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Budathoki v Consult Security Pty Ltd

Budathoki v Consult Security Pty Ltd

Case [2020] FCCA 1872 16 July 2020

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Statutory Construction

Vicarious Liability

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Employment Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BUDATHOKI v CONSULT SECURITY PTY LTD & ORS

[2020] FCCA 1872

Catchwords:
INDUSTRIAL LAW – Application arising from alleged employment – whether applicant was an employee or independent contractor – whether applicant was full-time or casual – employer not paid loadings for shift work, weekend work or public holidays – other infractions of award and Fair Work Act established – all issues against first respondent company established – third respondent fully liable pursuant to section 550 of the Fair Work Act – second respondent liable for the contraventions until she ceased material involvement with the affairs of the first respondent.

Legislation:

Fair Work Act 2009 (Cth), s.550.

Cases cited:

Australian Building and Construction Commissioner v Parker [2017] FCA 564; (2017) 266 IR 340
Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740
Fair Work Ombudsman v Hu (No.2) [2018] FCA 1034

Hollis v Vabu [2001] HCA 44

Ross v Paea Trading as Bombora Café [2020] FCA 766

Applicant:

YADU BUDATHOKI

First Respondent:

CONSULT SECURITY PTY LTD

Second Respondent:

CONNIE PRIVITELLI

Third Respondent:

JEZ PRIVITELLI

File Number:

MLG 2213 of 2019

Judgment of:

Judge Burchardt

Hearing date:

26 June 2020

Date of Last Submission:

26 June 2020

Delivered at:

Dandenong

Delivered on:

16 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Latham

Solicitors for the Applicant:

Fitzroy Legal Service

Counsel for the First Respondent:

No appearance

Solicitors for the First Respondent:

Not applicable

Counsel for the Second Respondent:

Self-represented

Solicitors for the Second Respondent:

Not applicable

Counsel for the Third Respondent:

No appearance

Solicitors for the Third Respondent:

Not applicable

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2213 of 2019

YADU BUDATHOKI

Applicant

And

CONSULT SECURITY PTY LTD

First Respondent

CONNIE PRIVITELLI

Second Respondent

JEZ PRIVITELLI

Third Respondent

REASONS FOR JUDGMENT

Introductory

By an amended statement of claim filed effectively at the commencement of the hearing of the trial, but without opposition from the second respondent, the applicant seeks relief arising out of the period of employment that subsisted between 6 February 2018 and 23 September 2018. The employment is asserted to have been with the first respondent, Consult Security Pty Ltd (“Consult Security”). The applicant says that his employment was bound by the Security Services Industry Award 2010 (“the Award”) and that he should be properly classified as a security officer level 2. He claims numerous breaches of the Award and, as a result of the Fair Work Act 2009 (Cth) (“the Act”), in relation to alleged non-payment of appropriate rates of pay for work on weekends and public holidays, underpayments in respect of his shifts, and irregularity of payment. He also complains of the non-provision of payslips, the failure of the employer to pay superannuation required by the Award and complains of the non-provision to him of a copy of the Award itself. He seeks payment of $23,184.62 under the Award and seeks declarations as to contraventions by all three respondents and the imposition of penalties as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Budathoki v Consult Security Pty Ltd

Details

AGLC: Budathoki v Consult Security Pty Ltd [2020] FCCA 1872
Case: [2020] FCCA 1872
Decision Date: 16 July 2020

CaseChat Overview and Summary

The applicant, Mr Budathoki, brought proceedings against Consult Security Pty Ltd (the first respondent), Ms. S. K. Singh (the second respondent), and Mr. R. K. Singh (the third respondent) concerning alleged employment. The dispute centred on whether Mr Budathoki was an employee or an independent contractor, and if an employee, whether he was full-time or casual. The proceedings also involved claims for unpaid loadings for shift work, weekend work, and public holidays, as well as other alleged contraventions of the applicable award and the *Fair Work Act 2009* (Cth). The matter was heard by Burchardt J in the Federal Court of Australia.

The primary legal issues before the Court were to determine the true nature of the relationship between Mr Budathoki and Consult Security Pty Ltd, specifically whether he was an employee or an independent contractor. Consequential to this, the Court was required to ascertain whether Mr Budathoki was employed on a full-time or casual basis. Furthermore, the Court had to determine if Consult Security Pty Ltd had contravened the relevant award and the *Fair Work Act 2009* (Cth) by failing to pay appropriate loadings for shift, weekend, and public holiday work, and to assess the liability of the respondents for these contraventions.

Burchardt J found that all issues raised against the first respondent, Consult Security Pty Ltd, were established. The Court determined that Mr Budathoki was an employee, and that the company had contravened the award and the *Fair Work Act 2009* (Cth) by failing to pay him the correct entitlements. The third respondent, Mr R. K. Singh, was found to be fully liable pursuant to section 550 of the *Fair Work Act 2009* (Cth). The second respondent, Ms S. K. Singh, was held liable for the contraventions up until the point she ceased her material involvement with the affairs of the first respondent.

Orders