, 3.37, 3.46

Restaurant Industry Award 2010 cls 3, 4.1, 5, 20, 31.1, 31.2, 30.2, 32, 33, 35, 35.2

Cases cited:

Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 2) [2019] FCA 670

Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848

Auimatagi and Another v Australian Building and Construction Commissioner (2018) 267 FCR 268; [2018] FCAFC 191

Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) (2015) 239 FCR 461; [2015] FCA 1196

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2021] HCA 17

Bluescope Steel (AIS) Pty Ltd and Another v Australian Workers’ Union (2019) 270 FCR 359; [2019] FCAFC 84

Burke v LFOT Pty Limited (2002) 209 CLR 282; [2002] HCA 17

Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531

Construction Forestry Mining andEnergy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36

Ellis v Barker (1871) 40 LJ Ch 603

Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72

Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848

Fair Work Ombudsman v IE Enterprises Pty Ltd & Anor [2019] FCCA 2952

Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627

Jagatramka v Wollongong Coal Limited [2021] NSWCA 61

Jones v Dunkel (1959) 101 CLR 298

Kucks v CSR Limited (1996) 66 IR 182

Kuhl v Zurich Financial Services Australia Ltd and Another (2011) 243 CLR 361; [2011] HCA 11

National Tertiary Education Industry Union v Commonwealth of Australia and Another (2002) 117 FCR 114; [2002] FCA 441

Nield v Mathieson [2014] FCAFC 74

Pavey & Matthews Proprietary Limited v Paul (1986) 162 CLR 221; [1987] HCA 5

Payne v Parker [1976] 1 NSWLR 191

Sabapathy v Jetstar Airways and Others (2021) 283 FCR 348; [2021] FCAFC 25

Stratton Finance Pty Limited v Webb (2014) 314 ALR 166; [2014] FCAFC 110

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

501

Date of hearing:

13-17 and 28-29 September 2021, 1 October 2021

Counsel for the Applicants:

Ms L Doust

Solicitor for the Applicants:

Work Lawyers

Solicitor for the Respondents:

Mr B Gillard of Gillard Consulting Lawyers

ORDERS

NSD 523 of 2019

BETWEEN:

MIDHUN BASI

Applicant

AND:

NAMITHA NAKUL PTY LTD

First Respondent

VAISAKH MOHANAN USHA

Second Respondent

ORDER MADE BY:	HALLEY J
DATE OF ORDER:	21 JUNE 2022

THE COURT ORDERS THAT:

1.The parties provide agreed draft declarations and orders to give effect to the reasons for judgment delivered today and, in default of agreement, each party file and serve draft declarations and orders it proposes to be made, on or before 19 July 2022.

2.The applicant file and serve written submissions as to penalty (limited to 5 pages) and any affidavit evidence on or before 12 July 2022.

3.The respondents file and serve written submissions as to penalty (limited to 5 pages) and any affidavit evidence on or before 19 July 2022.

4.The proceeding be listed for a case management hearing at 9.30 am on Tuesday, 26 July 2022.

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

ORDERS

NSD 730 of 2019

BETWEEN:

SYED HAIDER

Applicant

AND:

NAMITHA NAKUL PTY LTD

First Respondent

VAISAKH MOHANAN USHA

Second Respondent

ORDER MADE BY:	HALLEY J
DATE OF ORDER:	21 JUNE 2022

THE COURT ORDERS THAT:

1.The parties provide agreed draft declarations and orders to give effect to the reasons for judgment delivered today and, in default of agreement, each party file and serve draft declarations and orders it proposes to be made, on or before 19 July 2022.

2.The applicant file and serve written submissions as to penalty (limited to 5 pages) and any affidavit evidence on or before 12 July 2022.

3.The respondents file and serve written submissions as to penalty (limited to 5 pages) and any affidavit evidence on or before 19 July 2022.

4.The proceeding be listed for a case management hearing at 9.30 am on Tuesday, 26 July 2022.

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

TABLE OF CONTENTS

INTRODUCTION	[1]
Admitted contraventions of the FW Act	[8]
Contested claims advanced by the applicants	[9]
Principal conclusions	[17]
THE PARTIES AND WITNESSES	[18]
Overview	[18]
Mr Midhun Basi	[23]
Mr Syed Haider	[40]
Namitha Nakul Pty Ltd and Mr Vaisakh Mohanan Usha	[52]
Ms Priyadevi Sunil Kumar	[63]
Mr Sujith Ayyappadas Sulatha	[68]
Ms Sandhya Sujith Sulatha	[73]
FACTUAL BACKGROUND	[79]
Wollongong Restaurant	[79]
Nowra Restaurant	[87]
Financial position of Namitha Nakul	[94]
OVERVIEW OF LEGISLATIVE AND INDUSTRIAL SCHEME	[96]
Modern Award Compliance – s 45	[96]
The Restaurant Industry Award 2010	[101]
Fair Work Act 2009 (Cth)	[118]
Obligation to pay amounts payable – s 323	[118]
Unreasonable requirement by employer that employee pay or spend money – s 325	[121]
Part 3-1 – General Protections	[127]
Obligation to keep records – s 535	[130]
Fair Work Act Remedies – Part 4-1	[136]
THE APPLICANTS’ EMPLOYMENT	[140]
When did Mr Basi commence employment with Namitha Nakul?	[140]
When did Mr Haider commence employment with Namitha Nakul?	[152]
Background facts	[154]
Evidence of Mr Haider, Mr Usha and Ms Kumar	[160]
Consideration	[182]
Is Mr Haider entitled to payment by Namitha Nakul for the work he performed on the Nowra Premises between about July 2016 and October 2016 on a quantum meruit basis?	[195]
Submissions	[195]
Relevant principles	[199]
Consideration	[202]
Does s 557C operate in the present proceedings?	[206]
What were the hours of work performed by Mr Basi and Mr Haider at the Restaurants?	[219]
Submissions	[219]
Evidence	[224]
Payslips	[229]
Where was the food served at the Nowra Restaurant prepared?	[236]
Consideration	[240]
Were Mr Basi and Mr Haider afforded the breaks required by the Award when working for Namitha Nakul at the Restaurants?	[253]
What duties did Mr Basi and Mr Haider perform?	[261]
Evidence	[262]
Consideration	[272]
What is the appropriate Award classification for the employment of Mr Basi and Mr Haider by Namitha Nakul?	[277]
Did Namitha Nakul arrange the hours of work of Mr Basi and Mr Haider in a way that contravened the Award?	[287]
What did Namitha Nakul pay Mr Basi for his work?	[294]
Did Namitha Nakul pay Mr Basi the amount payable to him pursuant to the Award for the work he performed?	[299]
Prior to 15 November 2016	[299]
From 15 November 2016	[306]
What did Namitha Nakul pay Mr Haider for his work?	[328]
Did Namitha Nakul pay Mr Haider the amount payable to him pursuant to the Award for the work he performed?	[331]
Was Mr Usha knowingly concerned in any of the alleged contraventions committed by Namitha Nakul?	[336]
Did Namitha Nakul and Mr Usha contravene the Award in respect of Mr Basi and Mr Haider?	[340]
DID MR USHA MAKE LOANS TO MR BASI AND MR HAIDER?	[343]
Introduction	[343]
Alleged loans to Mr Basi	[345]
Did Mr Usha lend Mr Basi $3500 on 28 October 2016?	[346]
Did Mr Usha lend Mr Basi $5000 on 10 January 2017?	[358]
Did Mr Usha organise a loan to Mr Basi on about 25 January 2017?	[364]
Did Mr Usha lend Mr Basi $10,000 on 19 January 2018?	[378]
Alleged loans to Mr Haider	[385]
Did Mr Usha lend Mr Haider $1900 on or about 15 November 2016?	[388]
Did Mr Usha make three loans of $500 to Mr Haider?	[392]
CASHBACK ARRANGEMENTS	[396]
Did the requirement to make the cashback payment contravene ss 323 and 325 of the FW Act?	[411]
WERE ANY CONTRAVENTIONS “SERIOUS CONTRAVENTIONS”?	[418]
COERCION, UNDUE INFLUENCE AND MISREPRESENTATIONS	[429]
Introduction	[429]
Relevant statutory provisions and principles	[432]
Cashback arrangements	[444]
August 2017 Basi Payment	[456]
January 2018 Basi Payment	[471]
September 2017 Haider Payment	[485]
DISPOSITION	[496]

REASONS FOR JUDGMENT

HALLEY J:

INTRODUCTION

1. In related proceedings that were heard together, the applicants, Mr Midhun Basi (Mr Basi) (in NSD523/2019) and Mr Syed Haider (Mr Haider) (in NSD730/2019) allege that their former employer, the first respondent Namitha Nakul Pty Ltd (Namitha Nakul), contravened the Fair Work Act 2009 (Cth) (FW Act) in multiple respects and that the sole director of Namitha Nakul, the second respondent, Mr Vaisakh Mohanan Usha (Mr Usha), was involved in those contraventions and further personally contravened the FW Act.

2. On the third day of the hearing, 15 September 2021, the proceedings against Ms Priyadevi Sunil Kumar (Ms Kumar) (the third respondent in NSD523/2019) and Mr Sujith Ayyappadas Sulatha (Mr Sulatha) (the fourth respondent in NSD523/2019 and the third respondent in NSD730/2019) were discontinued.

3. The proceedings raise for determination the all too familiar difficulties of applying the provisions of industrial statutes and awards to family run businesses that fail to keep accurate and complete employment records of their staff. Difficulties that are exacerbated, as was the case here, where employees have been granted or are seeking sponsorship for visas permitting them to work in this country. Regrettably, in order to accommodate these difficulties, much of the testimonial evidence given by witnesses had to be carefully scrutinised, contemporaneous employment records given little weight and ultimately the apparent logic of events and facts capable of being objectively established were given greater weight than usual in making factual findings.

4. Namitha Nakul operated two Indian restaurants, the “Adithya Kerala” restaurant at 166 Keira St Wollongong, NSW (Wollongong Restaurant) and the “Adithya Kerala” restaurant at 78 Junction St Nowra, NSW (Nowra Restaurant).

5. The applicants contend that throughout their employment as cooks by Namitha Nakul at the Wollongong Restaurant and the Nowra Restaurant (together, Restaurants) they were required to work excessive hours without any formal breaks, they were not paid their award entitlements, and they were unlawfully required to pay a significant proportion of their wages back to the respondents as either repayments of alleged loans made to them by Mr Usha or to cover Pay as You Go (PAYG) tax liabilities on their wages and visa application costs.

6. The respondents contend that the applicants have overstated the hours that they worked for Namitha Nakul but were nevertheless always paid the wages stipulated in their employment agreements, at least in the case of Mr Basi. They contend that the applicants never accrued any entitlement to overtime and notwithstanding the terms of their employment agreements and alleged experience, the applicants worked more as kitchen hands than cooks. The respondents further contend that the cash amounts that the applicants paid back to them from their wages were agreed repayments of loans that Mr Usha had made to them. The respondents deny that they ever requested or accepted payments from the applicants to meet PAYG tax liabilities or visa application costs.

7. Mr Basi and Mr Haider seek: declarations that Namitha Nakul committed contraventions and/or serious contraventions of the FW Act; declarations that Mr Usha was involved in those contraventions and/or committed contraventions and serious contraventions of the FW Act; the imposition of penalties on the respondents and orders that those penalties be paid; and an order that the respondents pay compensation. In addition, Mr Haider seeks an order that the respondents pay him an amount on a quantum meruit basis for work performed by him between July 2016 and 31 October 2016.

   Admitted contraventions of the FW Act

8. The respondents have admitted the following contraventions of the FW Act, with respect to the Restaurant Industry Award 2010 (Award) and the National Employment Standards (NES), which they submit were admitted at the earliest possible opportunity:

   (a)Section 45 (being a breach of clause 5 of the Award): failure to display the Award and NES at the Restaurants;

   (b)Sections 44 and 90(2) (being contraventions of the NES): failure to pay the applicants for their untaken annual leave at the end of their employment;

   (c)Section 45 (being a breach of cl 35.2(b) of the Award): failure to pay the applicants additional leave loading of 17.5%;

   (d)Section 45 (being a breach of cl 30.2(a) of the Award): failure to pay Mr Haider superannuation contributions;

   (e)Section 323 (in relation to method and frequency of payment), limited to the payment of entitlements regarding annual leave and leave loading; and

   (f)Sections 44 and 117 (being a breach of the NES): failure to give Mr Haider notice or payment in lieu thereof on his termination.

   Contested claims advanced by the applicants

9. The specific claims that the applicants make against the respondents that are contested can be summarised as follows.

10. First, Mr Basi and Mr Haider allege that over the course of their employment with Namitha Nakul they were required to work for at least 12 hours per day, six days per week without being afforded breaks, contrary to the provisions of the Award.

11. Second, Mr Basi and Mr Haider allege that they were not paid the amounts due and owing to them, contrary to the Award.

12. Third, Mr Basi alleges that during much of his employment, Mr Usha demanded that he make cash payments of approximately $511 per fortnight, and that if he did not do so the business would close and he would not have a job.

13. Fourth, Mr Basi alleges that between May and August 2017, Mr Usha demanded he pay an amount in excess of $6000 in respect of Namitha Nakul’s PAYG income tax liability for him, and that if he failed do so it would affect Mr Basi’s migration status.

14. Fifth, Mr Basi also alleges that in December 2017 and January 2018 Mr Usha demanded that he pay $1710 in respect of Namitha Nakul’s PAYG income tax liability for him, and that if he failed to do so Mr Usha would shut the restaurant and Mr Basi would be “in trouble”.

15. Sixth, Mr Haider alleges that Mr Usha demanded he pay $1400 in respect of Namitha Nakul’s sponsorship of Mr Haider’s Temporary Work (Skilled) (subclass 457) visa, which Mr Haider paid one week later.

16. Seventh, Mr Haider alleges that he is entitled to make a quantum meruit claim for the work he performed at the behest of Namitha Nakul and Mr Usha to prepare the Nowra Restaurant for trading between July and October 2016.

    Principal conclusions

17. For the reasons that follow, I have concluded that:

    (a)Mr Basi was employed full time by Namitha Nakul between 19 July 2016 and 27 August 2018 at the Restaurants at a classification of Cook Grade 4 at the Wollongong Restaurant and subsequently as a Cook Grade 5 at the Nowra Restaurant;

    (b)Mr Haider was employed for an average of 30 hours a week by Namitha Nakul in the period between 10 July 2016 and 30 October 2016, and then in the period between 31 October 2016 and 14 August 2018 he was employed full time by Namitha Nakul at a classification somewhere between Cook Grade 3 and Cook Grade 4, but ultimately closer to Cook Grade 4, at the Restaurants;

    (c)the applicants did not work 12 hour days for six days a week for Namitha Nakul;

    (d)it was not possible to conclude on the balance of probabilities that the applicants had worked overtime hours or had worked for more than five hours on any given day without a break, notwithstanding, to the extent relevant, the operation of s 557C of the FW Act;

    (e)the respondents failed to arrange the hours of work of the applicants in a manner consistent with the Award and failed to pay weekend holiday rates in contravention of clause 34.1 of the Award, and therefore s 45 of the FW Act, this failure amounted to a serious contravention for the purposes of s 557A of the FW Act, and Mr Usha was knowingly involved in that serious contravention;

    (f)Namitha Nakul failed to pay the amounts due and payable to the applicants under the Award in contravention of clause 20 of the Award, and therefore s 45 of the FW Act, this failure amounted to a serious contravention for the purposes of s 557A of the FW Act, and Mr Usha was knowingly involved in that serious contravention;

    (g)Mr Usha did not make any loans to Mr Basi or Mr Haider;

    (h)Namitha Nakul through Mr Usha demanded that Mr Basi make payments back to Namitha Nakul from his wages of approximately $511 each fortnight by way of cashback payments in contravention of ss 323 and 325 of the FW Act, this demand amounted to a serious contravention by Namitha Nakul for the purposes of s 557A of the FW Act, and Mr Usha was knowingly involved in that serious contravention;

    (i)Mr Usha made demands to Mr Basi for payment of money to cover Namitha Nakul’s PAYG liability for Mr Basi in contravention of ss 325, 343 and 345 of the FW Act, and that, by reason of s 793(1) of the FW Act, Namitha Nakul also made those contraventions;

    (j)Mr Usha made demands to Mr Haider for payment of money to cover Namitha Nakul’s visa sponsorship costs in contravention of s 325 of the FW Act, and that, by reason of s 793(1) of the FW Act, Namitha Nakul also made those contraventions; and

    (k)Mr Haider is entitled to a quantum meruit payment from Namitha Nakul for the work that he undertook between 10 July 2016 and 30 October 2016 to prepare the Nowra Restaurant for trading.

    THE PARTIES AND WITNESSES

    Overview

1. Before commenting on each of the witnesses who gave evidence in the proceedings, it is necessary for me to make some general observations about the weight that I have been able to give to that evidence.

2. First, the hearing was conducted exclusively over Microsoft Teams. English was not the first language of any of the witnesses and the assistance of an interpreter was required for some witnesses. In considering the weight I have been able to give to the evidence of each witness, I have taken these matters into account. I have also had regard to the difficulties faced by the cross examiners seeking to test the evidence of witnesses in the proceedings because of language difficulties experienced by witnesses having to comprehend and respond to questions put to them, questions that were often framed in language familiar to cross examiners but not to lay witnesses, particularly the use of propositions expressed in the negative.

3. Second, I am satisfied that the evidence advanced by the applicants and the respondents concerning the employment agreements that the respondents provided to the Department of Immigration and Border Protection (Department) was inherently implausible and could not be accepted. It exposed both Mr Usha and Mr Basi, and to a lesser extent, Mr Haider to contraventions of the Migration Act 1958 (Cth) (Migration Act) and related legislation and regulations, and as a result I provided each of them with certificates pursuant to s 128 of the Evidence Act 1995 (Cth) with respect to that evidence.

4. Third, a necessary consequence of the second observation made above, was that self-serving and conflicting testimonial recollections of the witnesses on several critical matters had to be assessed against the apparent logic of events and the facts capable of being objectively established, in particular, entries recorded in bank statements, rather than contemporaneous employment records that might otherwise have been assumed to be an accurate account of the matters that they purport to record.

5. Fourth, none of the witnesses who gave evidence in the proceedings were independent, in that each was a party or a close family relation of Mr Usha or, in the case of Ms Kumar, had been living with Mr Usha’s family for many years. I am satisfied that this lack of independence led each witness to overstate aspects of their evidence by generalising from at times imperfect recollections of specific events to provide generalised evidence consistent with the respective cases sought to be advanced by the applicants and the respondents. This phenomenon was particularly prevalent in the evidence directed at the hours worked by the applicants, the specific cooking responsibilities and skills of the applicants and the extent of the cooking undertaken at the Nowra Restaurant. Again, I have been guided by the apparent logic of events and the facts capable of being objectively established in making findings of fact, rather than this generalised evidence of practices and experiences given by the witnesses in the course of the hearing.

   Mr Midhun Basi

6. Mr Basi is the applicant in proceedings NSD523/2019 (Basi proceedings).

7. He is an Indian citizen. He was born on 21 October 1987. His first language is Malayalam, an Indian regional language spoken in the state of Kerala, India.

8. Mr Basi has a Bachelor’s Degree in Hotel Management from Calicut University in Kerala and a Master’s in Business Management from Victoria College, Nottingham in the United Kingdom. Both courses were taught in English.

9. In March 2015 he passed the International English Language Testing System General Training course.

10. Prior to his arrival in Australia in 2016, Mr Basi was employed as:

    (a)a cook for Emirates in-flight catering service in Dubai from August 2009 to January 2011, in which he cooked meals in a range of Indian cuisines;

    (b)a third chef in an Indian restaurant serving Keralan cuisine in Nottingham in 2012 while undertaking his Master’s Degree, in which he prepared and plated meals and carried out stock takes;

    (c)a cook preparing and storing Indian food for the Casino Flight catering company in Kerala from July to December 2013; and

    (d)a head chef in an Indian restaurant in Port Moresby, Papua New Guinea, from May 2014 to January 2015, in which his duties included preparing and plating meals, managing and ordering stock and supervising another cook.

11. On 7 July 2015 Mr Basi was issued with a Certificate III in Commercial Cookery by VETASSESS. VETASSESS is an organisation in Australia that conducts skills assessments for migration applications.

12. On 13 April 2016, Mr Basi was granted a Temporary Work (Skilled) (subclass 457) visa by the Department. Mr Basi’s sponsor was Chellappas Pty Ltd (Chellappas), a company that operated a restaurant and food court in Gosnells, near Perth in Western Australia, and a restaurant in Albany. Shortly after Mr Basi arrived in Australia and commenced working for Chellappas, he was advised by Chellappas that given the financial difficulties that Chellappas was encountering with their Albany restaurant, he should look for a new sponsor for his subclass 457 visa.

13. Mr Basi searched on Gumtree and located a classified advertisement for a position as an Indian cook in Wollongong.

14. In or about June 2016, Mr Basi had a three day trial at the Wollongong Restaurant with Mr Usha.

15. In or about July 2016, following the three day trial, Mr Usha made a written offer of full-time employment to Mr Basi dated 19 July 2016 (Basi Employment Offer).

16. The Basi Employment Offer provided that:

    Namitha Nakul Pty Ltd Trading as Adithya Kerala Restaurant agrees to employ you in the full time position of Cook with our business, subject to the successful outcome of your 457 Nomination transfer to our Company.

    Your base salary, based on a 40 hour week will be $55,000.

    Your hourly rate is $26.44 per hour for a 40 hour week.

    Your employment terms and conditions are covered by the Hospitality Industry (General) Award 2010. Your rate of pay is Market Rate.

    The position is permanent, full time and for 4 years.

17. On 15 November 2016, the Department approved Mr Basi’s nomination by Namitha Nakul as a cook for the purpose of his subclass 457 visa.

18. Mr Basi prepared two statements filed on 20 April 2020 and 5 March 2021 that were tendered in the proceedings. In his statements he describes his employment by Namitha Nakul at the Wollongong Restaurant and subsequently the Nowra Restaurant and the various payments that he received and made to Namitha Nakul and Mr Usha. He was extensively cross examined.

19. Mr Basi presented as a cautious witness who listened carefully to the questions that he was asked and he appeared to answer most questions directly and honestly. At various times during his cross-examination Mr Basi showed some hesitation and delay in answering questions, particularly when being pressed as to the timing of his work in the Wollongong Restaurant with Ms Kumar. I am satisfied that the delays with respect to this issue could principally be attributed to genuine confusion arising in the course of a focused and directed cross-examination seeking to lock Mr Basi into supporting the proposition that Mr Basi did not undertake any work at the Wollongong Restaurant prior to the Department’s approval of Namitha Nakul’s sponsorship of Mr Basi on 15 November 2016.

20. Having said that, there were significant aspects of his evidence that could not be accepted; in particular, his claims that he and Mr Haider worked 12 hour days, six days a week, other than on specific and rare occasions, and the extent to which he sought to downplay to what degree food served at the Nowra Restaurant had been initially prepared at the Wollongong Restaurant by Ms Kumar.

21. Nor can I accept Mr Basi’s evidence that he thought that in the period between the employment offer that was made to him on or about 19 July 2016 and the approval of the transfer of his 457 sponsorship to Namitha Nakul on 16 November 2017 that he was being employed pursuant to the terms of the employment agreement. The employment agreement was expressly stated to be subject to the approval of the Department and it provided for a salary to be paid that was equivalent to an after tax $855 per week, not the $600 per week that Mr Basi was receiving in cash during the period between July and November 2016.

22. Ultimately, I have approached Mr Basi’s evidence with some caution and I have generally only accepted it on matters in dispute to the extent that I am satisfied by reference to all the objective circumstances that it is plausible or it is otherwise corroborated by evidence of witnesses other than Mr Haider.

    Mr Syed Haider

23. Mr Haider is the applicant in the proceedings NSD730/2019 (Haider proceedings).

24. Mr Haider is a Pakistani citizen born on 8 December 1987. He was granted a Higher Education Sector (subclass 573) student visa on 13 January 2015 by the Department, and arrived in Australia on 2 February 2015.

25. Mr Haider gave evidence that he undertook an 18-week course “English for Tertiary Studies” at the University of Wollongong between February and June 2015, and that he enrolled in the Master of Professional Accounting course, commencing on or about 17 August 2015. He gave evidence that he deferred the course in November 2015.

26. With regard to his cooking experience, Mr Haider gave evidence that:

    (a)between 2009 and 2014 he worked as a tandoori chef at different restaurants in Karachi, Pakistan, in which he was responsible for tandoori cookery (the cooking of meat and bread in a clay oven heated by a charcoal fire) and occasionally supervising other cooks; and

    (b)in 2015 he worked as a cook at a restaurant, “Garam Masala” in Shellharbour, New South Wales, in which he undertook tandoori cooking, curry preparation and service.

27. On 12 December 2016, Mr Haider obtained a Certificate III trade qualification in Commercial Cookery from FMedge, a private training college in Sydney, in which his previous cooking experience was recognised as “prior learning”.

28. By letter dated 30 May 2017, Mr Haider received a formal offer of employment from Namitha Nakul (Haider Employment Offer).

29. The Haider Employment Offer was in substantially identical terms to the Basi Employment Offer and provided that:

    Namitha Nakul Pty Ltd trading as Adithya Kerala Restaurant agrees to employ you in the full time position of Cook with our business, subject to the successful outcome of your 457 [sic] This Position is for a Cook at Adithya Kerala Nowra Restaurant located at Shop 1, Aroney Way, 78 Junction Street, Nowra 2541.

    Your base salary, based on a 40 hour week will be $55,000.

    Your hourly rate is $26.44 per hour for a 40 hour week.

    Your employment terms and conditions are covered by the Hospitality Industry (General) Award 2010. Your rate of pay is Market Rate.

    The position is permanent, full time and for 4 years.

30. On 5 June 2017, Mr Haider accepted the Haider Employment Offer.

31. On 28 August 2017, Mr Haider applied for a Temporary Work (skilled) (subclass 457) visa, and was granted a bridging visa. His subclass 573 visa expired on 28 September 2017.

32. On 19 October 2017, Mr Haider’s nomination for Namitha Nakul to be his sponsor for the subclass 457 visa was approved, but his application for the subclass 457 visa was refused by the Department on 16 August 2018. Mr Haider appealed that decision on 5 September 2018.

33. From July to October 2016, Mr Haider undertook work at the Nowra Premises to prepare the Nowra Restaurant for the commencement of trading at the end of October 2016. Mr Haider then worked for various periods at both Restaurants until he resigned from his employment with Namitha Nakul during a meeting he had with Mr Usha on a day in the period between 14 August 2018 and 4 September 2018.

34. Mr Haider generally presented as a confident and truthful witness who answered questions that he was asked succinctly and directly. Having said that, as with Mr Basi, there were significant aspects of his evidence that I ultimately could not accept, in particular his claims that he and Mr Basi worked 12 hour days, six days a week, other than on specific and rare occasions, and the extent to which he, in common with Mr Basi, sought to downplay the degree to which a substantial proportion of the food served at the Nowra Restaurant had been initially prepared at the Wollongong Restaurant by Ms Kumar.

    Namitha Nakul Pty Ltd and Mr Vaisakh Mohanan Usha

35. Namitha Nakul is the first respondent in each proceeding.

36. Mr Usha is the director, secretary and sole shareholder of Namitha Nakul, and is responsible for the direction, management and control of the company.

37. Namitha Nakul operated the Wollongong Restaurant at all relevant times and the Nowra Restaurant from at least April 2017. The Wollongong Restaurant and the Nowra Restaurant were 35-seat and 40-seat restaurants, respectively, which served Keralan Indian cuisine for both takeaway and dine-in lunch and dinner.

38. Mr Usha affirmed two affidavits in the proceedings on 7 September 2020 and 28 September 2021, respectively.

39. Mr Usha was not an impressive witness. He frequently provided long winded, self-serving and argumentative responses in the course of his cross-examination. His responses typically had the effect of obfuscating, rather than illuminating, critical issues to be determined in the proceedings.

40. Much of his evidence, in particular his evidence about the alleged loans that he made to Mr Basi, his denials that Mr Basi was employed by Namitha Nakul prior to November 2016 and that Mr Haider worked for the respondents prior to April 2017, was implausible and reflected very poorly on his credit. When challenged in  cross-examination about the alleged loan that he arranged for his brother to advance to Mr Basi, Mr Usha gave the following evidence:

    Mr Usha, what I want to suggest is that anyone who has been approached for a loan on one day and the very same person comes back to them four days later for another loan, their response won’t be to put their brother on the hook for the money. They will be in a state of disbelief. You understand what I’m saying, don’t you?---Yes, but no – because I can tell one more thing, you know. I am the only one, you know, went to her sister home and, you know, met his – his marriage arrangement and everything. But no other, you know, the business owners do that. But in – I – I go from, you know, India. Our culture is like that, help each other, like, you know, that’s the reason, you know, I went to his home and, you know, arrange his marriage and everything. I – I treat like as a, you know, family member. That’s why I did, you know, a lot of, you know, things like this.

    HIS HONOUR: Did you say you treat him like a family member?---Yes.

    And he had only worked for you for eight weeks?---Means, you know, he said a lot of his, you know, the – the poor things in the India, you know, they don’t have money and those of – you know, the – because of the mankind, one side, you know, I can say. So every day he is – sometimes, you know, he is crying for, you know, they tell that stories and he is crying. So that’s, you know, feel – feel, you know, something mankind. That’s the reason why I help him. Because, you know, I already – what I am thinking is a four years visa, he already here, so he working for me, because there is plenty of time to repayment. You know, that’s all, you know, in my mind.

41. As concerning were Mr Usha’s explanations of why loans that he alleged he made personally to Mr Haider in January 2017 were recorded as salary payments on the notations that he made when he transferred the funds from Namitha Nakul’s bank account to Mr Haider, including the following exchanges:

    MS DOUST: Sorry, Mr Usha. Now, do you see the entries on that page for 31 January and 7 February for – in Mr Haider’s bank account?---Yes.

    You’ve described them as “Adithya salary”?---Yes.

    “Vaisakh”?---Yes, yes.

    That’s your words, isn’t it?---That’s to my word but, - - -

    .....?--- - - - you know, that – sorry.

    That’s the entry you’ve made when you transferred the money across to Mr Haider from the Namitha Nakul account?---Yes.

    And - - -?---Sometimes – sorry.

    HIS HONOUR: I don’t think he had finished the answer.

    Had you finished your answer, Mr Usha?---No. The sometimes, you know, the – I transferred, normally, when he ask money. I transferred like that and, plus, you know, he tried to start work with me, you know, once I opened the Nowra. So what was the moneys, you know, after that I transfers I mentioned that’s salary. Because, you know, the future, you know, when I go to the tax agents I had to show them so, you know, the why these moneys goes. And at that times I can’t remember so this is already mentioned there so they can easily identify, “Okay, I gave this one in the salary. I can deduct in the future. So, you know, when I start in Nowra, so I can deduct that money there. So I gave advance and I mentioned there, always I am mentioning. So that’s the reasons I think I mentioned that.

    and,

    HIS HONOUR: So what were you paying him salary for? That is, what were you paying Mr Haider salary for in January of 2017?---That I mentioned in the – you know, the transfer. Because, you know, the tax agent can see that, you know, the why I used that money.

    Yes, because you were paying him for work that he was doing for you?---Yes, I give money, but I said to the tax agent, “That’s money for, you know, the salary, we can deduct it, but it’s the loan.” So it’s paid from, you know, the company, so that’s the reason. We have to show the reason to the tax agent, you know, why we spent this money, why we spent – that’s the questions he will ask.

    Sorry, this was your tax agent?---My tax agent. When I give, you know, the GST – company GST, three months, then we give the bank statement and he will ask, whenever he doubt, you know, the payment, doubt, “Where you spent this moneys,” and, “Where you, you know, transfer this money,” like that. You know, he will ask.

42. Moreover, Mr Usha’s manifest failure to comply with or otherwise appreciate his obligations under the Award and the FW Act, and his apparent willingness to provide instructions that were incorrect to migration agents in relation to visa sponsorship applications and tax agents in relation to the preparation of payslips, also reflected very poorly on his credit.

43. Equally concerning was the unchallenged evidence given by Mr Haider that in response to Mr Basi’s complaints, Mr Usha had requested Mr Haider to sign erroneous backdated worksheets and to sign a statement that contained incorrect representations. Mr Haider stated that on or about 10 August 2018, in the course of Mr Usha seeking to persuade him to sign the erroneous worksheets, Mr Usha told him at the Wollongong Restaurant:

    You are the only witness in Midhun’s complaint you are not a family member so your statement matters a lot. My lawyer is asking you to write a statement. If you give me the statement, I can save you and you can save me. Because if immigration cancels my approval to be your sponsor you will be in trouble.

44. The statement that Mr Usha requested that Mr Haider sign contained representations that were internally inconsistent and, for the reasons I explain subsequently in these reasons, were erroneous, including that Mr Haider never worked on Tuesdays (contrary to other representations in the draft statement and the evidence of Mr Usha in the proceedings), the Nowra Restaurant was only ever open from 11.30 am until 5.00 pm from Wednesday to Sunday (rather than Tuesday to Sunday as accepted by all witnesses in the proceedings), and no work was done at the Nowra Restaurant between 3.00 pm and 5.00 pm (thus ignoring take away orders). The statement was both an attempt to discredit Mr Basi’s claims of the hours that he alleged he worked at the Nowra Restaurant and a relatively flagrant attempt to portray Mr Haider as only working 20 hours a week for four hours a day from Wednesday to Sunday, in order to avoid Mr Haider providing a statement that might provide evidence of potential contraventions of the FW Act and the Migration Act.

1. In short, I was not prepared to accept any evidence given by Mr Usha on any matter in dispute unless it was against interest or corroborated by the evidence of other witnesses or contemporaneous documents that had not been prepared by him or at his direction.  

   Ms Priyadevi Sunil Kumar

2. Before proceedings were discontinued against her, Ms Kumar was the third respondent in the Basi proceedings.

3. Ms Kumar affirmed an affidavit in the proceedings on 29 August 2020 in which she described her involvement in the Restaurants and her dealings with the applicants. She was cross examined.

4. Ms Kumar worked in the Wollongong Restaurant as the Head Chef from March 2017 and supervised the Wollongong Restaurant in Mr Usha’s absence.

5. Ms Kumar has lived with Mr Usha and his family in the same household since 2007. She jointly purchased property with Mr Usha, was party to and guaranteed the lease on the Wollongong Restaurant, provided $10,000 or $20,000 when the lease was entered into, and worked in the business.

6. In assessing the weight I was able to give to Ms Kumar’s evidence, I have taken into account the extent of her connections with Mr Usha. Nevertheless, I was satisfied that Ms Kumar was generally doing her best to tell the truth and not to act as an advocate for Mr Usha. Having said that, I am satisfied that her evidence concerning the limited hours worked by the applicants for Namitha Nakul, the absence of any cooking being undertaken at the Nowra Restaurant and the cooking skills of Mr Basi and Mr Haider was inconsistent with the apparent logic of events, in  particular, the circumstances in which the applicants first came to be employed by Namitha Nakul, the extent of their cooking experience prior to working for Namitha Nakul and their day to day involvement in the kitchen at the Nowra Restaurant. I am satisfied that her evidence on these matters was overstated and given her location in the Wollongong Restaurant, she was not best placed to comment upon these matters.

   Mr Sujith Ayyappadas Sulatha

7. Before proceedings were discontinued against him, Mr Sulatha was the fourth respondent in the Basi proceedings and the third respondent in the Haider proceedings.

8. Mr Sulatha affirmed an affidavit in the proceedings on 24 September 2020 in which he gave evidence of his involvement in the Nowra Restaurant and his dealings with the applicants. He was cross examined.

9. Mr Sulatha is Mr Usha’s brother-in-law. He was sponsored by Mr Usha to come to Australia on a subclass 457 visa as a skilled worker, despite having no prior experience as a restaurant manager. Mr Sulatha was dependent on Mr Usha to come to Australia. He accepted in cross-examination that he felt a sense of obligation to him due to his family relationship.

10. Mr Sulatha worked in a management role in the Nowra Restaurant, and was responsible for the management, direction and control of the Nowra Restaurant in the absence of Mr Usha and Ms Kumar. Mr Sulatha was employed by Namitha Nakul between September 2017 and December 2019.

11. Again, notwithstanding the extent of his relationship with Mr Usha, Mr Sulatha generally presented as an honest and truthful witness but his evidence as to the limited hours worked by the applicants for Namitha Nakul at the Nowra Restaurant, the absence of any cooking being undertaken at the Nowra Restaurant and the cooking skills of Mr Basi and Mr Haider was inconsistent with the apparent logic of events as explained above. I am satisfied that his evidence on these matters was overstated and I have discounted it in making findings on these matters.

    Ms Sandhya Sujith Sulatha

12. Ms Sandhya Sujith Sulatha (Ms Sujith) affirmed an affidavit in these proceedings on 25 September 2020. She gave evidence about the extent to which food served at the Nowra Restaurant was pre-cooked at the Wollongong Restaurant and the responsibilities of the applicants while they were working at the Nowra Restaurant.

13. Ms Sujith is the wife of Mr Sulatha, and the sister of Mr Usha. Her first language is Malayalam.

14. On or about 9 September 2017 she immigrated to Australia with her husband and child.

15. Between September 2017 and January 2020 Ms Sujith and her family lived with Mr Usha and Ms Kumar and their respective families. She commenced working for Namitha Nakul in September 2017, initially for a short period in the Wollongong Restaurant and subsequently in the Nowra Restaurant.

16. Ms Sujith moved to Victoria in January 2020 and her husband, Mr Sulatha, joined her several weeks later in February 2020.

17. Ms Sujith generally presented as an honest and truthful witness. In common with Ms Kumar and Mr Sulatha, however, her evidence as to the limited amount of cooking being undertaken at the Nowra Restaurant and the cooking skills of Mr Basi and Mr Haider was again inconsistent with the apparent logic of events as explained above. I am satisfied that her evidence on these matters was overstated and I have discounted it in making findings on these matters.

    FACTUAL BACKGROUND

    Wollongong Restaurant

18. Namitha Nakul entered into a lease for Shop 4, the Wollongong Restaurant, on 22 January 2016. The lease commenced on 15 January 2016.

19. Between 15 January 2016 and 10 March 2016 the Wollongong Restaurant underwent minor renovations before opening officially as an a la carte restaurant serving South Indian cuisine on 11 March 2016. Namitha Nakul entered into a lease for Shop 2, the Wollongong Restaurant, on 15 October 2017.

20. The opening hours for the Wollongong Restaurant varied from time to time and were:

    (a)between March and April 2016: seven days a week from 10.00 am to 10.00 pm;

    (b)from April 2016 to July 2019: Tuesday through Sunday from 12.00 pm to 10.00 pm;

    (c)from July 2019 to January 2020: Tuesday through Sunday from 12.00 pm to 2.30 pm and from 5.00 pm to 9.30 pm; and

    (d)from January 2020 to March 2020: Tuesday through Sunday from 5.00 pm to 9.30 pm.

21. Between March 2016 and March 2017, Mr Usha was the head chef of the Wollongong Restaurant and had various cooking, supervising, cleaning and management duties.

22. Between March 2017 and March 2020, Ms Kumar was the head chef of the Wollongong Restaurant.

23. The head chef was usually assisted in the kitchen by other employees. The Wollongong Restaurant had two different shifts, a lunch shift from 12.00 pm to 2.30 pm and a dinner shift from 5.30 pm (or 6.00 pm) to 9.30 pm. During the lunch shift the Wollongong Restaurant also offered a lunch special with curries already prepared in warmers in the kitchen.

24. In August 2018, Namitha Nakul terminated its lease for Shop 2 of the Wollongong Restaurant after failing to comply with a final notice of demand from Colliers International dated 29 June 2018 for unpaid rent.

25. In March 2020, Namitha Nakul terminated its lease for Shop 4 and the Wollongong Restaurant was permanently closed.

    Nowra Restaurant

26. On or about 20 September 2016, Namitha Nakul entered into a lease for the Nowra Restaurant at 1/78 Junction Street, Nowra. The lease commenced retrospectively on 24 August 2016. The Nowra Restaurant initially traded under the name “1980’s A Nostalgic Restaurant” and in the period between 31 October 2016 and March 2017 it was operated on a day to day basis by Mr Ashik Thiruvathakath Korundavalapil (Ashik) and his wife Ms Sabitha Ayangil (Sabitha).

27. Between January and March 2017, the Nowra Restaurant was closed three times following health inspections by the Shoalhaven City Council. In mid-March 2017, Mr Usha arranged for renovation works to be undertaken and for an inspection by Shoalhaven City Council to be conducted, before Namitha Nakul commenced operating the Nowra Restaurant in April 2017 under the name “Adithya Kerala Nowra”.

28. Between April 2017 and April 2019, the Nowra Restaurant was open six days a week (Tuesday to Sunday) generally from 11.30 am to 2.30 pm for lunch and from 5.00 pm to 9.00 pm for dinner. Take away orders were received and prepared between lunch and dinner opening times. During lunch the Nowra Restaurant also offered a lunch special with curries already prepared in warmers in the kitchen.

29. Not all of the food served at the Nowra Restaurant was prepared on site. I am satisfied that a significant proportion of the food served at the Nowra Restaurant was pre-cooked food that was delivered to the Nowra Restaurant by Mr Usha and Ms Kumar each Monday after being prepared at the Wollongong Restaurant. This pre-cooked food was then reheated and finished with any garnishes before being served to customers at the Nowra Restaurant.

30. The majority of transactions at the Nowra Restaurant were processed by EFTPOS but some patrons paid in cash. The EFTPOS records for the Nowra Restaurant record that 88% of its business occurred between 11.30 am and 3.30 pm and 5.00 pm and 9.30 pm.

31. On 23 May 2018, Ms Elizabeth Csanitz, an Environmental Health Officer from Shoalhaven City Council, conducted a routine primary inspection of the Nowra Restaurant. The inspection was conducted on site between 1.13 pm and 2.30 pm. Mr Basi and Mr Usha were present during the inspection, but not Mr Haider.

32. Mr Csantiz stated in her report of the inspection that “Chef” (presumably a reference to Mr Basi) “did not appear to have the required knowledge to handle and prepare food safely”; and the “[c]hicken tikka was found being re-heated in the microwave … Chicken is delivered frozen, thawed, cooked, cooled and reheated and was to then be transported & reheated before service again … Delivering/catering of cooked foods was discussed at length with the Owner” (presumably a reference to Mr Usha).

    Financial position of Namitha Nakul

33. The 2017/2018 financial statements of Namitha Nakul (Financial Statements) record that the company had a trading income of $193,164 for the year ended 30 June 2017 (FY 2017) and $213,632 for the year ended 30 June 2018 (FY 2018) with a gross profit from trading after deducting costs of sales of $125,985 for FY 2017 and $141,483 for FY 2018.

34. After deducting expenses, including salaries, the Financial Statements record that Namitha Nakul incurred a loss from ordinary activities of ($50,086) for FY 2017 and ($97,055) for FY 2018.

    OVERVIEW OF LEGISLATIVE AND INDUSTRIAL SCHEME

    Modern Award Compliance – s 45

35. Pursuant to Part 2-1 of the FW Act, the terms and conditions of employment of “national system employees” are prescribed by the following:

    (a)the NES, set out at Part 2-2 of the FW Act;

    (b)modern awards; and

    (c)enterprise agreements.

36. The NES is comprised of a number of fundamental minimum standards as to maximum weekly hours of work, parental leave, personal leave, annual leave and other entitlements. Section 44 of the FW Act prohibits contraventions of the NES. A contravention of the NES attracts a civil penalty.

37. Modern awards may not derogate from entitlements established by the NES: ss 55 and 56 of the FW Act.

38. Section 45 of the FW Act obliges employers not to contravene terms of any modern award applicable to them in respect of their industry:

    45 Contravening a modern award

    A person must not contravene a term of a modern award.

    Note 1: This section is a civil remedy provision (see Part 4-1).

    Note 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).

39. An employer may only contravene an Award that applies to them: s 46(1) of the FW Act. An Award applies to an employer if it is expressed to cover the employer (s 47(1)(a)), and where there is no other provision that has the effect that the Award does not apply (s 47(1)(c)).

    The Restaurant Industry Award 2010

40. The relevant provisions of the Award were not in dispute.

41. Clause 4.1 of the Award states that:

    4.1 This industry award covers employers throughout Australia in the restaurant industry and their employees in the classifications listed in Schedule B—Classification Structure and Definitions to the exclusion of any other modern award.

42. The Award’s application to particular employees is therefore conditioned upon:

    (a)the employer being in the “restaurant industry” as defined; and

    (b)the employee being employed in one of the classifications (or work roles) listed in Schedule B to the Award.

43. “Restaurant industry” is defined in cl 3 as:

    restaurant industry means restaurants, reception centres, night clubs, cafés and roadhouses, and includes any tea room, café, and catering by a restaurant business but does not include a restaurant operated in or in connection with premises owned or operated by employers covered by any of the following awards:

    (a) Hospitality Industry (General) Award 2010;

    (b) Registered and Licensed Clubs Award 2010; or

    (c) Fast Food Industry Award 2010

44. The classifications listed in the Award include kitchen attendants and cooks, who are in the B3 Kitchen stream in Schedule B of the Award.

45. There are eight classifications in the Kitchen stream, described as follows:

    B.3.1 Kitchen attendant grade 1 means an employee engaged in any of the following:

    (a) general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant;

    (b) assisting employees who are cooking;

    (c) assembly and preparation of ingredients for cooking; and

    (d) general pantry duties.

    B3.2 Kitchen attendant grade 2 means an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area, or supervision of kitchen attendants.

    B.3.3 Kitchen attendant grade 3 means an employee who has the appropriate level of training including a supervisory course, and has the responsibility for the supervision, training and co-ordination of kitchen attendants of a lower grade.

    B.3.4 Cook grade 1 means an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking or butchering.

    B.3.5 Cook grade 2 means an employee who has the appropriate level of training and who performs cooking duties such as baking, pastry cooking or butchering.

    B.3.6 Cook grade 3 (tradesperson) means a commi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training, and who is engaged in cooking, baking, pastry cooking or butchering duties.

    B.3.7 Cook grade 4 (tradesperson) means a demi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties and/or supervises and trains other cooks and kitchen employees.

    B.3.8 Cook grade 5 (tradesperson) means a chef de partie or equivalent who has completed an apprenticeship or has passed the appropriate trade test or who has the appropriate level of training in cooking, butchering or pastry cooking and who performs any of the following:

    (a) general and specialised duties including supervision or training of other kitchen staff;

    (b) ordering and stock control; and

    (c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment.

46. The respective classification grades in the various streams have a corresponding minimum wage rate level in clause 20 of the Award, with the lowest minimum wage level and rates applicable to the entry level role and the highest minimum wage rates and levels applicable to the supervisory and skilled trades roles. The rates in clause 20 are broken down into minimum weekly and hourly rates.

47. Clause 20 of the Award provides that an adult employee within a specified level will be paid not less than the rate per week assigned to the classification, as defined in Schedule B, for the area in which such employee is working:

Classification	Minimum weekly wage $	Minimum hourly wage $
Kitchen attendant grade 1	692.10	18.21
Kitchen attendant grade 2	718.60	18.91
Kitchen attendant grade 3	743.30	19.56
Cook grade 1	718.60	18.91
Cook grade 2	743.30	19.56
Cook grade 3 (tradesperson)	783.30	20.61
Cook grade 4 (tradesperson)	832.30	21.90
Cook grade 5 (tradesperson)	854.60	22.49

1. The Award regulates the hours of work of employees, and the arrangement of the ordinary hours of work (regardless of classification grade). It relevantly provides:

   31. Hours of work

   31.1 The hours of work of a full-time employee are an average of 38 per week over a period of no more than four weeks.

   31.2 The arrangement of ordinary hours must meet the following conditions:

   (a) a minimum of six hours and a maximum of 11 and a half hours may be worked on any one day. The daily minimum and maximum hours are exclusive of meal break intervals;

   (b) an employee cannot be rostered to work for more than 10 hours per day on more than three consecutive days without a break of at least 48 hours;

   (c) no more than eight days of more than 10 hours may be worked in a four week period;

   (d) an employee must be given a minimum break of 10 hours between the finish of ordinary hours of work on one day and the commencement of ordinary hours of work on the next day. In the case of a changeover of rosters the minimum break must be eight hours;

   (e) an employee must be given a minimum of eight full days off per four week period; …

2. The term “ordinary hours” is not defined in the Award, but is defined in the FW Act at s 20 in relation to award/agreement free employees. The concept of ordinary hours was discussed by Allsop CJ in Bluescope Steel (AIS) Pty Ltd and Another v Australian Workers’ Union (2019) 270 FCR 359; [2019] FCAFC 84 at [38] (Bluescope Steel) as follows:

   … the word “ordinary” and the phrase “ordinary hours” have assumed different meanings depending on context and circumstance. There are circumstances and contexts where the word and phrase can be seen to refer to regular, normal, customary or usual hours; and there are circumstances or contexts where the word and phrase can be seen to refer to the hours of work referred to in applicable industrial instruments as standard hours to be paid at ordinary rates, as opposed to additional hours (even if required, usual, regular, normal or customary) and paid at a special or higher rate. As such, the word and phrase can be seen to reflect the long-recognised distinction between ordinary hours of work and overtime: cf Thompson v Roche Bros Pty Ltd [2004] WASCA 110 at [31].

3. The Award (at the relevant times) established an entitlement to breaks in the terms set out below:

   32. Breaks

   32.1 If an employee, including a casual employee, is required to work for five or more hours in a day the employee must be given an unpaid meal break of no less than 30 minutes. The break must be given no earlier than one hour after starting work and no later than six hours after starting work.

   32.2. If the unpaid meal break is rostered to be taken after five hours of starting work, the employee must be given an additional 20 minute paid meal break. The employer must allow the employee to take this additional meal break no earlier than two hours after starting work and no later than five hours after starting work.

   32.3 If an employee is not given the unpaid meal break at the time the employer has told the employee it will be given, the employer must pay the employee 150% of the employee’s ordinary base rate of pay from the time the meal break was to commence until either the meal break is given or the shift ends.

   32.4 If clause 32.3 does not apply and an employee is not given a meal break in accordance with clause 32.1 the employer must pay the employee 150% of the employee’s ordinary base rate of pay from the end of six hours until either the meal break is given or the shift ends.

   32.5 If an employee is required to work more than five hours after the employee is given the unpaid meal break, the employee must be given an additional 20 minute paid break.

   32.6 If a full-time or regular part-time employee is required to work more than 10 ordinary hours in the day, the employee will be given two additional 20 minute paid breaks. In rostering for these breaks, the employer must make all reasonable efforts to ensure an even mix of work time and breaks.

1. The Award provisions in respect of hours and breaks are coupled with provisions for the payment of penalty rates for additional hours of work or work at unsociable times as follows:

   33. Overtime

   33.1 Requirement to pay overtime rates

   (a) Full-time and part-time employees are paid at overtime rates for any work done outside of the spread of hours or rostered hours set out in clause 31—Hours of work.

   …

   33.2 Overtime rates

   The overtime rate payable to an employee depends on the time at which the overtime is worked.

   (a) Monday to Friday: 150% of the employee’s ordinary base rate of pay for the first two hours of overtime then 200% of the employee’s ordinary base rate of pay for the rest of the overtime.

   (b) Between midnight Friday and midnight Saturday: 175% of the employee’s ordinary base rate of pay for the first two hours of overtime then 200% of the employee’s ordinary base rate of pay for the rest of the overtime.

   (c) Between midnight Saturday and midnight Sunday: 200% of the employee’s ordinary base rate of pay for all time worked.

   …

   34.1 Penalty rates for work on weekends and public holidays

   …

   An employee working ordinary time hours on the following days will be paid the following percentage of the minimum wage in clause 20—Minimum wages for the relevant classification:

Type of employment	Monday to Friday %	Saturday %	Sunday %	Public holidays %
Full-time and part-time	100	125	150	250
Casual Introductory Level, Level 1, Level 2 (inclusive of 25% casual loading)	125	150	150	250
Casual Level 3 to Level 6 (inclusive of 25% casual loading)	125	150	175	250

1. The Award also imposes an obligation on employers to make superannuation contributions in respect of employees:

   30.2 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.

   (b) The employer must make contributions for each employee for such month where the employee earns $350.00 or more in a calendar month.

2. In Bluescope Steel, the Full Court (Allsop CJ, Collier and Rangiah JJ) considered the question of whether provisions in an award and enterprise agreement concerning superannuation could create binding (and therefore contravenable) obligations. The Court considered arguments to the effect that the provisions merely reflected or acknowledged the obligations created in the Commonwealth superannuation legislation but did not independently impose any obligation upon the employer. The Court accepted that argument in respect of the Award provision, but concluded (Allsop CJ at [12], Collier J at [237], Rangiah J agreeing at [356]-[358]), that the enterprise agreement provision stating that the employer will make superannuation contributions created an independently enforceable obligation, which was capable of being contravened.

3. The Award contains an entitlement to receive leave loading of 17.5%:

   35. Annual leave

   …

   a.2Payment for annual leave

   (a) The NES prescribes the basis for payment for annual leave, including payment for untaken leave upon the termination of employment.

   (b) In addition to the payment provided for in the NES, an employer is required to pay an additional leave loading of 17.5% of that payment.

4. The clause expands on the annual leave entitlements established in the NES at Division 6 of Part 2-2 of the FW Act. Section 90 within that Division provides as follows:

   (1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

   (2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

5. The established approach to the construction and application of industrial instruments is contained in the following frequently cited statement by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184:

   It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

   Fair Work Act 2009 (Cth)

   Obligation to pay amounts payable – s 323

6. Section 323 of the FW Act imposes obligations upon employers in respect of the payment of employee entitlements, such as wages. It provides:

   323 Method and frequency of payment

   (1)An employer must pay  an employee amounts payable to the employee in relation to the performance of work:

   (a)in full (except as provided by section 324); and

   (b)in money by one, or a combination, of the methods referred to in subsection (2); and

   (c)at least monthly.

   Note 1:This subsection is a civil remedy provision (see Part 4-1).

   Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:

   (a)incentive-based payments and bonuses;

   (b)loadings;

   (c)monetary allowances;

   (d)overtime or penalty rates;

   (e)leave payments.

   (2)       The methods are as follows:

   (a)cash;

   (b)cheque, money order, postal order or similar order, payable to the employee;

   (c)the use of an electronic funds transfer system to credit an account held by the employee;

   (d)a method authorised under a modern award or an enterprise agreement.

   (3)Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

   Note:    This subsection is a civil remedy provision (see Part 4-1).

7. The section imposes an obligation upon the employer to pay any amount or amounts payable to an employee. Each entitlement, whether as to wages, overtime, or leave loading, will give rise to a separate contravention of s 323 where it is not paid: Stratton Finance Pty Limited v Webb (2014) 314 ALR 166; [2014] FCAFC 110 at [47] (Allsop CJ, Siopsis and Flick JJ).

8. As the High Court (Crennan, Kiefel, Bell, Gageler and Keane JJ) observed in Construction Forestry Mining andEnergy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at [45], the section (and others in the Division) address the same mischief as that addressed by the “Truck Acts” — the prospect that an employer may attempt to satisfy its obligations to pay wages by making payments in kind.

   Unreasonable requirement by employer that employee pay or spend money – s 325

9. From the commencement of the employment of Mr Basi and Mr Haider by Namitha Nakul, until 15 September 2017, s 325 provided:

   325 Unreasonable requirements to spend amount

   (1)An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances.

   Note:    This subsection is a civil remedy provision (see Part 4-1).

   (2)The regulations may prescribe circumstances in which a requirement referred to in subsection (1) is or is not reasonable

10. In Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) (2015) 239 FCR 461; [2015] FCA 1196 (AEU), Bromberg J proceeded on the basis, without deciding, that the reference to “spend” in s 325 was capable of having application to monies deducted from wages or salary, noting that the section refers to amounts “payable” to an employee: see [340]-[341].

11. Since 15 September 2017, s 325 has (relevantly) provided as follows:

    325 Unreasonable requirements to spend or pay amount

    (1)An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee's money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:

    (a)the requirement is unreasonable in the circumstances; and

    (b)for a payment--the payment is directly or indirectly for the benefit of the employer or a party related to the employer.

    Note:    This subsection is a civil remedy provision (see Part 4-1).

    …

    (2)The regulations may prescribe circumstances in which a requirement referred to in subsection (1) or (1A) is or is not reasonable.

12. Justice Bromberg considered the question of unreasonableness in AEU, which involved a deduction by the employer from teachers’ wages for the provision of laptop computers. In that judgment, his Honour said, as to the question of what was “unreasonable”:

    355.The Explanatory Memorandum to the FW Bill provided the following examples of requirements which may be reasonable or unreasonable:

    1292.For example, it is likely to be unreasonable for an employer to require an employee to donate a proportion of his or her pay to a charitable or religious organisation nominated by the employer. It may be reasonable, however, for an employer to require an employee who is a tradesperson to purchase tools required to perform his or her duties (unless the employer is otherwise required to provide those tools).

    356.I agree with the approach taken by both the AEU and DEECD, that “unreasonable in the circumstances” was likely to have been intended to have the same meaning in s 325(1) as in s 326(1)(c)(ii). For the same reasons that I found the deductions were “unreasonable in the circumstances” when determining the s 326(1)(c)(ii) question, I would find that the requirements made by DEECD of the Group 11 teachers to spend parts of the amounts payable to them in relation to their performance of work were “unreasonable in the circumstances”. In summary:

    (i)the spending required occurred in the absence of genuine choice;

    (ii)the rate of spending was set at an excessive rate of contribution;

    (iii)the deductions made were not principally for the benefit of the Group 11 teachers; and

    (iv)the value of the benefits actually received by them did not provide a countervailing justification.

13. The Explanatory Memorandum to the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (which introduced the amendment to s 325) provided examples of circumstances where it would be unreasonable for an employer to receive an employee’s money, including the practice of paying employees the ostensibly lawful rate and then coercing payments back in cash in exchange for not terminating employment or in order to undercut minimum entitlements and compelling an employee to spend their money in a manner which involves undue influence, duress or coercion.

14. In Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 2) [2019] FCA 670 (Cheesecake Shop) at [72], Rares J found that a cash payback arrangement constituted a contravention of s 325.

    Part 3-1 – General Protections

15. Division 3 of Part 3-1 of the FW Act contains provisions which protect the enjoyment or exercise by employees of workplace rights. Pursuant to s 341(1) of the FW Act, a person has a “workplace right” where the person:

    (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; …

16. Section 12 of the FW Act defines:

    (a)“workplace law” to include the FW Act; and

    (b)“workplace instrument” to mean an instrument made under or recognised by a workplace law, which concerns the relationship between employers and employees.

17. Rights contained in the FW Act, or in modern awards made under the FW Act, are “workplace rights” within the meaning of that term in Division 3 of Part 3-1 of the FW Act.

    Obligation to keep records – s 535

18. Section 535 imposes an obligation upon an employer to maintain employee records for seven years. It provides:

    535 Employer obligations in relation to employee records

    (1)An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.

    Note:    This subsection is a civil remedy provision (see Part 4-1).

    (2)       The records must:

    (a)       if a form is prescribed by the regulations–be in that form; and

    (b)       include any information prescribed by the regulations.

    Note: This subsection is a civil remedy provision (see Part 4-1).

    (3)The regulations may provide for the inspection of those records.

    Note: If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.

    (4)An employer must not make or keep a record for the purposes of this section that the employer knows is false or misleading.

    Note:    This subsection is a civil remedy provision (see Part 4-1).

    (5)Subsection (4) does not apply if the record is not false or misleading in a material particular.

19. Subsections (4) and (5) were inserted by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) and commenced on 15 September 2017.

20. Subdivision 1 of Part 3-6 of the Fair Work Regulations 2009 (FW Regulations) prescribes the content of the employee records s 535 requires an employer to make and keep.

21. An employee record must:

    (a)be legible, in English and readily accessible to an inspector (reg 3.31);

    (b)record the employer’s name, the employee’s name, employment status (full-time, part-time, permanent, temporary or casual) and the date of commencement (reg 3.32);

    (c)where a penalty rate or loading is payable in respect of overtime hours worked by an employee, specify the number of overtime hours worked each day and when the employee started and ceased those hours (reg 3.34);

    (d)record any leave taken by the employee and the balance remaining from time to time (reg 3.36); and

    (e)record any superannuation contributions required to be made for the benefit of the employee (reg 3.37).

22. Furthermore, reg 3.33 of the FW Regulations provides:

    3.33 Records—pay

    (1) For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

    (a) the rate of remuneration paid to the employee; and

    (b) the gross and net amounts paid to the employee; and

    (c) any deductions made from the gross amount paid to the employee.

    (2) If the employee is a casual or irregular part‑time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee.

    (3) If the employee is entitled to be paid:

    (a) an incentive‑based payment; or

    (b) a bonus; or

    (c) a loading; or

    (d) a penalty rate; or

    (e) another monetary allowance or separately identifiable entitlement;

    the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.

23. Sub-regulation (2) specifically states that records of hours worked must be kept “if the employee is a casual or irregular part-time employee”. No record of hours is stated to be necessary to be kept for full-time employees.

    Fair Work Act Remedies – Part 4-1

24. Where it is satisfied that a person has contravened a civil remedy provision, the Court may:

    (a)order that person to pay a pecuniary penalty (s 546); and

    (b)make any other order it considers appropriate (s 545(1)), including orders awarding compensation for loss that a person has suffered because of a contravention (s 545(2)(b)).

25. The maximum penalties applicable to contraventions of civil remedy provisions of the FW Act appear at column 4 of the table to s 539(2). For bodies corporate, the maximum penalties are five times the maximum specified in s 539(2): see s 546(2) of the FW Act.

26. A person who is involved in a contravention of a civil remedy provision of the FW Act is taken to have contravened that provision. Subsection 550(2) defines involvement in the following terms:

    (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; or

    (b)has induced the contravention, whether by threats or promises or otherwise; or

    (c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

    (d)has conspired with others to effect the contravention.

27. Since 15 September 2017, the FW Act has also provided for increased penalties for “serious contraventions” that are ten times the penalties for normal contraventions.

    THE APPLICANTS’ EMPLOYMENT

    When did Mr Basi commence employment with Namitha Nakul?

28. The applicants submit that Mr Basi commenced working for Namitha Nakul at the Wollongong Restaurant on or about 19 July 2016.

29. The respondents submit that Mr Basi did not commence working for Namitha Nakul at the Wollongong Restaurant until 16 November 2016.

30. Mr Basi gave evidence that he commenced working at the Wollongong Restaurant on or about 19 July 2016 and received an amount of $600 per week from Mr Usha in cash from that time until he started receiving payments by bank transfer in February 2017.

31. Mr Usha gave evidence that Mr Basi did not commence working at the Wollongong Restaurant until 16 November 2017 after the transfer of Mr Basi’s subclass 457 visa had been approved.

32. I accept the evidence of Mr Basi in preference to that of Mr Usha on this issue. I am satisfied that Mr Basi commenced working for Namitha Nakul at the Wollongong Restaurant on or about 19 July 2016, being the date that he accepted the Basi Employment Offer, for the following reasons.

33. First, Mr Basi’s evidence is corroborated to a significant extent by his bank statements. They show that he was in Wollongong from no later than 25 July 2016, a city with which he had no prior connection, until about May 2017, when he commenced to engage in regular transactions around the Nowra area.

34. Second, Mr Basi’s bank statements also show a pattern of transactions consistent with his account that he worked for the respondents, was paid in cash an amount of $600 per week in the period up to the end of January 2017 and made regular international transfers of money to his parents in India. A summary of those transactions appears below:

Date	Description	Amount
8 Aug 2016	Cash Deposit	$1200
22 Aug 2016	Cash Deposit	$470
29 Aug 2016	Cash Deposit	$500
5 Sep 2016	Cash Deposit	$500
12 Sep 2016	Cash Deposit	$500
15 Sep 2016	Western Union International transfer	$2000
19 Sep 2016	Cash Deposit	$600
26 Sep 2016	Cash Deposit	$500
10 Oct 2016	Cash Deposit	$1100
7 Oct 2017	Western Union International transfer	$1600
17 Oct 2016	Cash Deposit	$450
24 Oct 2016	Cash Deposit	$600
31 Oct 2016	Cash Deposit	$500
7 Nov 2016	Cash Deposit	$500
14 Nov 2016	Cash Deposit	$530
21 Nov 2016	Cash Deposit	$300
28 Nov 2016	Cash Deposit	$500
5 Dec 2016	Cash Deposit	$700
13 Dec 2016	Western Union International transfer	$216.45
19 Dec 2016	Cash Deposit	$1100
20 Dec 2016	Western Union International transfer	$205.49
29 Dec 2016	Cash Deposit	$600
2 Jan 2016	Cash Deposit	$450
	Cash Deposit	$150
11 Jan 2016	Western Union International transfer	$205.83
13 Jan 2016	Cash Deposit	$500
19 Jan 2016	Western Union International transfer	$792.61
25 Jan 2016	Cash Deposit	$1100
1 Feb 2016	Western Union International transfer	$1180.23
	Western Union International transfer	$1959.37
11 Mar 2017	Western Union International transfer	$1000.95

1. On balance, I accept Mr Basi’s evidence concerning the cashback payments. It is consistent with the apparent logic of events and the facts capable of being objectively established, and it provides a plausible explanation for why Mr Basi would be making regular cash payments to Mr Usha. It had the practical effect of maintaining Mr Basi’s wages at approximately $600 per week ($1,200 a fortnight), notwithstanding the fortnightly bank transfers of $1,711.38. Mr Usha did not advance any reason for the payments, other than repayments of the alleged loans, and given the financial position of Namitha Nakul, as reflected in its financial statements, it is readily apparent that Namitha Nakul had limited, if any, ability to meet the obligations in full that it had assumed in the Basi Employment Offer. Moreover, Mr Usha’s evidence on the payments of $510.00 or $511.38 was not supported by any of the other witnesses relied upon by the respondents.

   Did the requirement to make the cashback payment contravene ss 323 and 325 of the FW Act?

2. In Cheesecake Shop, the Court found that “cashback” arrangements constituted contraventions of ss 323 and 325 of the FW Act. In that case the employer unreasonably required the employee to make “cashback” payments in the amount of $700 per fortnight under threat of losing his employment and his employer discontinuing sponsorship of his application for a subclass 457 visa: Cheesecake Shop at [3] (Rares J). The employer required the employee to provide him with login, password and debit card details and transferred the cashback payments to himself before transferring the stipulated wages to the employee: Cheesecake Shop at [17] (Rares J).

3. Mr Basi contends he was entitled to be paid a great deal more than $55,000 per annum given the hours of work he performed, and that a contravention will be established if the Court is satisfied that:

   (a)the requirement for the payments reduced the effective salary to $600 per week; and

   (b)based on its findings as to his classification and the hours of work he performed he would have been entitled to be paid more than that (and for the reasons set out above, he was).

4. The respondents submit that a requirement to repay a loan to Mr Usha was not a contravention of ss 323 or 325 of the FW Act by Namitha Nakul and could not be a contravention by Mr Usha.

5. Mr Basi’s evidence was that he made his first payment on 9 February 2017 (the day after being paid).

6. The respondents submit that Cheesecake Shop is otherwise not analogous to the current circumstances as, in these proceedings Mr Usha had entered into oral loan arrangements with each of Mr Basi and Mr Haider and any payments made to Mr Usha (or others) were paid pursuant to those loan agreements and were not otherwise related to Mr Basi and Mr Haider’s employment. The respondents deny ever requiring Mr Basi to make “cashback” payments. The respondents say that, on occasions when Mr Basi paid more than $500, any additional monies paid were reimbursement for the purchase of food.

7. The respondents accept, however, that if the Court finds the payments were made in response to a “cashback” demand, such payments would contravene s 323 of the FW Act.

8. For the reasons outlined above, I have concluded that the payments made by Mr Basi to Mr Usha were made pursuant to cashback demands and I am thereby satisfied that in those circumstances Namitha Nakul has contravened ss 323 and 325 of the FW Act in the period between 8 February 2017 and July 2018, by requiring Mr Basi to make regular fortnightly payments out of his wages to Namitha Nakul, and Mr Usha contravened ss 323 and 325 of the FW Act by being involved in those contraventions by Namitha Nakul.

   WERE ANY CONTRAVENTIONS “SERIOUS CONTRAVENTIONS”?

9. The applicants contend that the Namitha Nakul Award Contraventions with respect to s 45 of the FW Act and Mr Usha’s involvement in those contraventions were contraventions that constituted “serious contraventions” for the purposes of s 557A of the FW Act.

10. The applicants also contend that the contraventions by Namitha Nakul of s 323 of the FW Act and Mr Usha’s involvement in those contraventions, by reason of the cashback arrangements with Mr Basi and the underpayments of wages to them, were contraventions that constituted “serious contraventions” for the purposes of s 557A of the FW Act.

11. Section 557A(1) of the FW Act provides that a contravention of a civil remedy provision by a person is a serious contravention if the person knowingly contravened the provision and the conduct was part of a systemic pattern of conduct relating to one or more other persons.

12. Section 557A(2) of the FW Act provides that in determining whether the person’s conduct constituting the contravention was part of a systematic pattern of conduct, a court may have regard to: the number of contraventions; the period over which the relevant contraventions occurred; the number of other persons affected; the person’s response; and whether the person also contravened ss 535 (records) and 536 (payslips) of the FW Act. According to s 557A(3) of the FW Act, a Court is not limited to considering only the matters in s 557A(2).

13. Section 557A(5A) of the FW Act provides that a person is involved in a serious contravention of another person (the principal) only if the principal’s contravention was a serious contravention and the involved person knew that the principal’s contravention was a serious contravention.

14. Section 557A has not been the subject of detailed consideration by the Federal Court: see Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848 at [54] (Anderson J); Fair Work Ombudsman v IE Enterprises Pty Ltd & Anor [2019] FCCA 2952 at [5] and [31] (O’Sullivan J); however, see Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848 at [28] (Rares J).

15. The respondents accept that the Court’s determination in relation to this issue (especially the number of contraventions) will be impacted by the findings of fact in relation to the preceding issues, however, in relation to some of the factors raised by s 557A(2) of the FW Act, the respondents make the following submissions:

    (a)Mr Usha sought to engage with Mr Basi’s claim as soon as it was brought to his attention and immediately rectified the underpayment of Mr Basi’s annual leave;

    (b)the respondents admitted to contraventions described above at the earliest opportunity;

    (c)the contraventions occurred over a period of 18 months;

    (d)on the respondents’ case, no overtime hours were worked by Mr Basi or Mr Haider and therefore those records were not required to be kept; and

    (e)Mr Usha was a demonstrably inexperienced operator and relied heavily on the advice and assistance provided by his migration agent and his taxation agent.

16. I accept that the matters raised by the respondents may be relevant to penalty but I am not satisfied that they are of sufficient weight, either individually or collectively, to preclude a finding that the respondents’ contraventions of s 323 of the Act were serious contraventions for the purposes of s 557A(1) of the FW Act.

17. I am satisfied that having regard to the matters identified in s 557A(2) of the FW Act, the respondents knowingly contravened s 323 of the FW Act, being a civil remedy provision of the FW Act, and the conduct of the respondents was part of a systematic pattern of conduct relating to one or more persons, being both Mr Basi and Mr Haider.

18. I have found that there were multiple contraventions concerning the underpayment of both applicants over a period of some two years. Mr Usha denied their complaints repeatedly, sought to have Mr Haider provide backdated timesheets and make a statement containing incorrect representations and made fallacious claims about loans to attempt to cover up and avoid the consequences of the contraventions. Further, the respondents failed to keep records relating to the conduct that gave rise to the contraventions.

19. For these reasons, I am satisfied that Namitha Nakul committed serious contraventions, within the meaning of s 557A of the FW Act, of s 45 of the FW Act by reason of the Namitha Nakul Award Contraventions, and of s 323 of the FW Act by failing to pay to Mr Basi and Mr Haider the wages due and payable to them under the Award, including with respect to Mr Basi by reason of the cashback arrangements, and that Mr Usha committed serious contraventions of s 557A of the FW Act by being involved in those serious contraventions of s 45 and s 323 of the FW Act committed by Namitha Nakul.

    COERCION, UNDUE INFLUENCE AND MISREPRESENTATIONS

    Introduction

20. The applicants contend that Mr Usha made various threats to them to take adverse action against them to coerce them not to insist that they be entitled to retain the wages paid to them, contrary to s 343 of the FW Act, and exerted undue influence or undue pressure to secure their agreement to pay amounts to Mr Usha, contrary to s 344 of the FW Act.

21. The alleged threats were made to Mr Basi in connection with the cashback payments and payments to cover Namitha Nakul’s PAYG tax obligations and to Mr Haider in connection with a payment to cover Namitha Nakul’s costs of its sponsorship of his subclass 457 visa.

22. The applicants also contend that some of the threats made by Mr Usha also constituted misrepresentations for the purposes of s 345 of the FW Act.

    Relevant statutory provisions and principles

23. Section 343 of the FW Act provides:

    343 Coercion

    (1)A person must not organise or take, or threaten to organise or take,  any action against another person with intent to coerce the other person, or a third person, to:

    (a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

    (b)exercise, or propose to exercise, a workplace right in a particular way.

    Note: This subsection is a civil remedy provision (see Part 4-1).

    (2)       Subsection (1) does not apply to protected industrial action.

24. Coercion requires the satisfaction of two elements, first, an intent to negate the exercise of choice, and second, the use of unlawful, or illegitimate or unconscionable means, determined objectively: Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72 (Buchanan J at [174]-[176] and [194], Siopis J agreeing at [1]). Although the matter went on to the High Court and the appeal was successful in part, these parts of the Full Court’s decision were not disturbed.

25. So far as s 343 is directed towards conduct taken for a particular reason, ss 360 and 361 are relevant.

26. First, the prohibited intent need form only a part of the reasons for the conduct. Section 360 of the FW Act provides:

    For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

27. Second, the alleged contravenor bears the burden on the question of the prohibited intent. Section 361 of the FW Act provides:

    (1)      If:

    (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

    (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

    it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

    (2)Subsection (1) does not apply in relation to orders for an interim injunction.

28. Taken together, those two sections operate to mean that a person who is alleged to have contravened s 343 must persuade the Court that an intent to coerce the other person as to their workplace rights was not amongst their reasons for the action.

29. Section 344 provides:

    344 Undue influence or pressure

    An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

    (a)make, or not make, an agreement or arrangement under the National Employment Standards; or

    (b)make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

    (c)agree to, or terminate, an individual flexibility arrangement; or

    (d)accept a guarantee of annual earnings; or

    (e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

    Note 1:           This section is a civil remedy provision (see Part 4-1).

    Note 2:This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)).

30. “Adverse action” includes dismissal (s 342, Item 1(a)) or an alteration of the position of an employee to their prejudice (s 342, Item 1(c)). The term also comprehends threats to take adverse action.

31. Coercion demands a high degree of compulsion negating choice. There is a significant difference in ordinary meaning between concepts such as influence, persuasion, inducement and the like, on the one hand, and coercion, on the other: National Tertiary Education Industry Union v Commonwealth of Australia and Another (2002) 117 FCR 114; [2002] FCA 441 (National Tertiary Education) at [99] and [103] (Weinberg J). It is generally embodied by the threat to take away something possessed or an advantage that would otherwise be obtained: Ellis v Barker (1871) 40 LJ Ch 603 (Romilly MR); National Tertiary Education at [104].

32. In Auimatagi and Another v Australian Building and Construction Commissioner (2018) 267 FCR 268; [2018] FCAFC 191, Allsop CJ, Collier and Rangiah JJ provided examples at [161] of conduct which has been found to be illegitimate, including making threats to put a company out of business.

33. Section 345 provides:

    345 Misrepresentations

    (1)A person must not knowingly or recklessly make a false or misleading representation about:

    (a)the workplace rights of another person; or

    (b)the exercise, or the effect of the exercise, of a workplace right by another person.

    Note:This subsection is a civil remedy provision (see Part 4-1).

    (2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

34. Section 793 of the FW Act is directed at the liability of a body corporate for conduct of officers and employees. It relevantly provides that:

    (1)       Any conduct engaged in on behalf of a body corporate:

    (a) by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or

    (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

    is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

    Cashback arrangements

35. Mr Basi gave evidence that Mr Usha said to him on many occasions words to the effect of:

    (a)“I can shut down the restaurant so that you can lose your job”;

    (b)“You could lose your job at any time if you don’t obey me”; and

    (c)“You would be the loser and I won’t lose anything. I already have Australian citizenship and business and I don’t need you to run the business. All of my family is in Australia.”

36. Mr Usha denies making such threats, giving evidence that:

    Sometimes, I said the – not the story like that. The story is business is not good. If it’s a lot of place, you know, the business is not good that times of day, I worried the workers. But in this case, you know, I can’t worry because the immigration – a lot of things there. So I can’t, you know, worried him. So ..... the stages for, you know, they close the restaurant and, you know, not doing the business sometimes the business is not good; that’s the reasons that I said.

37. Mr Usha gave evidence of disciplinary conversations with Mr Basi. The respondents submit that such disciplinary action was well within Mr Usha’s rights as an employer.

38. The respondents further submit that Mr Usha’s statements were not a threat to put Namitha Nakul out of business and influence a workplace right, but a statement of the reality of an underperforming business which was consistently trading at a loss.

39. The respondents submit that Mr Basi is travelled, well-educated, holds a Master’s in business management, and admitted in cross-examination that not only had he completed a course in human resources management but was also aware of his entitlements including to leave breaks, breaks for meals and annual leave while working for Namitha Nakul.

40. The respondents submit that it must follow that Mr Basi understood:

    (a)his visa was not conditioned upon employment with Namitha Nakul and he was able to transfer his visa, as he had previously done with Chellapas Pty Ltd, to a new sponsor;

    (b)his visa could not be cancelled by Namitha Nakul;

    (c)he should keep a diary of days and hours worked;

    (d)he had minimum workplace entitlements; and

    (e)he had protections at work and was entitled to ask the Fair Work Ombudsman about his pay and conditions.

41. The respondents’ submissions fail to grapple with the vulnerable status of Mr Basi. He had lost his original sponsorship for his subclass 457 visa in Western Australia and was now dependent on Mr Usha, and given his current visa status he would not be able to obtain alternative employment unless an employer was prepared to sponsor his visa. Further, given the terms of the Basi Employment Offer and the prospect of an improvement in the financial position of Namitha Nakul by reason of the opening of the Nowra Restaurant, it is plausible that Mr Basi might not have sought to pursue his workplace rights for some time. Of course, this deferral was finite and Mr Basi subsequently did indeed seek to pursue his workplace rights, as demonstrated by the letters of demand written on his behalf by the South Coast Labour Council and the commencement of these proceedings. It is important not to allow hindsight bias to influence unduly an assessment of the plausibility of a particular state of affairs, in particular in the context of an alleged failure to pursue legal rights at an earlier time.

42. Moreover the content of the alleged “disciplinary conversation” is telling. In the course of those conversations Mr Usha gives evidence that he stated to Mr Basi:

    (a)on at least two occasions in April 2017 that:

    Midhun, I am going to close the Nowra shop because of your attitude. There is not much business. And too much food is being wasted.

    (b)in the course of a telephone call in July 2017 in which Mr Basi admitted that he had deliberately wasted food in the Nowra Restaurant because he was angry with Mr Usha:

    Next time, if you do like that, I will give notice to the immigration agent to cancel the 457 sponsorship. You would need to find a new employer/sponsor.

43. The attempt to explain away admissions that statements were made by Mr Usha to the effect that he would close the Nowra Restaurant and that he would give notice to an immigration agent to cancel Mr Basi’s “457 sponsorship” as “disciplinary conversations” is not persuasive in the absence of any independent corroboration of Mr Usha’s characterisation of the context in which they were made. Further, even if statements to this effect were made strictly in the course of “disciplinary conversations”, this does not preclude and rather supports Mr Basi’s evidence that they were made from time to time in the course of his employment and would have been very much at the forefront of Mr Basi’s mind when faced with the ongoing cashback requirements from Mr Usha. In any event, the issuing of “disciplinary warnings” in the nature of an “adverse performance assessment” may constitute adverse action for the purposes of s 340(1) of the FW Act, as it has the effect of altering the employee’s positon to his or her prejudice: see Sabapathy v Jetstar Airways and Others (2021) 283 FCR 348; [2021] FCAFC 25 at [54]-[63] (Logan and Katzmann JJ) citing, at [63], the following statement of principle in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531 at [95] (Branson J):

    Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment. In a sense, written warnings under the respondent’s disciplinary procedures may be regarded as analogous to the receipt of driving demerit points. It seems to me that few holders of driving licences would doubt that the advantage enjoyed by them in holding driving licences is adversely affected by the accumulation of demerit points close to, but less than, the number required to trigger cancellation of their licences.

1. I am satisfied that statements were made by Mr Usha to Mr Basi that he would “lose his job” or “lose everything”, and that they were threats of dismissal, or threats to alter his position to his prejudice and were designed to make Mr Basi compliant with the work arrangements Mr Usha had instituted, which involved him foregoing his “workplace rights”, namely his award entitlements, contrary to s 343 of the FW Act. I am not persuaded that the respondents have established that an intent to coerce Mr Basi not to exercise his workplace rights was not amongst the reasons for the threats made by Mr Usha to Mr Basi.

2. I am also satisfied that the statements also involved the application of undue influence or undue pressure on Mr Basi for him to accept Mr Usha effectively deducting monies from his salary, contrary to s 344 of the FW Act. In context, the pressure that was applied by Mr Usha was excessive and disproportionate. The statements about Mr Basi losing his job are exacerbated by Mr Usha’s statements comparing his own migration status with Mr Basi’s. Mr Usha, having had a student visa and then a subclass 457 visa, would be acutely aware of the implications of loss of a sponsored position.

3. For these reasons, I am satisfied that Namitha Nakul contravened ss 343 and 344 of the FW Act by requiring Mr Basi to make payments out of his wages to Namitha Nakul and that Mr Usha contravened ss 343 and 344 of the FW Act by being involved in the contraventions of ss 343 and 344 committed by Namitha Nakul.

   August 2017 Basi Payment

4. On or about 7 August 2017, Mr Basi made a cash payment of $4,200 to Mr Usha (August 2017 Basi Payment).

5. The applicants submit the payment was made by Mr Basi in response to a demand from Mr Usha that Mr Basi cover the PAYG liability of Namitha Nakul for Mr Basi.

6. The respondents deny ever requiring Mr Basi to Mr Usha to defray any PAYG tax payable on Mr Basi’s wages.

7. Mr Usha gives evidence that the August 2017 Basi Payment was a partial repayment of the loan from Mr Usha’s brother, Harisankar, and subsequent instalment payments of $500 per fortnight made thereafter were in satisfaction of the balance.

8. Mr Basi gave evidence that in or about May 2017, Mr Usha said to him:

   You have to pay me [an amount which was about six thousand dollars] when you come back from your holidays to pay me back because I have to pay your tax.

9. Mr Basi gave evidence that on or about 24 July 2017, after he had returned from holidays in India, that he asked Mr Usha to pay his wages of approximately $1,711 that had been due, but had not been paid, on 27 June 2017 but was told by him:

   I paid it towards the tax bill. You still have to pay me the rest of that bill.

10. Mr Basi also gave evidence that at the time he paid the amount of approximately $4,200 in cash to Mr Usha on or about 7 August 2017, Mr Usha said to him:

    If you don’t pay, it could affect your permanent residency.

11. I accept this evidence of Mr Basi concerning the circumstances in which he made the August 2017 Basi Payment to Mr Usha.

12. As explained above, I do not accept that Harisankar advanced any money to Mr Basi and therefore the August 2017 Basi Payment could not have been a partial repayment of that loan. In the absence of any other explanation from Mr Usha and the poor financial position of Namitha Nakul, I accept Mr Basi’s evidence that Mr Usha demanded the payment from Mr Basi to pay for Namitha Nakul’s PAYG tax liabilities.

13. It is improbable that Mr Basi would have willingly paid money back to his employer to meet his employer’s tax obligations in the absence of some form of threat of adverse action. The Basi payslips made plain that he was being paid fortnightly after tax wages referrable to the stipulated salary of $55,000 in the Basi Employment Offer. It is implausible, given Mr Basi’s proficiency in English and his tertiary education qualifications, that he did not understand that tax had already been deducted and retained by Namitha Nakul before he was paid his fortnightly wages during this period by bank transfer.

14. The threat made by Mr Usha at the time of making the demand for the payment to meet Namitha Nakul’s tax obligations constituted a threat to take adverse action, namely action that could affect his permanent residency in this country and thus alter Mr Basi’s position to his prejudice.

15. In context, I am satisfied that it was a threat that was made to ensure that Mr Basi complied with the demand for payment. The demand for payment was a demand that Mr Basi not exercise his workplace rights by retaining the wages paid to him, or insisting on his entitlement to those wages. The action was thus in contravention of s 343 of the FW Act. I am not persuaded that the respondents have established that an intent to coerce Mr Basi not to exercise his workplace rights was not amongst the reasons for the threats made by Mr Usha to Mr Basi.

16. The representation that Mr Basi was required to pay the PAYG tax on his salary was a misrepresentation about his workplace rights. In effect, it was a misrepresentation that he was not entitled to retain all of the wages paid to him because he was under an obligation to return a proportion of them to his employer, when demanded, to meet the tax obligations of his employer. There is no such obligation. I am satisfied that it was a false and misleading representation with respect to Mr Basi’s workplace rights contrary to s 345 of the FW Act

17. For these reasons, I am satisfied that Mr Usha contravened ss 343 and 345 of the FW Act by demanding between May and August 2017 that Mr Basi pay Namitha Nakul the sum of approximately $6,000 to defray its PAYG tax liability in respect of Mr Basi (First Usha PAYG Demand Contraventions).

18. I am also satisfied that by reason of s 793(1) of the FW Act, Namitha Nakul also contravened ss 343 and 345 of the FW Act because of the First Usha PAYG Demand Contraventions.

    January 2018 Basi Payment

19. The applicants contend that Mr Basi made a payment of $1,710 in cash to Mr Usha in January 2018 (January 2018 Basi Payment). I note that in their submissions the parties referred to this alleged payment as the “December 2017 Basi Payment”.

20. The applicants submit that the January 2018 Basi Payment was made in response to a demand from Mr Usha for a payment from Mr Basi to defray PAYG tax payable on his salary in contravention of ss 325, 343 and 345 of the FW Act.

21. Mr Basi gave evidence that Mr Usha made a demand on Monday, 27 November 2017 for a contribution towards Mr Basi’s PAYG tax liability. He states that at the time the demand was made Mr Usha told him:

    You better do something or else, it will be problem. You think about it.

22. Mr Usha gave the following evidence when he was confronted with this this alleged demand in the course of his  cross-examination:

    And at the end of November he made a call to you and you said you had received a letter about paying the tax, and he had to give you the tax money. That’s right, isn’t it?---No, no, that’s not right. That situation – the story is different. They changed the story. You know, one time, you know, I ask, you know, “Where is the repayment?”, and he said a lot of the excuse. I said, you know, “I take the money from the company. I have to put it back to the company. You know, the company have to – you know, the – a lot of things to do. Pay the bills and the tax and, you know, a lot of things to do. So, you know, give that money when you can give that money”. That’s the things I ask. The story totally different.

23. Mr Basi states that he withdrew $1,710 from his bank account on 31 January 2018 and gave it to Mr Sulatha for him to pass on to Mr Usha to pay Namitha Nakul’s PAYG tax liability.

24. Mr Usha denies receiving any money from Mr Basi as a payment towards Namitha Nakul’s PAYG liability. Mr Usha contends any money paid to him by Mr Basi was a repayment of the loans that he had made to Mr Basi.

25. I am satisfied that Mr Usha made the demand that Mr Basi make a contribution towards his PAYG tax liability. As explained above, I do not accept that Mr Usha made any loans to Mr Basi and Mr Usha acknowledged in cross-examination that he had drawn a link in a conversation with Mr Basi between the payment requested and the tax obligations of Namitha Nakul.

26. For the reasons set out above, the representation that Mr Basi was obligated to pay the respondent the PAYG tax on his salary was a misrepresentation about his workplace rights, contrary to s 345 of the FW Act.

27. Given the “You’d better do something or else, it will be a problem” threat, in the context of the earlier threats made by Mr Usha, that demand amounted to a threat to Mr Basi’s employment. The threats made by Mr Usha constituted a threat to take adverse action. The threats by Mr Usha were either of dismissal, or that he would take action to alter Mr Basi’s position to his prejudice.

28. I am satisfied that the threats were made to ensure that Mr Basi complied with the demand for payment. The demand for payment was a demand that Mr Basi not exercise his workplace rights by retaining the wages paid to him, or insisting on his entitlement to those wages. I am satisfied that the demand thereby was made in contravention s 343 of the FW Act. I am not persuaded that the respondents have established that an intent to coerce Mr Basi not to exercise his workplace rights was not amongst the reasons for the demand made by Mr Usha to Mr Basi.

29. I am also satisfied that the demand was an unreasonable requirement by Namitha Nakul, as his employer, that Mr Basi spend money, contrary to s 325 of the FW Act.

30. I note that the respondents accept that if the Court finds there was a payment made by Mr Basi to the respondents in January 2018, and that the payment was for the purposes of contributing to Mr Basi’s PAYG tax obligation, such a payment or requirement to spend money was contrary to s 325 of the FW Act.

31. For these reasons, I am satisfied that Mr Usha contravened ss 325, 343 and 345 of the FW Act by demanding in December 2017 and January 2018 that Mr Basi pay Namitha Nakul the sum of $1,710 to defray its PAYG tax liability in respect of Mr Basi (Second Usha PAYG Demand Contraventions).

32. I am also satisfied that by reason of s 793(1) of the FW Act, Namitha Nakul also contravened ss 325, 343 and 345 of the FW Act because of the Second Usha PAYG Demand Contraventions.

    September 2017 Haider Payment

33. The applicants contend that Mr Haider made a payment of $1,400 to Mr Usha in September 2017 in response to a demand by Mr Usha that Mr Haider make a payment towards the cost of Namitha Nakul’s sponsorship of his subclass 457 visa (September 2017 Haider Payment). They submit that sponsorship of a skilled employee provides a benefit to an employer and a demand that an employee defray the employer’s costs of the nomination is an unreasonable demand, contrary to s 325 of the FW Act.

34. The respondents deny that Mr Haider made the September 2017 Haider Payment to Mr Usha. The respondents accept that if the Court finds there was a payment made by Mr Haider to the respondents in September 2017 and the payment was for the purpose of defraying Namitha Nakul’s sponsorship costs, such a payment or requirement to spend money would be contrary to s 325 of the FW Act.

35. Mr Haider gave evidence that in September 2017, Mr Usha demanded that he pay $1,400 towards the cost of Namitha Nakul making an application for a subclass 457 visa that would be sponsored by Namitha Nakul, and at the time of making the demand Mr Usha told him that unless Mr Haider paid him that amount he would not submit the application. Mr Haider stated that in response to this demand from Mr Usha he gave Mr Usha $1,400 in cash at the Wollongong Restaurant.

36. Mr Usha gave evidence that he did receive payments from Mr Haider in the form of repayments of loans that he had made to him but denied that he ever received any payments from Mr Haider in relation to Namitha Nakul’s “migration expenses”.  

37. I accept Mr Haider’s evidence concerning the September 2017 Haider Payment for the following reasons.

38. First, Mr Haider was challenged on his evidence about the September 2017 Haider Payment. He did not resile from that evidence in the course of his cross-examination. His evidence in the following exchange was given forthrightly and without hesitation:

    I put it to you that Mr Usha never demanded a sum of $1400 from you as payment towards his sponsorship costs?---No. That’s not true. He asked me.

    He asked you and you say you paid it?---Yes. He asked me. I couldn’t have any other option.

    Yes. Now, I say that’s not true. You didn’t pay it and he didn’t ask?---No. He asked and I paid.

    And I say that Mr Usha never threatened to cancel your visa?---No. That’s not true.

39. Second, Mr Usha was cross-examined regarding this issue and acknowledged that Namitha Nakul paid a sponsorship application fee of about $1,400 or $1,500 but maintained that he never required Mr Haider to reimburse him for that fee. The acknowledgment of the payment of an equivalent amount as a sponsorship fee to that claimed to have been paid to him by Mr Haider is significant.

40. Third, I do not accept, as explained above, that Mr Usha made any loans to Mr Haider. Mr Usha advances no other explanation for any payments that he may have received from Mr Haider.

41. Fourth, Mr Haider’s evidence about this matter is consistent with that of Mr Basi about the demands made of him for the cashback payments, and for money to meet Namitha Nakul’s PAYG tax obligations.

42. For these reasons, I am satisfied that Namitha Nakul contravened s 325 of the FW Act by demanding that Mr Haider pay the amount of $1,400 in respect of its sponsorship of Mr Haider’s sub-class 457 visa (Namitha Nakul Sponsorship Contravention).

43. I am also satisfied that Mr Usha was knowingly concerned in the Namitha Nakul Sponsorship Contravention and thereby contravened s 325 of the FW Act.

    DISPOSITION

44. There should be judgment for each of Mr Basi and Mr Haider against the respondents for the full amount of the underpayment under the Award of their wages plus tax.

45. The amount of the judgment for Mr Basi is to be calculated as the difference between, on the one hand, the wages that would have been payable to him on the basis that he was employed full time by Namitha Nakul from Tuesday to Sunday, for 38 hours a week as a Cook Grade 4 at the Wollongong Restaurant from 19 July 2016 to 31 March 2017 and a Cook Grade 5 at the Nowra Restaurant from 1 April 2017 to 27 August 2018 with weekend penalty rates to be paid on the basis that he worked six hours on each of Saturday and Sunday, and on the other hand, the amount he received from Namitha Nakul of $76,417.78 less the cashback payments, the August 2017 Basi Payment and the January 2018 Basi Payment.

46. The amount of the judgment for Mr Haider is to be calculated as the difference between, on the one hand, the wages that would have been payable to him on the basis that he was employed full time by Namitha Nakul from Tuesday to Sunday, for 38 hours a week as a Cook Grade 4 at the Restaurants from 31 October 2016 to 14 August 2018 with weekend penalty rates to be paid on the basis that he worked six hours on each of Saturday and Sunday, and on the other hand, the amount he received from Namitha Nakul of $29,980 less the September 2017 Haider Payment of $1,400.

47. In addition, there should be judgment for Mr Haider on a quantum meruit basis for the wages that would have been payable to him on the basis that he was employed by Namitha Nakul for 30 hours per week at the National Minimum Wage in the period between 10 July 2016 and 30 October 2016.

48. The parties will need to bring in calculations of the specific sums together with interest to enable me to make final orders to give effect to these reasons.

49. I will give the parties an opportunity to lead any further evidence and make submissions on the applicants’ claims for the imposition of pecuniary penalties and on costs in the light of these reasons for judgment.

I certify that the preceding five hundred and one (501) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

Associate:       

Dated:       21 June 2022