Chileshe v E and M Business Trust T/A Yellow Brick Road Service Group

[2013] FCCA 10

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILESHE v E & M BUSINESS TRUST T/A YELLOW BRICK ROAD SERVICE GROUP [2013] FCCA 10

Catchwords: INDUSTRIAL — Application under s.539 of Fair Work Act 2009 – alleged breach of s.340 of the Act — onus on employer under s.361.

Legislation:  Fair Work Act 2009 (Cth), ss.340, 341, 361, 539
Occupational Health and Safety Act 2004 (Vic)

Cases Cited:  Cleaning Services Award 2010 [MA000022]

Applicant: RISYAD CHILESHE

Respondent: E & M BUSINESS TRUST T/A YELLOW BRICK ROAD SERVICE GROUP

File Number: MLG 739 of 2012

Judgment of: Judge Whelan

Hearing date: 21 February 2013

Date of Last Submission: 21 February 2013

Delivered at: Melbourne

Delivered on: 12 April 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr Hooper

Solicitors for the Respondent: Kelly Workplace Lawyers

ORDERS

THE COURT DECLARES THAT:

1. The Respondent has contravened s.340 of the Fair Work Act 2009 (Cth) (“the Act”).

THE COURT ORDERS THAT:

1. The Applicant is given 14 days to file and serve submissions in writing in support of the penalty sought (i.e. 26 April 2013).

2. The Respondent is to have a further 14 days to make any submissions in reply (i.e. 10 May 2013).

3. Unless a request is made in writing for an oral hearing, the issue of appropriate penalty will be dealt with on the basis of the written submissions.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT MELBOURNE

MLG 739 of 2012

RISYAD CHILESHE

Applicant

And

E & M BUSINESS TRUST T/A YELLOW BRICK ROAD SERVICE GROUP

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under s.539 of the Fair Work Act 2009 (Cth) (“the Act”) by Mr RISYAD CHILESHE (“the Applicant”) for the imposition of a civil penalty on E & M Business Trust t/as Yellow Brick Road Service Group (“the Respondent”) for breach of s.340 of the Act.

2. The Applicant alleges that his employment was terminated by the Respondent because of his refusal to sign a contract which breached the provisions of the Cleaning Services Award 2010 [MA000022] (“the Award”).

3. The Respondent denies that it terminated the employment of the Applicant and further submits that if it did terminate his employment, a denial of Award terms to the Applicant was not a substantive reason for the termination.

Background

1. The Applicant commenced employment with the Respondent in December 2011. He was employed as a carpet cleaner. Prior to June 2011, the business was owned and operated by Mr EVAN PETRIDIS (“Mr Petridis”). On 1 June 2011 he went into partnership with Mr MAURIZIO MASONI (“Mr Masoni”). Both are equal sole shareholders and directors of the Respondent. The business is a carpet cleaning business servicing both commercial and residential properties. Apart from the directors, there are currently four employees.

2. The Applicant was initially employed for a three-month probationary period. On 8 April 2012, the Applicant was given a document referred to as an employment agreement.[1] He was requested to take the document home and go through it.

   [1] Affidavit of Maurizio Masoni sworn 25 July 2012 at Annexure 1.

3. The Applicant says that he called Mr Petridis that night and expressed his concerns about the contract. He referred to:

   ·the rate of pay with a 50-hour week;

   ·no paid overtime;

   ·the flat $30.00 per hour for Saturdays with no minimum hours; and

   ·mobile phone usage.

   Mr Petridis told him it was a first draft and open to negotiation.

The events of 27 April 2012

1. The Applicant’s evidence was that on 27 April 2012 he was asked by Mr Petridis to discuss the contract after work. Mr Masoni also joined them. He was asked what he did not like about the contract and outlined his concerns. He referred to:

   ·The wage and hours to be worked;

   ·The rate of pay;

   ·No minimum hours for Saturday;

   ·No overtime pay;

   ·The restraint of trade clause;

   ·The phone usage clause; and

   ·The commission structure – “pretty much . . . the whole contract”.[2]

   [2] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 22.

2. The Applicant stated that both Mr Petridis and Mr Masoni tried to assure him that he would rarely have to work overtime. He requested that the wage offer be re-phrased and the restraint of trade removed. He said if he did not have to work 50 hours, why have it in there? Both Mr Petridis and Mr Masoni refused to have any terms amended within the contract and tried to assure him that the contract was legal. They could not understand why he was so unhappy about it.

3. The Applicant stated that he refused to sign the contract and said that it was a sham contract.[3]

   [3] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 29.

4. The Applicant was then asked what he wanted. He referred to the wages being paid to other workers and the worker he had replaced. He proposed that:

   ·He be paid $23.00 per hour;

   ·The minimum hours be removed; and

   ·He be entitled to overtime.

   This was rejected. The Applicant stated that he “did not want to have to be on sales commissions”.[4] Mr Petridis and Mr Masoni explained to him the benefits of the commission structure.

   [4] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraphs 11-12.

5. The Applicant raised the promise that he would be back paid from 12 March 2012 and elaborated on the previous payroll errors which had not been addressed or rectified. He reiterated that he did not want to be on commission but just wanted to get normal pay and the Award conditions for overtime and entitlements. This was rejected. He suggested taking out the restraint of trade clause. This was also rejected.

6. The Applicant stated that at that point, Mr Masoni stated that he was not as good as he thought he was and raised a customer complaint against him.[5] This was discussed. They also discussed the use of the van and the fact that travel time was not paid.

   [5] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 45.

7. At this point, the Applicant says he decided that the meeting was going nowhere and got up from where he was sitting to photocopy the next day’s work schedule. Mr Petridis told him that he could not continue to work for them if he did not sign the contract. The Applicant replied, “You can’t be serious”, to which Mr Masoni replied “We are”.[6]

   [6] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 51.

8. The Applicant then said, “You can’t fire me”. Mr Masoni replied, “We can . . . how many workers do we have?”.[7] The Applicant restated, “So you are firing me?” and Mr Masoni responded, “No”.[8]

   [7] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 52.

   [8] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 53.

9. The Applicant says he then continued to get his work schedule ready. Mr Petridis then said, “Sorry you can’t continue with us. If you won’t sign the work agreement then you’ll need to finish up today”.[9] The Applicant asked again, “Am I being fired?”, to which Mr Masoni responded, “We’re not firing you, you’re leaving of your own accord”.[10]

   [9] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 54.

   [10] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 54.

10. Mr Petridis and Mr Masoni then demanded that the Applicant give them the van keys which he did and went downstairs to the factory. He came back up to say he needed the keys to get his stuff out of the work van. He told them he wanted a letter of termination stating that he was being fired because he would not sign the work agreement.

11. On his way out the Applicant told Mr Petridis to expect a call from Fair Work and also Worksafe. Mr Petridis told him to do that if he wanted but he was within his rights to dismiss him because of the number of employees the Respondent had.[11]

    [11] Affidavit of Risyad Chileshe sworn 3 August 2012 at paragraph 59.

12. The Applicant then called his flat mate, Mr Belcastro, and asked him for a lift home.

13. In cross-examination, the Applicant denied that he was agitated before the meeting but agreed that he became agitated during the meeting. He said that he was not agitated because he thought that Mr Petridis would have amended the agreement. He agreed that amongst other things he mentioned that he was unhappy about was the restraint of trade clause. The Applicant agreed that he was considering setting up his own cleaning business. He denied that Mr Petridis and Mr Masoni indicated that they could not agree to his proposals without further negotiation. He stated, “They simply said, “No we can’t do that”.”[12] He denied that they indicated that they wanted to keep negotiating. They gave him an ultimatum:

    [12] Trancript of proceedings, 21 February 2013, page 16 at lines 14-15.

    . . . after Evan has said, “We have a problem.”  You asked him if you were being terminated, didn’t you?

    ‑‑‑I was being terminated.

    And Evan said to you, “No, we want to continue negotiations” didn’t he?

    ‑‑‑Correct.  Yes.

    Yes.  Evan didn’t say, “You can’t continue to work for us if you don’t sign the contract,” did he?

    ‑‑‑Yes he did.

    Evan didn’t say to you, “If you won’t sign the work agreement you need to finish up today”?

    ‑‑‑Yes he did.[13]

    [13] Transcript of proceedings, 21 February 2013, page 18 at lines 18-29.

14. The Applicant agreed that he tossed the keys of the van on to Mr Masoni’s desk after Mr Masoni requested the keys back.

15. Mr AMOS BELCASTRO (“Mr Belcastro”) is an employee of Melbourne Rug Wash, a subsidiary of the Respondent. As at 27 April 2013 he was sharing a house with the Applicant and he collected the Applicant from work after the meeting that evening.

16. On 15 August 2012 he swore an affidavit in which he stated:

    I first heard of (the Applicant) no longer working at YBR the next week from Evan, (Petridis) who informed me (whilst I was alone) that (the Applicant) no longer worked for YBR as (the Applicant) had refused to sign the contract that had been given to him prior.[14]

    [14] Affidavit sworn by Amos Belcastro on 15 August 2013 at paragraph 4.

17. Mr Belcastro was a most reluctant witness and appeared on summons.

18. In his oral evidence he stated that he could recall picking the Applicant up on 27 April 2012 and that he was in an agitated state. He agreed that the Applicant had told him that he had been fired.

19. Mr Belcastro’s oral evidence appeared to contradict his written statement. When questioned he said, “Evan took me aside privately . . . he basically mentioned to me that yes, you had decided to leave.”.[15] When his written statement was put to him however, Mr Belcastro stated, “Basically you were no longer working for the company. That’s what Evan said.”[16]

    [15] Transcript of proceedings, 21 February 2013, page 25 at lines 5-7.

    [16] Transcript of proceedings, 21 February 2013, page 25 at line 16.

20. In cross–examination he described the Applicant as agitated before the meeting and as upset when he picked him up on 27 April 2012: “He definitely believes he was fired”.[17] He agreed that Mr Petridis may not have used the exact words in his statement. He stated, “Well, my words were basically influenced by the fact that I didn’t want to do this in the start. I just wanted the whole thing to be gone”.[18]

    [17] Transcript of proceedings, 21 February 2013, page 28 at lines 29-30.

    [18] Transcript of proceedings, 21 February 2013, page 29 at lines 32-33.

21. Mr Belcastro is still employed by Melbourne Rug Wash.

22. Mr Petridis’ evidence was that at the meeting on 27 April 2013 he began by asking the Applicant what he thought of the agreement. The Applicant stated that the agreement was a sham and biased against the employee. He asked him about his specific concerns and the Applicant raised the hours of work and the restraint of trade. Both he and Mr Masoni reassured the Applicant that it would be very rare he would be required to work 50 hours per week. He told the Applicant these issues could be discussed.

23. The Applicant said that he did not want to sign a contract. He did not want to be on a commission basis. He just wanted to be on wages and overtime. Mr Petridis stated, “Well, we have a problem”. The Applicant replied, “Are you terminating me?”, to which Mr Petridis responded, “No, we are trying to negotiate”. He then asked again, “Are you terminating me?” to which Mr Petridis again replied, “No, we are trying to negotiate”.[19]

    [19] Affidavit sworn by Evan Petridis on 25 July 2012 at paragraph 25.

24. The Applicant told them he had heard that the company was not good to work for. He said they were a bad group to work for. The Applicant went to the diary to get information about the next day’s schedule.

25. Mr Petridis stated, “And that’s when we said Richard, we’re sitting down having a meeting here. You know, you can’t just get up do what you need to do – do what you want to do”.[20]

    [20] Transcript of proceedings, 21 February 2013 at page 45, lines 40-42.

26. The Applicant then said, “ “Well, I'm not signing the contract.” And he threw his keys down onto the table and proceeded to walk downstairs”.[21]

    [21] Transcript of proceedings, 21 February 2013 at page 45, lines 44-45.

27. The Applicant came back upstairs again and said that he needed the keys to the van to get his equipment out. On his way out he said he would be getting WorkSafe and OH&S on to them.

28. In cross-examination Mr Petridis said that he got the contract from a company in Sydney, that Ms CHARMAINE SMITH (“Ms Smith”) (the company administrator) had had a look at it and that he had definitely referred to the Award when preparing the contract.

29. Mr Petridis stated that no employee was on a similar contract at the time but there was now one employee on a similar contract.

30. Mr Petridis was asked in reference to the Applicant’s action in getting up to copy the work schedule:

    So he was prepared to actually continue his work, because he was getting his Monday schedule ready?

    ‑‑‑Yes, you were going to continue work.

    Okay.  What happened between that and the next period?  I don’t understand, because as soon as – in your affidavit, it states that I was asking if I was being terminated?

    ‑‑‑You were very close to the stairs and you were saying, “Are you terminating me?” I said, “No, not terminating you.”

    But what was said in order to lead up to that?

    ‑‑‑I don’t know.  I don’t know.  You just said that. You obviously thought that we were terminating you.[22]

    [22] Extract of transcript 21 February 2013 at page 54 lines 38-47.

31. Mr Petridis said he could not recall the conversation with Mr Belcastro.

32. Mr Masoni’s evidence was that from the beginning of the meeting, the Applicant began voicing his concern in relation to the certain aspects of the agreement – he referred in particular to the 50-hour week and the restraint of trade.

    We commenced the conversation by, you know, “Have you had time to think?” and “What do you have?” and he basically just came out with, you know, it is a bogus contract and we said okay, fine, but what is it that we can do to – we tried to negotiate and say let’s clean something up and tell us what it is and he basically went on to say, “All I want is a $23 an hour and not to sign any contract whatsoever.” Evan said no, well, we have really got to look at that. Are you sure there’s things there that we can’t fix?  He mentioned about the 50 hours that, you know, we probably, that we were going to work him to the bone and all I kept doing was just listening at that point.[23]

    [23] Extract of transcript 21 February 2013 at page 58, lines 36-44.

33. Mr Masoni referred to the Applicant’s action in getting up to check his work sheet for the next day during the meeting and to his comments about them being “bad employers”.[24]

    [24] Extract of transcript 21 February 2013 at page 60 at line 7.

34. Towards the end of the meeting Mr Masoni described the events as follows:

    Can you describe what happened there?

    ‑‑‑Basically he was standing up at that point, Richard was standing up near the staircase and you know, we were just saying, “So what is it that you want?” and he kept saying, “I don’t want anything. I just want $23.00 an hour and that’s it.” And that’s when Evan said, “Well, we have a problem,” and that’s when Richard said, “So what? Are you terminating me?” He said, “No, we’re trying to negotiate.” He said it again, “Are you terminating me?” “No, we’re not, we’re trying to negotiate.” And he threw his keys on my desk and then proceeded to walk down the stairs.[25]

    [25] Extract of transcript 21 February 2013 at page 60 at lines 19-26.

35. Mr Masoni denied that the Applicant has suggested taking out the restraint of trade clause: “Never mentioned anything. He brought up that issue but he never said to take it out. Absolutely not.”[26] It was the 50 hours the Applicant was concerned about.

    [26] Extract of transcript 21 February 2013 at page 61 at lines 2-3.

36. Mr Masoni said the conversation was between the Applicant and Mr Petridis. “The only time I arced up is when he was starting to question us as employers and a company.”[27] He denied saying “We are not firing you. You are leaving of your own accord.”[28] He stated that in response to the question, “Are you terminating me?” he had said, “I wouldn’t be that stupid”.[29]

    [27] Extract of transcript 21 February 2013 at page 61 at lines 42-43.

    [28] Extract of transcript 21 February 2013 at page 62 at lines 18-20.

    [29] Extract of transcript 21 February 2013 at page 62 at line 23.

37. In cross-examination Mr Masoni said he had never questioned the contract. He agreed that the minimum hours required of the Applicant had been 37½. He read out the amount of overtime paid to the Applicant over 11 pay periods.

38. Ms Smith gave evidence that she had left the premises prior to the meeting on 27 April 2012. She returned about 6.30 p.m. and saw Mr Petridis and Mr Masoni standing outside. They had told her that the meeting had not gone well and that the Applicant had stormed out. They told her that he had threatened to report them to WorkSafe and OH&S. She told them that they needed to take notes of what happened in the meeting.

39. Ms Smith produced a typed up document headed “Summary of Meeting between Evan Petridis, Maurizio Masoni and Risyad Chileshe on 27^th April 2012”,[30] which she said she had typed up from her handwritten notes of a conversation with the two directors on 27 April 2012:

    ·    Meeting was to discuss Contract of Employment between Risyad Chileshe and Yellow Brick Road Service Group P/L

    ·    Contract of Employment was given to Risyad Chileshe 18/04/12 (approx.) for his perusal and comments

    ·    Evan and Maurizio invited Risyad up to the office to discuss.

    ·    Risyad Chileshe stated that he did to want to sign the contract.

    ·    Risyad was asked what he wanted and his reply was: His reasons for not accepting the contract was that he felt that it was biased for the Employer and he did not want to work on a salary basis but on an hourly rate. We asked him several times what changes or concerns he had and was not willing to negotiate. He did not want to even discuss the terms.

    ·    Meeting was finished when Risyad refused to sign the contract. He then stated “so are you terminating me”. This was said 3 times by Risyad. Evan deigned (sic) this was happening and wanted to further discuss the Contract issues. See if there was any agreement they could all come to. Risyad then threw the keys on the desk and left the premises.

    ·    Risyad then went to the van and cleaned out some of his personal items. He then went back into the factory and threaten (sic) Evan and Maurizio by stating “expect a call from OH&S and Work Cover”.

    ·    Evan and Maurizio where (sic) trying to bring up concerns that they had with Risyad (refer documents “Issues/Areas to improve on” We attempted to bring this document to his attention).[31]

    [30] Affidavit sworn by Evan Petridis on 25 July 2012 at Annexure 1.

    [31] Ibid.

40. Ms Smith said that she was not aware of the contents of the contract at the time and that the directors had never discussed the contents of the contract with her.

The relevant Award and the ‘Employment Agreement’

1. The relevant award is the Cleaning Services Award 2010 [MA000022]. The Applicant was employed as a carpet cleaner. The Respondent says this is a Level 2 employee under the Award. The Applicant says he performed the tasks of a Level 3 employee under the Award. At the relevant time, the rate of pay for a full-time Level 2 employee was $17.14 per hour and $18.06 for a Level 3, although under the transitional provisions, if an employee commenced work between 6.00 a.m. and 7.00 a.m., the rate was $18.27 for a Level 2 employee and $19.30 for a Level 3.

2. Under clause 24—Ordinary hours of work,[32] the ordinary hours of work are not to exceed 38 per week. Ordinary hours can be worked on any day of the week, provided an employee has two consecutive days off per week. If ordinary hours are worked on a Saturday however, all such hours are paid at time and a half.

   [32] Cleaning Services Award 2010 [MA000022].

3. Clause 28—Overtime,[33] provides for an employee to work reasonable overtime and to be paid time and a half for the first two hours and double time thereafter.

   [33] Ibid.

4. The document presented to the Applicant contains several job headings relating to “Confidentiality”, “Restraint of Trade”, “Job Summary”, “Technician Reporting Relationship”, “Essential Functions”, “Accountabilities”, “Motor Vehicle Usage”, “Mobile Phone Usage” and “Wage Offer”.[34]

   [34] Affidavit sworn by Charmaine Smith on 7 November 2012 at Annexure 1.

5. Under the heading “Wage Offer” the following appears:

   Gross Wage of $1150.00 per week is based on 50 hours @ $23 per hour worked – NO overtime is to be paid. There would be a flat rate of $30.00 per hour for time worked on a Saturday – with No minimum hours to be worked.

Gross	Tax	Nett
$1.150.00	$235.00	$915.00

10% – Commissions apply on ‘Up Sales’ that are made.

Description of ‘Up Sales’

eg. Job booked in diary as 1 x 3 Upholstery clean.

Work completed – 1 x 3 and 1 Bedroom

10% Commission is to apply to the 1 Bedroom only.[35]

[35] Affidavit sworn by Maurizio Masoni, 25 July 2012 at Annexure 1.

1. On the face of it, the document requires an employee to work a 50-hour week. In addition, there is no overtime paid and all work on a Saturday is to be paid at $30.00 per hour.

2. The document is unclear as to whether work on a Saturday is ‘overtime’ or in addition to the 50 hours specified or not. If it is overtime, then $30.00 per hour would be below the Award rate for all overtime in excess of two hours worked.

3. It is apparent that the agreement was drafted without reference to the Award – as claimed by Mr Petridis, or to Ms Smith – as also claimed by him. Ms Smith, herself, was unaware of the terms of clause 28—Overtime, of the Award, in particular the reference to double time being payable after two hours of overtime.

4. Further the Victorian legislation with the respect to occupational health and safety is the Occupational Health and Safety Act 2004 (Vic) not the “OHAS Act 2001”.[36] The agreement also appears to make a cleaner responsible for meeting sales targets which goes beyond the scope of duties of a Level 2 or Level 3 employee under the Award.

   [36] Affidavit of Maurizio Masoni sworn 25 July 2012 at Annexure 1, paragraph headed “Essential Functions”.

5. It is more likely than not that the document was simply copied by Mr Petridis from some source – a company operating in New South Wales was cited by the witnesses – than it was drafted by Mr Petridis with reference to the Award and the company’s administrator.

6. While neither the Act nor the Award define ‘reasonable’ overtime, it is arguable that compulsory overtime of 12 hours per week – even if the rate of pay exceeded what would be payable under the Award for two hours at time and a half and 10 hours at double time – might be considered to be ‘unreasonable’ depending on the nature of the business and the situation of the employee.

Was the Applicant’s employment terminated?

1. The Applicant has maintained in relation to the events of 27 April 2012, that all proposals put by him to Mr Petridis and Mr Masoni were rejected and that his employment was terminated because of his refusal to sign the contract. There is some support for this version of the events in the evidence of Mr Belcastro who, despite his later retractions, made a statement in August 2012 that Mr Petridis had told him that the Applicant “no longer worked for YBR as (the Applicant) had refused to sign the contract”[37] and who, in his oral evidence, stated that immediately after the events on the same day, the Applicant told him that he (the Applicant) has been fired.

   [37] Affidavit of Amos Belcastro sworn 15 August 2012 at paragraph 4.

2. Both Mr Petridis and Mr Masoni in their evidence insisted that they were ‘negotiating’ and yet they gave no evidence of any negotiation on their part. Apart from asking the Applicant what he wanted and telling the Applicant they had a problem because he just wanted to be on wages and overtime, they gave no evidence of any proposal put by them in an attempt to reach a compromise.

3. The term ‘negotiation’ implies a willingness to compromise a position in order to reach an agreement. The description of the meeting given by the Applicant and Mr Petridis and Mr Masoni is consistent in so far as they refer to the Applicant being asked his view of the contract and responding with his concerns. Both Mr Petridis and Mr Masoni also referred to the Applicant’s reference to them as bad employers. Neither of them referred to any counter proposals put by them which would be consistent with a ‘negotiation’.

4. Apart from their evidence that they told the Applicant they were trying to negotiate, there was no evidence given that would suggest that any compromise of the terms proposed was acceptable.

5. All three witnesses refer to a point in the meeting when the Applicant got up and started to prepare his work sheets for the day. The Applicant says he did this because the discussion with Mr Petridis and Mr Masoni was getting nowhere. His actions do not indicate an intention to leave his employment.

6. The Applicant says that it was at this point that Mr Petridis told him that if he would not sign the agreement he would have to finish up and a discussion then ensued about whether he was being fired or not.

7. Mr Petridis evidence was that at this point:

   Can you tell us a little bit more of what happened from there?

   ‑‑‑Yes. The - as we were having the meeting he obviously got up, got to the diary and proceeded to photocopy his work for the next day. And that’s when we said, Richard, we’re sitting down having a meeting here. You know, you can't just get up and do what you need to - do what you want to do. 

   And what did he do then?

   ‑‑‑He then said, well, I’m not signing the contract. And he threw his keys down onto the table and proceeded to walk downstairs. Came back upstairs again and said I need my - I need the keys to the van so I can take out my equipment and so we did that.[38]

   [38] Transcript of proceedings, 21 February 2013, page 45 at lines 36-47.

8. Mr Masoni’s evidence was:

   Can you describe what happened there?

   ‑‑‑Basically he was standing up at that point, Richard was standing up near the staircase and you know, we were just saying, “So what is it that you want?” and he kept saying, “I don’t want anything. I just want $23 an hour and that’s it.” And that’s when Evan said, “Well, we have a problem,” and that’s when Richard said, “So what?  Are you terminating me?” He said, “No, we’re trying to negotiate.” He said it again, “Are you terminating me?” “No, we’re not, we’re trying to negotiate.” And he threw his keys on my desk and then proceeded to walk down the stairs.[39]

   [39] Transcript of proceedings, 21 February 2013, page 60 at lines 17-26.

9. The Applicant submits that he tried to negotiate with Mr Petridis and Mr Masoni but they refused to negotiate. The negotiations failed because the contract was unfair. The directors were not willing to negotiate and the agreement they wanted him to sign lacked the protections afforded by the Award.

10. The Respondent submits that it was willing to negotiate and that the Applicant chose to abandon those negotiations. He decided to walk away from the table. The directors were not angry during the meeting. The Applicant threw his keys on the table and walked out.

11. On balance I accept the Applicant’s evidence about what occurred at the end of the meeting. It is clear that both Mr Petridis and Mr Masoni were upset by the Applicant’s derogatory comments about the company and his actions in commencing to prepare his worksheets. They saw his position as belligerent and intransigent. For his part, the Applicant could not see any willingness on the part of Mr Petridis and Mr Masoni to accept any of his objections. Both sides were clearly unhappy about the situation.

12. The notes taken by Ms Smith of her conversation with the directors after the meeting need to be considered in the light of the fact that she was not present at the meeting and had been told by them that as he left the Applicant threatened to call Fair Work and/or WorkSafe.

Was there a workplace right breached?

1. The Respondent submits that if there was a dismissal then the application should still fail because there was no workplace right that was breached. The Applicant’s position appears to be that the workplace right was the right to insist on minimum award provisions.

2. The Respondent submits that there was no such right because the Applicant did not fully negotiate and the Respondent’s position was never that it was take it or leave it. The Respondent was willing to offer a rate which was above the Award rate and there was no attempt to impose below minimum award conditions on the Applicant.

3. Section 340 of the Act provides:

   Protection

   (1)A person must not take adverse action against another person:

   (a)     because the other person:

   (i)     has a workplace right; or

   (ii)    has, or has not, exercised a workplace right; or

   (iii)   proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b)to prevent the exercise of a workplace right by the other person.

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

   (2)A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

   Note This subsection is a civil remedy provision (see Part 4-1).[40]

   [40] Fair Work Act 2009 (Cth), at s.340.

4. Section 341 of the Act provides that a person has a workplace right if:

   (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; or

   (b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (c)is able to make a complaint or inquiry:

   (i)     to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)    if the person is an employee--in relation to his or her employment.

5. The Respondent accepts that the Applicant’s employment was covered by the terms of the Award. The Applicant was also clearly entitled to the benefits of the Act and, in particular, the National Employment Standards. Those include s.62 of the Act which provides:

   Maximum weekly hours

   Maximum weekly hours of work

   (1)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:

   (a)    for a full-time employee--38 hours; or

   (b)for an employee who is not a full-time employee--the lesser of:

   (i)      38 hours; and

   (ii)    the employee’s ordinary hours of work in a week.

   Employee may refuse to work unreasonable additional hours

   (2)The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.

   Determining whether additional hours are reasonable

   (3)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.

   Authorised leave or absence treated as hours worked

   (4)For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:

   (a)     by the employee’s employer; or

   (b)by or under a term or condition of the employee’s employment; or

   (c)by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.[41]

   [41] Fair Work Act 2009 (Cth), at s.62.

6. The Respondent has attempted to conflate the issues of whether the Applicant had a workplace right and whether he was dismissed because he had a workplace right.

7. The Applicant clearly had workplace rights which derived from the Award and the provisions of the Act. He was not bound to sign a contract which contained the terms proposed by the Respondent.

8. If it is accepted that the Applicant’s employment was terminated by the Respondent, then the issue is whether the employment was terminated because he had those workplace rights.

9. By virtue of s.361 of the Act, the onus is on the Respondent to establish that the termination was not for a reason or did not include a reason which would contravene s.340(1) of the Act.

What was the reason for the termination?

1. If the Court accepts that the Respondent terminated the Applicant’s employment, the onus is then on the Respondent to establish the reasons for the termination. In this matter, the Respondent’s evidence was to the effect that it did not terminate the Applicant’s employment.

2. If that is not accepted, the Respondent has provided no other evidence as to why the employment was terminated.

3. It has therefore not discharged the onus in s.361 of the Act.

Conclusions

1. I am satisfied on the evidence that:

   ·The Applicant was entitled to the benefit of the Cleaning Services Award 2010 and the Fair Work Act 2009 (Cth).

   ·The Applicant’s employment was terminated by the Respondent.

   ·The Respondent has not established that the termination of the Applicant’s employment was not for a reason or reasons which included his entitlement to the benefit of the Award and the Act.

2. The Respondent has therefore contravened s.340 of the Act.

3. The Applicant seeks that a penalty of $20,000.00 be imposed on the Respondent.

4. The Applicant is given 14 days to file and serve submissions in writing in support of the penalty. The Respondent is to have a further 14 days to make any submissions in reply.

5. Unless a request is made in writing for an oral hearing, the issue of appropriate penalty will be dealt with on the basis of the written submissions.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Date:  12 April 2013