Bonner v Transnational Services Alliance Pty Ltd
[2025] FedCFamC2G 471
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bonner v Transnational Services Alliance Pty Ltd [2025] FedCFamC2G 471
File number(s): LNG 18 of 2024 Judgment of: JUDGE RILEY Date of judgment: 3 April 2025 Catchwords: INDUSTRIAL LAW – review of registrar’s decision to dismiss a small claim – claim for annual leave and $10,000 for flights to Cambodia. Legislation: Fair Work Act 2009 (Cth) s. 62
Hospitality Industry (General) Award 2020 (Cth) cls. 12, 14, sch. A.2.9
Cases cited: Carey v President of the Industrial Court of Queensland [2004] 2 Qd R 359; [2004] QCA 062 Division: Division 2 General Federal Law Number of paragraphs: 132 Dates of hearing: 1 October 2024, 24 January 2025 and 20 March 2025. Place: Melbourne Advocate for the applicant: In person Advocate for the respondent: Mr Kan on behalf of the respondent Solicitor for the respondent: None ORDERS
LNG 18 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAUL BONNER
ApplicantAND: TRANSNATIONAL SERVICES ALLIANCE PTY LTD (ACN 40 607 212 395)
Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1.The respondent pay the applicant $4,669.94 for untaken annual leave.
2.The respondent pay on the applicant’s behalf $513.69 in superannuation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by a registrar to dismiss a small claims application under the Fair Work Act 2009 (“the Act”). As such, I must decide the matter afresh.
The applicant, Mr Bonner, was employed by the respondent (“TSA”) from 4 April 2022 until he resigned with effect from 31 August 2023. The last few weeks of Mr Bonner’s employment were covered by worker’s compensation for a stress related condition. That followed TSA discovering that Mr Bonner had attempted to win a client on his own account even though they were a potential client of TSA.
TSA provides hospitality services, such as catering and accommodation, for remote mining and construction sites. TSA provided such services for a mining company, Group 6 Metals Limited (“G6M”), on King Island. TSA employed Mr Bonner as a manager on King Island. A handful of staff reported to Mr Bonner, including John Lemon, who was the chef, his wife, Kirra Lemon, who worked in the restaurant, in the bar and in administration, and Marie Axmacher, who was the breakfast chef.
I gave leave for TSA to be represented in the proceeding by its sole director, Robert Kan.
Mr Bonner claimed in his small claim filed on 28 February 2024 that:
(a)he was employed by TSA from 28 March 2022 until 28 August 2023 (however, he conceded at the final hearing that he actually started on 4 April 2022 and it became common ground that he concluded on 31 August 2023);
(b)his classification under the applicable award was manager;
(c)TSA breached his entitlements under:
(i)the National Employment Standards (“NES”) to holiday pay, overtime and time off; and
(ii)an enterprise agreement;
(d)TSA owed him $78,764.49 consisting of:
(i)wages of $28,330;
(ii)overtime, penalties and allowances of $28,884;
(iii)annual leave of $13,245; and
(iv)superannuation of $7,805;
(e)the outstanding wages consisted of the difference between $95,000 and $75,000 (although the difference between those figures is actually $20,000 and the underpaid wages were allegedly $28,330);
(a)the outstanding annual leave consisted of five weeks per year for 17 months (which seems to have been calculated approximately as follows: five weeks per year equals 0.416666 weeks of annual leave per month worked; 17 months worked entitled Mr Bonner to 7.0833322 weeks of annual leave; he should have been paid $95,000 per year, or $1,826.923 per week; multiplying that by 7.0833322 equals $12,940.702; Mr Bonner actually claimed $13,245; Mr Bonner later conceded that he was only entitled to four weeks annual leave);
(b)the overtime, penalty rates and allowances were detailed in an attachment (but there was no attachment); and
(c)superannuation was 11% of the total claim of $70,459 (which is actually $7,750.49 rather than the $7,805 he claimed).
TSA denied in its response that:
(a)it had breached the NES, which it accepted applied to Mr Bonner but which it said it met in Mr Bonner’s case;
(b)it had breached an enterprise agreement, because there was no enterprise agreement that applied to Mr Bonner;
(c)there was a workplace determination that applied to Mr Bonner;
(d)it had underpaid Mr Bonner; and
(e)there was any money owing to Mr Bonner.
TSA said further in its response that:
(a)Mr Bonner was not covered by an award, as his role was too senior and he did not fit within a classification covered by the relevant award;
(b)his employment was covered by a contract;
(c)he commenced work with TSA on 4 April 2022 (as Mr Bonner later conceded);
(d)he was entitled to four weeks annual leave each year, as per the NES, (as Mr Bonner later conceded) and he took all annual leave that was owing to him during his period of employment;
(e)he was not entitled to any overtime payments;
(f)he generally worked about 30 hours per week, did not do any overtime and his salary of $75,000 per year was to cover any additional hours he worked; and
(g)TSA paid all required amounts to Mr Bonner, including superannuation, and there were no outstanding amounts in respect of which superannuation should now be paid.
Mr Bonner shifted his position quite a lot during the lead up to the trial and during the trial. Ultimately, he only pressed his claims for annual leave and for $10,000 for airfares to Cambodia.
MATERIAL RELIED ON
Mr Bonner relied on his affidavits of 28 February 2024, 23 May 2024 and 4 November 2024. He did not rely on the affidavit sworn or affirmed by Ian Johnson on 3 January 2025 or the affidavit affirmed by Ernest Blakeman on 21 October 2024.
TSA relied on the affidavits sworn by:
(a)Mr Kan on 16 April 2024, 1 May 2024, 25 November 2024, 18 December 2024 and 17 January 2025;
(b)John Lemon on 16 April 2024;
(c)Kirra Lemon on 16 April 2024; and
(d)Marie Axmacher on 30 April 2024.
Mr Bonner, Mr Kan, Mr Lemon and Ms Lemon were all cross-examined. Ms Axmacher was not required for cross-examination.
CREDIBILITY
Mr Bonner did not present as a witness of truth.
For example, he initially claimed that his timesheets accurately stated his hours of work. However, when shown flight records, which showed that he was on aeroplanes when he claimed to be working, he conceded that his timesheets were largely fabricated. He said that Mr Kan had instructed him to put anything in his timesheets, on the basis that he was paid a flat salary regardless of the hours that he worked. Mr Kan denied giving any such instruction.
I accept Mr Kan’s denial on this issue. It seems to me that Mr Kan might have said that Mr Bonner would be paid a flat rate regardless of the hours he worked, but that did not mean that Mr Bonner was authorised to fabricate his timesheets. An employer may well wish to know the hours an employee was working, even if it did not alter the amount of his pay.
Additionally, during cross-examination on 24 January 2025, Mr Bonner was shown GPS data showing the whereabouts of the company car he drove. When the GPS data showed something that did not suit his case, Mr Bonner said that he had his own car that he sometimes used. Mr Kan disputed that Mr Bonner had that car at the relevant time but Mr Bonner insisted that he did. Mr Bonner was asked to produce at the resumed hearing a contract of sale for the car, a receipt for the purchase price and the transfer papers for the registration.
At the resumed hearing, Mr Bonner did not produce any of the documents requested. He conceded that he did not have the car at the relevant time. He had simply made up the claim that he had a car at the relevant time, because he could not otherwise reconcile the GPS data with his claims.
Also at the resumed hearing, Mr Bonner was shown an email from Mr Kan which instructed him to complete leave forms for any time off. Mr Bonner said the email shown to him was a forgery. When he was told that was a very serious allegation to make, he withdrew it, and said that he had not received the email. When it was pointed out to him that the email was correctly addressed, he claimed he did not receive it. He later said that he did not see it. Not seeing an email is a far cry from the email being forged. Again, Mr Bonner had just made up a claim, which he had to resile from when pressed.
There were various other matters discussed below where Mr Bonner was forced to resile from his evidence. All in all, Mr Bonner presented as a man who would say anything that seemed to be smart to get him out of difficulty under cross-examination. I do not consider him to be a credible witness.
There was nothing to similarly impeach the credibility of the other witnesses in the case.
WAS MR BONNER COVERED BY AN AWARD?
For most of the proceeding, the parties were in agreement that, if any award applied, it was the Hospitality Industry (General) Award 2020. TSA accepted that that award applied to it as an employer. However, TSA said that Mr Bonner did not fit within any classification in that award.
Briefly, during the second day of the trial on 24 January 2025, Mr Bonner asserted that he was covered by the Registered and Licensed Clubs Award 2020. However, when certain issues with the application of that award were pointed out, Mr Bonner withdrew that claim.
Mr Bonner was not entirely consistent on the issue but he conceded at a directions hearing on 10 December 2024 and on the third day of the trial on 20 March 2025 that the Hospitality Industry (General) Award 2020 (“the Award”) did not apply to him. That concession was well made for the following reasons.
Clause 14 of the Award specified that classifications were as specified in Schedule A. The classification that seems to fit most closely with Mr Bonner’s position was schedule A.2.9. It provided that:
Managerial staff (Hotels)
For the purpose of this classification:
hotels means hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other associated services.
hotel manager means an employee (however designated) who:
•under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and
•directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and
•implements policies, procedures and operating systems for the hotel;
but excludes an employee who is employed to undertake the duties of senior management or is responsible for a significant area of the operations of one or more hotels. Indicative position titles for such an employee include:
•company secretary;
•chief accountant;
•personnel or human resources manager;
•financial controller;
•industrial relations manager;
•venue manager;
•general/hotel manager;
•executive assistant manager;
•regional manager; or
•a manager to whom any of those positions report or are responsible.
An employee appointed as a Manager must have completed an appropriate level of training in business management or have relevant industry experience, including in supervising employees in one or more areas of a hotel.
NOTE: In a General Hotel, this classification is commonly known as an assistant manager. In an Accommodation Hotel, this classification may include any of the following positions: duty manager; assistant food and beverage manager; assistant rooms division manager; assistant front office manager or equivalent position.
This additional classification does not apply to:
•a hotel manager who is an employee of a proprietary or private company (within the meaning of the Corporations Law) and who holds a sufficient number of shares to entitle them to voting control at general meetings of the company; or
•a hotel manager who is the senior partner of a partnership or who has at least 49% of that partnership; or
•a parent, spouse or de facto partner, son or daughter of a hotel manager excluded from the additional classification by clause A.2.9.
There is some ambiguity about whether “such an employee”, in relation to the indicative position titles, relates to the included or excluded position titles. However, the Fair Work Ombudsman, in a document with the reference number K6000017, indicates that the position titles listed in reference to “such an employee”, depending on the precise duties of the employee, would be excluded from coverage under the Award. That seems to me to be the proper reading of the Award.
Managers in the hospitality industry who are excluded from the Award include a manager:
who is employed to undertake the duties of senior management or is responsible for a significant area of the operations of one or more hotels.
On 20 March 2025, Mr Bonner formally conceded that he was a senior manager, and thus not covered by the Award. However, in my view, Mr Bonner cannot reasonably be described as a senior manager. He had only a handful of staff who reported to him, and his duties mostly involved supervising chefs, cleaners and bar tenders, and sometimes being a chef, cleaner or bar tender himself. The premises were not fine dining. The guests being catered for were miners and construction workers.
On the other hand, Mr Bonner conceded in his Form 5 that his duties also included public relations and “negotiating with principle (sic)”.
In any event, Mr Bonner was paid $75,000 per year, or, on his view, should have been paid $95,000 per year. Either way, that is not the salary of someone who could fairly be described as a senior manager.
Nevertheless, there was an alternative job description that meant that the Award did not apply. The alternative job description applied to Mr Bonner. He was “responsible for a significant area of the operations of one or more hotels”. In fact, he was responsible for the operations of an entire hotel, where the definition of hotel includes:
… taverns … and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other associated services.
That fairly describes the premises of which Mr Bonner was in charge.
It follows that Mr Bonner was not covered by the Award. That means that he was not entitled to overtime rates, penalty rates and allowances as prescribed by the Award.
For completeness, as discussed below, Mr Bonner’s base salary was $75,000 per year. Mr Bonner prepared figures on the basis that the Award did apply to him. He used the rates specified in the Award as it applied from 1 January 2022, although those rates were increased during the period of Mr Bonner’s employment with TSA. The Award states in schedule B the rates for hotel managers. Mr Bonner selected the rate of $25.88 per hours for ordinary hours. If Mr Bonner worked 38 hours per week of ordinary hours (which, under clause 15.1(c)(ii) of the Award can include a day of 11.5 hours), his annual salary, if the Award applied to him, would have been $51,138.88.
Mr Bonner claimed to have worked on some Saturdays and Sundays, for which he would have been entitled to be paid 125% and 150% respectively of the Award rate for ordinary hours, and overtime, if the Award had applied to him. However, his actual hours of work were disputed. Suffice to say that, even if Mr Bonner had been entitled to 50% more than the $51,138.88 that would have been payable to him as ordinary wages if the Award applied to him, the $75,000 that he was paid was in the ballpark.
THE CONTRACT OF EMPLOYMENT
Mr Kan sent Mr Bonner a contract of employment dated 30 March 2022 (exhibit 13). Mr Bonner did not sign it. Mr Kan sent Mr Bonner a number of other contracts of employment in substantially the same terms over the following weeks, but Mr Bonner did not sign them either. Nevertheless, he commenced employment with TSA on 4 April 2022.
It is well established that an employment contract can be formed by conduct, even where an employee has declined to sign the contract the employer proffered. For example, in Carey v President of the Industrial Court of Queensland [2004] 2 Qd R 359; [2004] QCR 062 at [8], the Court of Appeal said:
8.… Formal acceptance of the offer contained in the second respondent’s final letter of a further period of employment on the terms stated in it can readily be inferred from the conduct of the appellant in continuing to work for the second respondent after receiving it and from his receiving and accepting payment as he had done before. See Empirnall Holdings Pty Ltd v. Machon Paull & Partner Pty Ltd (1988) 14 N.S.W.L.R. 523, 527–528 (Kirby P.); 534–535 (McHugh J.A.). If the appellant had wished to escape the inevitable inference that he was assenting to work on the terms of the letters he received including the last, he was, of course, free to do so by stating his own terms to the second respondent in the form of a counter-offer.
9.When, therefore, the appellant received the final letter dated 30 August 2001 containing the extract set out above, his conduct in continuing without dissent to work for the respondent was susceptible of no reasonable inference or interpretation other than that he was agreeing to its terms, which included those referred to above ...
In the present case, Mr Bonner worked for TSA after receiving the contract of employment and accepted payment in accordance with it. There was no evidence or material suggesting that Mr Bonner had made a counter-offer. Similarly to Carey, there is no reasonable inference other than that Mr Bonner agreed to the contract of employment.
THE CAMBODIA AIRFARES
Mr Bonner claimed that he was entitled to a salary of $75,000 plus $10,000 for domestic travel plus $10,000 for travel to Cambodia. Mr Kan said that Mr Bonner was entitled to a salary of $75,000 plus up to $10,000 for travel, which could include travel to Cambodia.
At the resumed hearing on 20 March 2025, Mr Bonner conceded that he was only entitled to up to $10,000 for domestic travel but persisted with his claim for an additional $10,000 for travel to Cambodia. Previously, Mr Bonner had claimed that he was entitled to be paid for the unused portion of the $10,000 for domestic travel plus $10,000 for travel to Cambodia.
Initially, Mr Bonner did not claim to be entitled to $10,000 for domestic travel plus $10,000 for travel to Cambodia. Rather, he claimed to be entitled to a salary of $95,000. However, he eventually abandoned the claim for $95,000 for salary, but persisted with the claim for $10,000 for travel to Cambodia. He claimed at the first day of the trial on 1 October 2024 that his base salary was $75,000 plus:
(a)$10,000 for accommodation and return airfares for himself and his family to go to Cambodia; and
(b)$10,000 for travel within Australia.
This shifting of position casts doubt on the authenticity of the claim. The issues with Mr Bonner’s credibility also cast doubt on the authenticity of the claim.
The contract of employment does not specify $10,000 for travel to Cambodia. Nor does it specify anything for travel. And yet, Mr Kan conceded that he agreed that TSA would pay Mr Bonner up to $10,000 for travel, so the contract is not strong evidence either way.
Mr Bonner’s affidavits do not say anything about the $10,000 for travel to Cambodia. However, in his oral evidence on 20 March 2025, he said the following conversation took place at a meeting in January 2022:
Mr Bonner: Can I get Cambodian airfares as well?
Mr Kan: Yes.
What is not clear from this exchange is what the Cambodian airfares were to be additional to. Was it additional to the base salary or additional to the domestic airfares?
Mr Kan said in his affidavit affirmed on 16 April 2024 that:
9.During late January 2022 or thereabouts the Applicant, John Lemon and Kirra Lemon attended my home to further discuss the potential employment position for the King Island Project (Pre-mobilisation Meeting).
10. During the Pre-mobilisation Meeting, I reiterated to the Applicant that I considered a salary of $98,000 per annum was reasonable given the likely work to be carried out.
11. The Applicant said he would prefer to keep his salary as low as possible so that he could maximise the amount he was receiving in Centrelink benefits.
12. The Applicant asked to be paid $75,000 per annum, plus a travel allowance for airfares of up to $10,000 per annum (including one annual trip to Cambodia), plus accommodation for himself and his family at no expense to him.
13. I agreed to the Applicant’s terms.
Mr Bonner was given accommodation on King Island worth about $18,000 per year, plus domestic travel which, on Mr Kan’s calculation, amounted to about $8,300, and, on Mr Bonner’s calculation, amounted to about $5,480. Due to my concerns about Mr Bonner’s credibility, I prefer Mr Kan’s evidence on this issue. If the accommodation and airfares are taken into account, Mr Bonner received more than $95,000 per year.
Mr and Ms Lemon also attended the meeting in January 2022.
Mr Lemon said in his affidavit affirmed on 16 April 2024 that:
(a)he and Mr Bonner spoke on the phone on the way to the meeting at Mr Kan’s house;
(b)he and Mr Bonner agreed that, to preserve their family tax benefit, they would each ask for:
(i)a base salary of $75,000 per year;
(ii)travel allowance to cover airfares to and from King Island; and
(iii)free accommodation on King Island; and
(c)Mr Kan agreed to that proposal.
In cross-examination, Mr Lemon said that he did not hear any discussion about travel to Cambodia. However, he said that he had to go out to move his car during the course of the meeting. He accepted that the topic might have been discussed in his absence. He said that he and Mr Bonner agreed to the same thing, which was that they would get $10,000 for flights.
Ms Lemon said in her affidavit affirmed on 16 April 2024 that:
(a)Mr Bonner called her husband while they were driving to Mr Kan’s house;
(b)Mr Bonner said that Mr Kan had previously explained that the budgets for various positions included company margins and overheads;
(c)Mr Bonner said that he wanted a salary of $75,000 to maintain his family tax benefit, plus flights including to Cambodia, plus free housing and utilities, relocation assistance and a company vehicle;
(d)at the meeting, Mr Kan said that he was thinking of a base salary of $95,000 for Mr Bonner;
(e)Mr Bonner told Mr Kan that he wanted a salary package as per (c) above; and
(f)Mr Kan agreed to that.
In cross-examination, Ms Lemon said that she did hear Mr Bonner and Mr Kan discussing flights to Cambodia. She said that she understood the discussion was to the effect that the $10,000 for flights included any flights to Cambodia.
I found Mr Kan and Mr and Ms Lemon very credible on this issue.
Mr Bonner submitted that it made no sense that he would have agreed to the same pay arrangements as Mr Lemon, given that he was senior to Mr Lemon. However, that is perhaps at least partially explained by Mr Bonner wishing to maximise his family tax benefits.
In addition, there may have been some miscommunication between Mr Bonner and Mr Kan. Mr Bonner might have intended that the Cambodian flights would be additional to the other flights, but Mr Kan understood they were to be included in the allowance for those flights.
Ultimately, Mr Bonner has not proved that there was any agreement for him to receive both up to $10,000 for domestic flights and $10,000 for the Cambodian flights. The highest his evidence goes is that the cost of flights to Cambodia was to be additional to something but it is unclear what. Was it additional to the base salary or additional to the domestic flights? The ambiguity inherent in Mr Bonner’s evidence on this issue undermines his claim.
It is also significant that Mr Bonner did not raise the issue of Cambodian flights when Mr Kan sent him the contracts of employment. Even if he did not want flights mentioned in the contract, perhaps for family tax benefit reasons, he could have sent Mr Kan an email confirming his understanding of the arrangements. But he did not.
Moreover, Mr Bonner did not say until well into this proceeding that he was owed $10,000 for Cambodian airfares. His claim before the registrar was that he was owed $20,000, being the difference between the $75,000 per year that he was paid and the $95,000 that he claimed Mr Kan had agreed to. He resiled from that claim before the registrar, and said instead that he was owed $10,000 for airfares, but did not claim before the registrar that he was owed an additional $10,000 for Cambodian airfares.
Before me, Mr Bonner said that he had not abandoned before the registrar the claim for the additional $20,000 salary. However, he eventually abandoned that claim on the third day of the trial before me. He said that he abandoned the claim for time reasons, but it seems more likely that he recognised the claim was not viable.
In any event, the late articulation of the claim for the Cambodian airfares, and the repeated flip flopping about what his claims were, is an additional reason for not accepting that Mr Bonner and Mr Kan had agreed that TSA would pay Mr Bonner $10,000 for travel to Cambodia, over and above the $10,000 that was agreed for travel.
I reject Mr Bonner’s claim for the additional $10,000 for airfares to Cambodia.
ANNUAL LEAVE
Mr Bonner initially claimed that he was entitled to five weeks annual leave per year. However, at the directions hearing on 10 December 2024, he conceded that he was only entitled to four weeks annual leave per year.
Mr Bonner said that he did not use any annual leave, as shown in his payslips. TSA said that Mr Bonner took annual leave, but it was not recorded on the system, so it was not reflected in the payslips, because Mr Bonner did not submit leave forms.
TSA said that Mr Bonner left King Island on certain occasions by commercial airlines. TSA said that, on those occasions, Mr Bonner was on annual leave. (There was an additional occasion in December 2022 when Mr Bonner left King Island by medevac because he had to go to hospital in Melbourne following an accident with a horse.) Mr Bonner agreed that he left King Island by commercial airline on certain occasions, but said that, when he did so, he was taking time in lieu of overtime.
Mr Bonner was required by TSA to put in a form when he wished to take leave, whether it was annual leave or time in lieu of overtime. He did not lodge a form for either annual leave or time in lieu of overtime. His payslips showed that he was owed annual leave as if he had not taken any, because he did not put in any applications for leave.
TSA disputed that Mr Bonner was entitled to time in lieu of overtime. TSA said that Mr Bonner did not work any overtime, and generally only worked about 28 hours per week. However, Mr Kan conceded on the third day of the trial that Mr Bonner worked on average 40 hours per week.
Mr Bonner claimed that he sometimes worked more than 70 hours per week, as shown in his timesheets. However, as Mr Bonner conceded, his timesheets were on many occasions fabricated. I cannot accept that they are accurate. Due to my general concerns about Mr Bonner’s credibility, I cannot accept that his oral claims to have sometimes worked more than 70 hours per week are accurate either.
The contract of employment stated that:
Position hours: Hours as required to meet the administration and daily operational needs of the Group 6 Metals Transnational Services Scope of Work as set down for the project and all associated services.
…
Hours of work
As an executive representing the company, your hours will be sufficient to meet the operational requirements of the accommodation facility including public holidays, meal times, check-ins, departure days and during the hours when the village is most active ie: am / pm.
That is, Mr Bonner’s hours of work were as required by the job. Ms Lemon said in cross-examination that Mr Bonner probably worked about 40 to 45 hours per week. Mr Lemon was less sure, but thought Mr Bonner might have worked about 40 per week initially and later 50 hours per week. On the third day of the trial, Mr Kan said Mr Bonner’s ordinary hours were about 40 hours per week, not the 28 hours Mr Kan had said previously. Putting all this together, I consider that Mr Bonner probably worked, on average, 45 hours per week.
Mr Bonner claimed that, under the NES, he could only be required to work a maximum of 38 hours per week. That is not entirely accurate. Subsection 62(1) of the Act provides that:
An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable: (emphasis added)
(a) for a full - time employee--38 hours; …
…
Subsection 62(2) of the Act provides that:
The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
There is no suggestion that Mr Bonner refused to work more than 38 hours per week. On the contrary, he claimed that he willingly worked more than 70 hours per week.
In relation to whether additional hours are reasonable, s.62(3) of the Act provides that:
In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
The parties did not address these provisions. Mr Bonner did not suggest he could not work an average of 45 hours per week for health and safety or family reasons. The workplace had unusual needs. It was in a remote location. There was not ready access to additional staff. It needed Mr Bonner to work some hours in the mornings and some in the evenings. The work would be greater on days when fly-in workers were arriving or departing.
Mr Bonner was not covered by the Award, and his salary was at a level that reflected the need for him to work additional hours. TSA did not specifically ask Mr Bonner to work additional hours. Mr Bonner did not refuse to work additional hours.
The nature of the industry is such that Mr Bonner needed to work the hours that were required to meet the operational needs of the business. Mr Bonner had previously worked for TSA, and knew that the nature of the industry was to work the hours required by the operational needs of the business.
Mr Bonner had a managerial role and a high level of responsibility. The Award did not apply to Mr Bonner, but if it did, the averaging provisions would more or less lead to a salary of about $75,000, as discussed above.
In terms of other relevant matters, in addition to working an average of 45 hours per week, Mr Bonner had time to train his racehorses, coach the football team, have dinner with his family in the tavern, take his children to school, meet a friend for coffee most days, and socialise in the tavern of an evening. The job was largely unskilled. It was not demanding physically, emotionally or intellectually. It was not stressful, except perhaps when TSA discovered that Mr Bonner was wooing on his own behalf a potential client of TSA. It did not have life or death or other major consequences. Also, Mr Lemon explained, “it’s a beautiful place. Everything else was paid for pretty much.” That is, Mr Bonner did not have accommodation or utilities expenses on the island and a lot of his food, and a lot of the food for his family, was provided at the tavern. There seems to have been a very attractive lifestyle for people with the interests that Mr Bonner has.
Taking into account all of these matters, I do not consider that it was unreasonable for Mr Bonner to work on average 45 hours per week. To the extent that Mr Bonner worked more than 38 hours per week, there was not a breach of the NES. Mr Bonner was not entitled to overtime, or time in lieu of overtime.
Mr Bonner worked for TSA from 4 April 2022 until 31 August 2023. He was entitled to four weeks leave for each year of employment. It is difficult to translate that into days, as Mr Bonner did not have a set roster, but had to work as the needs of the business required.
Mr Bonner’s timesheets indicate that there were many weekends that he did not work. Although the timesheets are not reliable, it is safe to conclude that Mr Bonner would not have worked on a day when his timesheets indicated he did not. Of the 60 weeks for which there are timesheets, and for which Mr Bonner did not claim to be on sick leave or during which he was not on workers’ compensation, there are 40 Saturdays or Sundays or both when Mr Bonner did not claim to have worked. Taking 40 days from 420 days (being 60 weeks) leaves 380 days. I consider that to overstate the days Mr Bonner worked, due to his fabrication of timesheets and his general credibility issues. If he worked on average a six day week, he would have worked 360 days during the weeks for which we have timesheets, and when he did not claim to be on sick leave or when he was not on workers’ compensation. That works out, on average, to be a six day working week. That means that, for each week of annual leave, he was entitled to six days of leave.
As such, Mr Bonner was entitled to 33.48 days of annual leave. The commercial flight records indicate that Mr Bonner was on leave for 28 days, if the days of departure and return are counted as leave days. However, Mr Bonner said that he departed late in the day, and returned early in the day, and did some work on his days of departure and return. TSA disputed that, saying that Mr Bonner’s timesheets were a fabrication.
Attachment 9 to Mr Kan’s affidavit affirmed on 25 November 2024 includes various flight records for Mr Bonner which show that:
(a)Mr Bonner departed King Island at 11.50am on 2 July 2022 and returned at 11.05am on 8 July 2022 (seven days);
(b)Mr Bonner departed King Island at 11.50am on 6 August 2022 and returned at 8.40am on 11 August 2022 (six days);
(c)Mr Bonner departed Melbourne for Brisbane at 5.10pm on 11 October 2022 and returned from Brisbane to Melbourne at 9.20am on 19 October (nine days);
(d)Mr Bonner departed King Island at 4pm on 30 March 2023 and returned at 2.55pm on 2 April 2023 (four days); and
(e)Mr Bonner departed King Island at 11.50am on 15 April 2023 and returned at 11.30am on 16 April 2023 (two days).
2 to 8 July 2022
Mr Bonner’s timesheet for 2 July 2022 indicated that he worked from 4am to 9am and 4pm to 11pm, being a total of 12 hours. While it is theoretically possible that Mr Bonner worked from 4am to 9am on 2 July 2022, there is no basis for his claim in the timesheet that he worked from 4pm to 11pm on that day. On that day, he had flown away from King Island at 11.50am and he did not return until 11.05am on 8 July 2022.
When told about the flight records at the final hearing, Mr Bonner conceded that he did not work from 4pm until 11pm on 2 July 2022, and conceded that he did not ever work remotely. He conceded that his timesheet was inaccurate in saying that he worked from 4pm until 11pm on 2 July 2022.
However, he maintained that he had worked from 4am until 9am on 2 July 2022. He said that he was balancing the till and working out the cleaning roster for those five hours. TSA disputed that claim. Mr Kan said that it takes 15 minutes to balance the till, because there is only a float of $200 and there are in addition only the bar takings. Mr Kan also said the cleaning roster is worked out at least a week in advance, so it did not need to be done on the morning of Mr Bonner’s departure from King Island.
In view of Mr Bonner’s concession that his timesheets were often fabricated, and due to my other concerns about his credibility, I do not accept that Mr Bonner worked at all on the morning of 2 July 2022.
Mr Bonner’s timesheet for 3 July 2022 indicated that he did no work on that day. I accept that it is accurate.
Mr Bonner’s timesheets for 4, 5, 6 and 7 July 2022 indicated that he worked from 7am until 12md, a period of five hours, on each of those days. However, at the final hearing, Mr Bonner conceded that he did not work at all on those days, as he was away from King Island, and his timesheets were inaccurate.
Mr Bonner’s timesheet for 8 July 2022 indicated that he worked from 7am until 10.50am, a period of three hours and 50 minutes, and then from 4.50pm until 10pm, a period of five hours and 10 minutes, making a total of nine hours. However, Mr Bonner’s claim to have been working between 7am and 10.50pm on 8 July 2022 cannot be true because the flight records show that he was on a plane returning to King Island between 8.40am and 11.05am on 8 July 2022.
When the flight records were drawn to Mr Bonner’s attention at the final hearing, he admitted that he did not work in the morning of 8 July 2022. He maintained that he did work between 4.50pm and 10pm. Because of the numerous egregious errors in Mr Bonner’s timesheets, and his admission that he sometimes fabricated them, and because of my general concerns with Mr Bonner’s credibility, I do not accept that Mr Bonner worked between 4.50pm and 10pm on 8 July 2022.
The first two days of this period, 2 and 3 July 2022, were a Saturday and a Sunday, and the remaining five days were weekdays. Mr Bonner had to work on weekends if the needs of the business required it. According to his timesheets, he sometimes had Saturday or Sunday or both days off. As discussed above, I consider that Mr Bonner worked an average of six days a week. I think it is reasonable to treat Sunday 3 July 2022 as a day when Mr Bonner was not required to work. Therefore, I consider that Mr Bonner had six days of leave during this period.
6 to 11 August 2022
Mr Bonner’s timesheet for 6 August 2022 indicated that he did not work on that day. I accept that is accurate.
However, Mr Bonner’s timesheets for 7, 8 and 10 August indicated that he worked from 7am until 9am and 12md until 5pm being a total of seven hours on each of those days. However, at the final hearing, Mr Bonner initially said that perhaps he was not on those flights, and they were actually for his children. However, when the passenger details showed that Mr Bonner was on the relevant flights, he suggested that perhaps this was his work trip to Mount Moss. When he was told the trip to Mount Moss was in October 2022, Mr Bonner admitted that his timesheets for 7, 8 and 10 August 2022 were inaccurate. I conclude that he did not work at all on those days, as he was off-site. Mr Bonner was clearly making things up in his evidence on this topic.
Similarly, Mr Bonner’s timesheet for 9 August 2022 indicated that he worked from 4pm until 8.50pm, a total of 4 hours and 50 minutes. However, at the final hearing, Mr Bonner admitted that his timesheet was inaccurate for that day. I conclude that he did not work at all on that day, as he was off-site.
Mr Bonner’s timesheet for 11 August 2022 indicated that he worked from 7am until 9am and 12md until 5pm, a total of seven hours. However, Mr Bonner conceded that he did not work between 7am and 9am on 11 August 2022, after he was told about the flight records showing that he was on a plane returning to King Island between 8.40am and 11.05am on that day.
Mr Bonner maintained that he got off the plane at 11.05am and was at work by 12md. He said he only had carry-on luggage and it was a 40 minute drive from the airport to work. Mr Kan said it was a 20 minute drive. It is theoretically possible that Mr Bonner could have got to work by 12md on 11 August 2022 and remained there until 5pm. However, due to the numerous egregious errors in Mr Bonner’s timesheets, and his admission that they were sometimes fabricated, and the other issues about his credibility, I have no confidence that Mr Bonner did any work at all on 11 August 2022.
The first two days of this period, 6 and 7 August 2022, were weekend days, and the remaining four days were weekdays. As discussed above, I consider that it is reasonable in all the circumstances to treat Sunday 7 August 2022 as a day when Mr Bonner was not required to work. Therefore, I consider that Mr Bonner had five days of leave during this period.
11 to 19 October 2022
Mr Bonner’s timesheets indicate that he worked each weekday from and including Tuesday 11 October 2022 to and including Wednesday 19 October 2022 from 12md until 8pm, being eight hours each day. That is seven working days in total, out of nine days from 11 to 19 October 2022.
On 11 October 2022, Mr Bonner was on a plane from 5.10pm until 6.20pm, flying from Melbourne to Brisbane. He must have taken an earlier flight to travel from King Island to Melbourne. However, the details of that flight were not provided to the court.
In any event, the parties agreed at the final hearing that this trip was a work trip during which Mr Bonner travelled to Mount Moss in Queensland on behalf of TSA to arrange a new contract with a new client. The parties agreed that, of the nine days of the trip, about five days were spent at Mount Moss and two days were spent travelling between King Island and Brisbane.
Mr Kan said that Mr Bonner spent two days visiting his daughter in Brisbane. Mr Bonner seems to have more or less accepted that. However, he maintained that those two days were essentially his weekend off. As on previous occasions, I consider that it is reasonable in all the circumstances to treat one of the two days Mr Bonner spent visiting his daughter as a day when he was not required to work, and the other day as a leave day.
Mr Bonner’s return flight, from Brisbane to Melbourne, was from 5.55am until 9.20am on 19 October 2022. The details of the further flight, from Melbourne to King Island, were not provided to the court. He could not have taken the usual flight he took from Melbourne to King Island, because it departed Melbourne at 8.40am when he was still on the flight from Brisbane. He must have taken a later flight. That undermined Mr Bonner’s claim to have worked from 12md to 8pm on 19 October 2022, as his timesheets claimed. Due to the numerous egregious errors in his timesheets, his admission that they were sometimes fabricated, and my general concerns with his credibility, I have no confidence that Mr Bonner did any work at all at the tavern on 19 October 2022.
Nevertheless, as this was a work trip, I consider that only one day in the period from 11 to 19 October 2022 can properly be treated as leave, being one of the two days Mr Bonner spent with his daughter in Brisbane. The travel time would be work time. 11 October 2022 was a Tuesday and 19 October 2022 was a Wednesday. There was a weekend on 15 and 16 October 2022. Although Mr Bonner probably spent time with his daughter earlier and later than the actual weekend, I consider that it is reasonable to treat one of those two days as “weekend” time.
Therefore, Mr Bonner had one day of leave during this period.
30 March to 2 April 2023
Mr Bonner’s timesheet for 30 March 2023 indicated that he worked from 6.50am until 3pm, a total of eight hours and 10 minutes, although the timesheet said it was eight hours and 50 minutes. Mr Bonner departed King Island on a flight at 4pm on that day. Mr Bonner said that it would have been tight but possible for him to have finished work at 3pm on 30 March 2023 and then arrived at the airport in time to catch a flight at 4pm.
However, by this time, TSA had installed a GPS in the company car TSA had provided to Mr Bonner. TSA produced the GPS data for Mr Bonner’s car. It shows that, on 30 March 2023, the car arrived at the Grassy Club at 6.19am, went to 5a Main Street Currie, which he said was a bakery, to get supplies for the club, then went to the G6M office at 15 Melaleuca Street, and returned to the club at 8.36am. The car left the vicinity of the Grassy Club at 11.13am, arrived at the Currie township at 11.51am, left the Currie township at 12.06pm and arrived at 102 Morrison Avenue Loorana at 12.17pm.
Mr Bonner claimed that 102 Morrison Avenue Loorana is a fruit and vegetable shop where he was obtaining supplies for the Grassy Club. Mr Kan said that the Grassy Club’s fruit and vegetable supplies did not come from a fruit and vegetable shop, but from HelloFresh. Mr Bonner accepted that 99% of the Grassy Club’s fruit and vegetable supplies came from HelloFresh, but claimed that he got about 1% of the Grassy Club’s fruit and vegetable supplies from a fruit and vegetable shop.
However, Google maps shows that 102 Morrison Avenue Loorana is not a fruit and vegetable shop. It is the King Island airport.
Mr Bonner claimed that someone else must have been driving the company car at relevant times. He said that he had his own car and must have swapped from the company car to his own vehicle during the course of the day. However, he then conceded that the car he had at around the commencement of his employment on 4 April 2022 was written off a few months later, well before this trip on 30 March 2023 to 2 April 2023. He then said that he had bought another car for $3,000 cash before 30 April 2023. When asked to produce the purchase contract, he said he would get the transfer of registration papers in time for the resumed hearing date. However, when the matter returned to court, he did not produce the relevant documents. He admitted that he did not have the car during 30 March to 2 April 2023.
Mr Bonner then claimed that the trip from 30 March 2023 to 2 April 2023 was a work trip to pick up a meat slicer in Melbourne. Mr Kan denied that. Mr Bonner did not produce any evidence, such as an invoice for a meat slicer, to substantiate this claim. I do not accept it, largely due to my general concerns about Mr Bonner’s credibility.
It was obvious that Mr Bonner at this point in his evidence was just making things up.
Mr Kan said that Mr Bonner went to Melbourne to meet his daughter. Mr Bonner vehemently denied meeting his daughter in Melbourne, saying, “I never, ever met my daughter in Melbourne.” However, when reminded about his family court orders, Mr Bonner then conceded that he sometimes did handover for his daughter in Melbourne. Again, this impacts on Mr Bonner’s credibility.
The GPS data shows that the company car left the airport at 12.40pm and returned to the vicinity of the Grassy Club, and remained at Ms Lemon’s home at 1 Melaleuca Street, Grassy, overnight. It was driven around over the next two days, when Mr Bonner was not on the island. I conclude that Ms Lemon was driving the car. It seems likely, as Mr Bonner suggested, that someone dropped him at the airport in time for his 4pm flight, in a car other than the company car with the GPS.
I accept that Mr Bonner worked at the Grassy Club until 3pm on 30 March 2023, as claimed in his timesheets. Mr Bonner claimed to have started work that day at 6.50am. I find that plausible. That works out to eight hours and 10 minutes, which is a decent working day. It follows that 30 March 2023 cannot be treated as a day of leave.
Mr Bonner’s timesheets indicated that he did not work on 31 March 2023, a Friday, and 1 April 2023, a Saturday. I accept that the timesheets are accurate for those dates. Mr Bonner should be treated as being on leave on the Friday, and on the Saturday.
Mr Bonner’s timesheet for 2 April 2024 indicated that he worked between 4pm and 8pm, being a total of four hours. The flight records show that his return flight was due to arrive at 2.55pm. In theory, Mr Bonner could have got to work by 4pm. However, the GPS data for 2 April 2023 for the company car do not indicate that the company car travelled from the airport to work that day. The GPS data do not indicate that the company car was at the airport at all on that day. It appears that Mr Bonner must have used some other means of transport to get home from the airport.
The GPS data show that the company car went from 2 Melaleuca Street, which is next door to Ms Lemon’s home at 4.05pm to 12 Blackwood Street Grassy, which is in the vicinity of the Grassy Club, but is also where Mr Bonner’s friend and business partner lives. Then, at 6.47pm, the company car went from that address to Mr Bonner’s home, where it arrived at 6.52pm. The company car remained at Mr Bonner’s home overnight. The GPS data does not support Mr Bonner’s claim that he went to work at all on 2 April 2023.
In any event, 2 April 2022 was a Sunday. I consider that it is reasonable to treat Mr Bonner as not required for work on that day.
Therefore, for the period 30 March 2023 to 2 April 2023, Mr Bonner took two days of annual leave, being the Friday 31 March 2022 and Saturday 1 April 2022.
15 and 16 April 2023
Mr Bonner’s timesheets for 15 and 16 April 2023 do not state any start and finish times but state “salary” in the comments column for each day. However, the flight records show that Mr Bonner was on a flight from 11.50am until 12.45pm on 15 April. He conceded in oral evidence that he could not have worked past 10.30am on the morning of 15 April 2023. The GPS data show that Mr Bonner arrived at work at 5.31am, meaning that he worked about five hours on 15 April 2023. I accept that he worked sufficient hours on that day for it not to be treated as a leave day.
On 16 April 2023, Mr Bonner’s flight departed at 10.35am and landed at 11.30am. He obviously did not work before about 12.30pm on that day, because he was offsite. In theory, Mr Bonner could have worked from 12.30pm onwards on 16 April 2023. However, the GPS data indicates that, on 16 April 2023, the company car (which someone other than Mr Bonner must have driven to the airport):
(a)left the airport at 3.14pm and arrived at 2 Melaleuca Street Grassy at 3.54pm;
(b)left 2 Melaleuca Street Grassy at 3.59pm and arrived at Mr Bonner’s home at 4.05pm;
(c)left Mr Bonner’s home at 4.33pm and arrived at 2 Melaleuca Street Grassy at 4.38pm;
(d)left 2 Melaleuca Street Grassy at 4.49pm and arrived at Mr Bonner’s home at 4.54pm;
(e)left home at 4.59pm and arrived at 2 Melaleuca Street Grassy 5.05pm; and
(f)left 2 Melaleuca Street Grassy at 8.04pm and arrived home at 8.14pm.
Even if it is assumed that when Mr Bonner parked at 2 Melaleuca Street Grassy he was at work, he would only have been working from 3.54pm to 3.59pm, 4.38pm to 4.49pm and 5.05pm to 8.04pm, a maximum of 3 hours and 15 minutes. However, in the absence of any specific entries in the timesheets about his start and finish times, I am not prepared to accept that he was working at those times. I consider it to be more likely that he was socialising or having a meal.
In any event, 16 April 2023 was a Sunday. I consider that it is reasonable to treat 16 April 2023 as a day when Mr Bonner was not required for work. Therefore, it should not be treated as a leave day.
Conclusion on annual leave
All in all, I consider that Mr Bonner took annual leave as follows:
(a)for the period 2 to 8 July 2022: six days;
(b)for the period 6 to 11 August 22: five days;
(c)for the period 11 to 19 October 2022: one day;
(d)for the period 30 March 2023 to 2 April 2023: two days: and
(e)for the period 15 and 16 April 2023: zero days.
That makes a total of 14 days annual leave, when Mr Bonner was entitled to 33.48 days of annual leave. That means that TSA owes Mr Bonner for 19.48 days of leave.
An annual salary of $75,000, with an average six day working week, makes a daily salary of $239.73.
19.48 x $239.73 = $4,669.94. TSA will be required to pay Mr Bonner that amount.
SUPERANNUATION
Mr Bonner claimed 11% superannuation on the amounts he claimed in his fair work claim.
The applicable rates of superannuation during the period of his employment with TSA were:
(a)10%, from 4 April 2022 until 30 June 2022;
(b)10.5%, from 1 July 2022 until 30 June 2023; and
(c)11%, from 1 July 2023 until 28 August 2023.
The 11% rate Mr Bonner claimed was only applicable to the last few weeks of Mr Bonner’s employment. Initially, it seems that Mr Bonner was paid superannuation, pursuant to the unsigned contract, of more than the statutory requirement, being 10.5% rather than 10%.
In any event, Mr Bonner seems to have accepted that he was paid adequate superannuation on the amounts he was actually paid. He only claimed extra superannuation for the amounts that he claimed to be outstanding.
It would be appropriate that TSA pay Mr Bonner superannuation on the unpaid annual leave at the rate prevailing at the time it is paid. That rate is now 11.5%. However, Mr Bonner did not claim that amount, so the superannuation will have to be calculated at 11%. $4,669.94 times 11% equals $513.69.
There will be orders accordingly.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 3 April 2025
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