Dicks v Gemco Foods Pty Ltd

[2012] FMCA 230

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DICKS v GEMCO FOODS PTY LTD [2012] FMCA 230

INDUSTRIAL LAW – Alleged breaches of the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth) – 11 breaches found – five courses of conduct – failure to pay the appropriate rate of pay between February 2010 and 1 July 2010 – failure to comply with the provisions of the Modern Award as it applied from 1 January 2010 – failure to pay the appropriate rate of pay under the provisions of Modern Award as it applied from 1 July 2010 – failure to comply with the National Employment Standards with respect to personal leave – failure to provide Applicant with work after she raised her complaint with the employer and Fair Work Australia – imposition of penalty – factors relevant to calculation of penalty.

Fair Work Act 2009 (Cth)

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Workplace Relations Act 1996 (Cth)

Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Liquor and Accommodation – Restaurants – Victoria Award 1998 [AP787213CRV]
Restaurant Industry Award 2010 [MA000119]

Australian Licensed Aircraft Engineers Associate v Qantas Airways Ltd & Anor [2011] FMCA 58.
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14.
Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064.
Fair Work Ombudsman v Bosen Pty Ltd & Others [2011] VMC 21.
Fair Work Ombudsman v Roselands Fruit Market Pty Ltd & Anor [2011] FMCA 599.
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080.
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7.
Reed v Blue Lines Cruises Ltd (1996) 73 IR 420.

Applicant: ASHLEA VERONICA DICKS

Respondent: GEMCO FOODS PTY LTD

File Number: MLG 1735 of 2010

Judgment of: Whelan FM

Hearing dates: 17 & 18 October 2011

Date of Last Submission: 18 October 2011

Delivered at: Melbourne

Delivered on: 26 March 2012

REPRESENTATION

Counsel for the Applicant: Mr Addison

Solicitors for the Applicant: Maddison & Associates Pty Ltd

Counsel for the Respondent: Mr Shaw

Solicitors for the Respondent: Ambi Associates

ORDERS

THE COURT DECLARES THAT:

1. The Respondent breached s.182 of the Workplace Relations Act 1996 (Cth) as it continued to apply by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), by failing to pay the Applicant the basic period rate of pay for the work performed by her on 12 February 2010.

2. The Respondent breached s.185 of the Workplace Relations Act 1996 (Cth) as it continued to apply by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), by failing to pay the Applicant a casual loading on the following dates:

   ·16 February 2010;

   ·20 February 2010;

   ·23 February 2010;

   ·24 February 2010;

   ·25 February 2010;

   ·1 March 2010;

   ·2 March 2010;

   ·5 March 2010;

   ·9 March 2010;

   ·10 March 2010;

   ·12 March 2010;

   ·13 March 2010;

   ·17 March 2010;

   ·19 March 2010;

   ·21 March 2010;

   ·26 March 2010;

   ·27 March 2010;

   ·28 March 2010;

   ·2 April 2010;

   ·3 April 2010;

   ·4 April 2010;

   ·6 April 2010;

   ·8 April 2010;

   ·9 April 2010; and

   ·10 April 2010.

3. The Respondent breached s.182 of the Workplace Relations Act 1996 (Cth) as it continued to apply by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), by failing to pay the Applicant the basic period rate of pay applicable being the rate for a Grade 2 Food and Beverage Attendant under the Liquor and Accommodation – Restaurants – Victoria Award 1998 [AP787213CRV] on the dates specified in paragraph (2) above and also on the following dates:

   ·21 April 2010;

   ·24 April 2010;

   ·27 April 2010;

   ·30 April 2010;

   ·1 May 2010;

   ·6 May 2010;

   ·7 May 2010;

   ·8 May 2010;

   ·9 May 2010;

   ·11 May 2010;

   ·13 May 2010;

   ·15 May 2010;

   ·19 May 2010;

   ·21 May 2010;

   ·24 May 2010;

   ·26 May 2010;

   ·30 May 2010;

   ·31 May 2010;

   ·2 June 2010;

   ·3 June 2010;

   ·4 June 2010;

   ·5 June 2010;

   ·6 June 2010;

   ·10 June 2010;

   ·11 June 2010;

   ·12 June 2010;

   ·13 June 2010;

   ·15 June 2010;

   ·18 June 2010;

   ·19 June 2010;

   ·20 June 2010;

   ·25 June 2010; and

   ·26 June 2010.

4. The Respondent breached s.45 of the Fair Work Act 2009 (Cth) by failing to apply the provisions of clause 20.1 of the Restaurant Industry Award 2010 [MA000119], by failing to pay the Applicant the applicable minimum hourly rate for a Food and Beverage Attendant Grade 2 on each of the following dates:

   ·2 July 2010;

   ·3 July 2010;

   ·6 July 2010;

   ·8 July 2010;

   ·9 July 2010;

   ·10 July 2010;

   ·11 July 2010;

   ·15 July 2010;

   ·16 July 2010;

   ·17 July 2010;

   ·18 July 2010;

   ·19 July 2010;

   ·20 July 2010;

   ·21 July 2010;

   ·23 July 2010;

   ·25 July 2010;

   ·27 July 2010;

   ·28 July 2010;

   ·2 August 2010;

   ·4 August 2010;

   ·6 August 2010;

   ·7 August 2010;

   ·9 August 2010;

   ·10 August 2010;

   ·14 August 2010;

   ·15 August 2010;

   ·17 August 2010;

   ·21 August 2010;

   ·30 August 2010;

   ·3 September 2010;

   ·11 September 2010;

   ·13 September 2010;

   ·14 September 2010;

   ·25 September 2010;

   ·27 September 2010;

   ·3 October 2010;

   ·7 October 2010;

   ·8 October 2010;

   ·14 October 2010;

   ·15 October 2010;

   ·16 October 2010; and

   ·18 October 2010.

5. The Respondent breached clause 12.3 of the Restaurant Industry Award 2010 [MA000119] by failing, at the time of the Applicant’s engagement as a part-time employee, to agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

6. The Respondent breached clause 12.4 of the Restaurant Industry Award 2010 [MA000119] by failing to record any variation to the hours of work in writing.

7. The Respondent breached clause 12.7 of the Restaurant Industry Award 2010 [MA000119] in the following weeks, by failing to pay all time worked in excess of the hours agreed at the rates prescribed in clause 33–Overtime:

   ·8 – 14 March 2010;

   ·15 – 21 March 2010;

   ·29 March – 4 April 2010;

   ·5 – 11 April 2010;

   ·3 – 9 May 2010;

   ·31 May – 6 June 2010;

   ·7 June – 13 June 2010;

   ·5 July – 11 July 2010; and

   ·9 August – 15 August 2010.

8. The Respondent breached s.45 of the Fair Work Act 2009 (Cth) by failing to apply clause 24.1 of the Restaurant Industry Award 2010 [MA000119] (as varied by Schedule A – Transitional Provisions) by failing to pay the Applicant the applicable percentage of the minimum wage for the relevant classification for work performed on a Saturday, Sunday or Public Holiday on the following dates:

   ·3 July 2010;

   ·10 July 2010;

   ·11 July 2010;

   ·17 July 2010;

   ·18 July 2010;

   ·25 July 2010;

   ·7 August 2010;

   ·14 August 2010;

   ·15 August 2010;

   ·21 August 2010;

   ·11 September 2010;

   ·25 September 2010;

   ·3 October 2010;

   ·16 October 2010; and

   ·23 October 2010.

9. The Respondent breached s.45 of the Fair Work Act 2009 (Cth) by failing to apply clause 34.2 of the Restaurant Industry Award 2010 [MA000119] (as varied by Schedule A–Transitional Provisions) by failing to pay the Applicant the applicable percentage of the standard hourly rate per hour on the following dates:

   ·2 July 2010;

   ·9 July 2010;

   ·16 July 2010;

   ·27 July 2010;

   ·28 July 2010;

   ·6 August 2010;

   ·30 August 2010;

   ·3 September 2010;

   ·13 September 2010;

   ·14 September 2010;

   ·7 October 2010;

   ·8 October 2010;

   ·18 October 2010;

   ·26 October 2010;

   ·29 October 2010; and

   ·8 November 2010.

10. The Respondent breached s.44 of the Fair Work Act 2009 (Cth) by failing to pay the Applicant her base rate of pay for the ordinary hours of work when she took a period of paid personal/carers leave on

    
    

    28 May 2010, in accordance with s.99 of the Fair Work Act2009 (Cth).

11. The Respondent contravened s.343(1) of the Fair Work Act 2009 (Cth) by taking action against the Applicant with intent to coerce her not to exercise a workplace right.

THE COURT ORDERS THAT:

1. The Respondent pay to the Applicant ASHLEA VERONICA DICKS the sum of $20,000.00 forthwith.

2. The Respondent pay to the Commonwealth the sum of $10,000.00 forthwith.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1735 of 2010

ASHLEA VERONICA DICKS

Applicant

And

GEMCO FOODS PTY LTD

Respondent

REASONS FOR JUDGMENT

Background

1. The Respondent GEMCO FOODS PTD LTD (“Gemco Foods”) was registered in Victoria in October 2009. The directors were Devender Gupta, Nirmala Gupta and Vinod Kumar. Gemco Foods manages the business ‘The Groove Train Melbourne Central’, which is owned by the Gemco Unit Trust of which Devender Gupta is the sole beneficiary. The business commenced operating on 3 December 2009.

2. On 1 January 2010, the Restaurant Industry Award 2010 [MA000119] (“the Modern Award”) commenced operation. Certain provisions of that Award, in particular those in relation to minimum wages, casual or part-time loadings, Saturday, Sunday, public holiday, evening and other penalties and shift allowances, did not come into operation until 1 July 2010 and were then subject to certain transitional arrangements.

3. When an employer was not subject to an award prior to 1 January 2010 by virtue of the effect of the operation of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), that employer, prior to

   
   

   1 July 2010, was not liable to pay penalty rates or other allowances but was required to pay the basic periodic rate of pay, as prescribed by the Australian Fair Pay and Conditions Standard for the classification (in this case, as derived from the Liquor and Accommodation Industry – Restaurants – Victoria Award 1998 [AP787213CRV]) and, if the person was a casual employee, a loading of 20% of that rate.

4. After 1 July 2010, by virtue of the transitional provisions of the Modern Award, where there was no existing loading or penalty or where the loading was less than the award rate, the increases were subject to phasing provisions increasing by annual increments over a four-year period.

5. The Applicant ASHLEA VERONICA DICKS (“the Applicant”) commenced employment on 12 February 2010 when she worked for a period of four hours for which she was not paid. She was already an experienced food and beverage attendant as can be seen from her resume.[1] It was her evidence that her first paid shift was on

   
   

   16 February 2010 for which she was paid cash in hand $13.30 per hour. The Applicant described her duties as sitting “between a Level 1 and a Level 2 employee, not as a[n] introductory entry level”.[2] On the basis of the Applicant’s experience, she could not have been an introductory employee and if she was engaged in any of the duties of a Grade 2 employee as described in the Liquor and Accommodation Industry – Restaurants – Victoria Award 1998 [AP787213CRV] then the appropriate classification for the purposes of the Australian Fair Pay and Conditions Standard was Grade 2.

   [1] Exhibit A2, Folder of Discovered Documents: Supplementary Documents.

   [2] Exhibit A1, Chronology, page 1.

6. It is further clear that at this stage the Applicant was engaged as a casual employee, one who worked under an arrangement characterised by “informality, uncertainty and irregularity”[3] and therefore should have been paid the appropriate rate for a Grade 2 food and beverage attendant plus a loading of 20%. It is obvious that $13.30 per hour was significantly less than that rate.

   [3] Reed v Blue Lines Cruises Ltd (1996) 73 IR 420 at [425].

7. There are no time sheets, time cards, pay slips or other records of the Applicant’s employment prior to 20 April 2010. The evidence before the Court is that around 12 April 2010, Mr Deepak Gupta approached the Applicant and asked her if she would like to become a part-time staff member. Mr Deepak Gupta is the manager of Gemco Foods, and the son of Mr Devender Gupta.

8. It was the Applicant’s evidence that the agreement reached between her and Mr Gupta was that she would go ‘on the books’ and she would work 20 hours a week as a part-time employee, subject to her school commitments, so long as the 20 hours was normally reached.[4] Any hours in excess of 20 would be paid ‘cash in hand’.[5]

   [4] Transcript of 17 October 2011, page 18 at lines 37–42.

   [5] Transcript of 17 October 2011, page 19 at lines 13–14.

9. The Applicant raised a concern about being paid in this way and offered to work through her business. This was rejected.

   
   

   On 16 April 2010, the Applicant completed a Tax File Declaration in which she described herself as a ‘part-time’ employee.

10. Mr Gupta’s evidence was that he approached the Applicant to become part-time for hours based on her reasonable availability. There was no commitment made for 20 hours. He denied telling the Applicant that she would be paid cash in hand for hours in excess of 20.

11. The first pay slip issued to the Applicant is for the period

    
    

    12 April 2010 to 18 April 2010 and shows an hourly rate of $17.89 and a total of five hours. Mr Gupta’s evidence was that the rate of $17.89 was the rate applicable for a casual employee. After that date the pay slips show a rate of $14.31 per hour although later ‘payroll advice’ slips show a rate of $15.00 per hour and the Applicant says that she began to receive that rate from July 2010. In July 2010, $15.00 per hour was the award rate for an introductory employee.

12. According to the Applicant’s own diary, she was rostered to work on

    
    

    28 May 2010 but did not do so as she was ill. She stated that she gave a medical certificate to either Mr Martin Morgan or Mr Deepak Gupta. Mr Gupta says that he never received the certificate. She was not paid for this shift.

13. The Applicant stated that there was never a regular roster for her employment although, because weekends were the busiest time and she was at school during the week, she generally worked one or two night shifts during the week and generally a 12-hour shift on the weekend.

14. The Respondent was unable to produce time sheets or time cards which established the actual hours worked by the Applicant. It was

    
    

    Mr Deepak Gupta’s evidence that a laptop containing employee records was stolen from the premises and records therefore lost. This does not explain the absence of time sheets, time cards or an ‘availability diary’ covering all of the relevant period of the employment. The only evidence before the Court of the actual hours worked by the Applicant was therefore her own diary in which she noted shifts and a spread sheet, which she had compiled based on those diary notes.

15. The Applicant explained discrepancies between her records and the pay slips provided in relation to hours worked on the fact that hours in excess of 20 were paid cash in hand. This was denied by

    
    

    Mr Deepak Gupta but supported by the evidence of Mr Wepukhulu, a fellow employee. His evidence was that he was paid cash in hand on a regular basis for hours in excess of 20. Those payslips which were produced for Mr Wepukhulu, and it is not clear that these covered all of the employment period, show a rate of $15.00 per hour being paid with most weeks showing 20 hours worked.

16. When specific incidents were put to Mr Gupta of the Applicant working in excess of 20 hours and being paid in cash, he responded that he did not remember.

17. The Applicant says that in July 2010 she began to raise issues about sick leave, over-time pay and public holiday pay with Mr Martin Morgan. Mr Morgan was the manager of the restaurant and reported to Mr Deepak Gupta. The Applicant says that Mr Morgan told her he would raise the issues with management.

18. The Applicant was rostered to work according to a roster developed by Mr Morgan and/or Mr Deepak Gupta based on the entries made by employees in a ‘Red Diary’ kept in the restaurant. The ‘Red Diary’ produced to the Court[6] covers the period from 24 June 2010 to

    
    

    1 January 2011 only.

    [6] Exhibit A3, Red Diary dated 24/06/2010 - 03/01/2011.

19. Mr Deepak Gupta denied that Mr Morgan raised any issues with him concerning employee unhappiness about pay rates, overtime or other conditions.

20. In August 2010, Mr Morgan took some time off work. During that time, the restaurant was managed by Mr Deepak Gupta and a senior supervisor identified only as ‘Ken’.

21. The Applicant says that the restaurant was very short-staffed at the time and a lot of responsibility fell on the longer serving staff. One evening in frustration she resigned and told Ken. Mr Deepak Gupta’s evidence was that he was not at the restaurant at the time and was only aware that the Applicant had left before the end of her shift and did not turn up for her next shift. He asked Mr Morgan to ring her and ask her to come in for a meeting.

22. The Applicant says that it was arranged with Mr Morgan that she would have a week off and meet with Mr Devender Gupta, the owner of the business. The Applicant says that at that meeting she raised concerns about a number of issues including pay, overtime, responsibility of staff and staff training. It was agreed that changes would be made over a three-month period as the Respondent had just purchased a second restaurant and could not make changes due to lack of finance. It was agreed with Mr Morgan that she would only work two to three shifts over the next week and following that would return to the 20 hours previously agreed.

23. Neither Mr Devender Gupta nor Mr Martin Morgan were called to give evidence. Mr Deepak Gupta stated that he was not at the meeting and was only told by Mr Devender Gupta to arrange coffee-making training for the staff. The Applicant came back to work and asked him to reduce her shifts that week. The next week she asked him to increase her shifts.

24. The Applicant stated that following the week where she asked to reduce her shifts, her part-time hours of 20 per week were not restored. She approached Mr Deepak Gupta several times and was told that work was not available. She found additional work at Gloria Jeans which was approved by Mr Martin Morgan. Mr Deepak Gupta stated that the Applicant was rostered according to her availability.

25. The ‘Red Diary’ for September and October 2010 shows that the Applicant was not available to work on 10 September; 16 September; 20 September; 5 October; 11 October; 12 October; 28 October; and 31 October. She was available for day work only on 24 September; 26 September; 27 September; 28 September; 30 September; 4 October; 9 October; 10 October; and 29 October. She was only available for work after 4.00pm or 6.00pm on 23 September; 25 September; 3 October; 7 October; 8 October; 14 October; 16 October; 26 October; 27 October; and 30 October.

26. During that period she worked 6.25 hours on 3 September; 4 hours on 11 September; 5 hours on 13 September; 5 hours on 14 September; 3.75 hours on 25 September; 3.5 hours on 27 September; 3.75 hours on 3 October; 4.25 hours on 7 October; 5 hours on 8 October; 3 hours on 14 October; 3 hours on 15 October; 3 hours on 16 October; 3.5 hours on 18 October; 3.5 hours on 23 October; 4.5 hours on 26 October; and 4.5 hours on 29 October.

1. The Applicant stated that during this time the restaurant continued to take on new staff who were offered shifts in preference to her.

2. During October 2010, the Applicant says that a document, which she described as a ‘contract’ and Mr Deepak Gupta described as a ‘policy’, was left on the bar for all staff to sign. According to the Applicant, this document stated that employees would no longer be paid according to their clock cards but on their rostered shifts. This meant that if you were rostered for work from 6.00pm to 10.00pm and worked after 10.00pm you would only be paid for four hours. The Applicant refused to sign this document. Mr Deepak Gupta stated that the document was a staff policy about not coming to work late and to follow set shift times. It was not signed by any staff. He no longer had the document.

3. The Applicant asked for a meeting with Mr Deepak Gupta. She questioned him about annual leave, sick leave and regular shifts. She asked him if she was considered a casual employee and if so she was entitled to a 25% loading. She was told that she could continue on the agreement she was on or receive a casual loading and receive shifts when he felt like calling her. The Applicant was not rostered for

   
   

   20 hours per week.

4. At the Applicant’s request, Mr Deepak Gupta met with her and her legal representative on 25 October 2010. At the meeting, the relevant Award provisions were discussed and the issue of the 20 hours per week. The Applicant stated that it was agreed at that meeting that the situation would be repaired, the rates of pay would be rectified and she would be rostered for 20 hours per week. The meeting was followed by a letter from the Applicant’s lawyer to Mr Deepak Gupta setting out the ‘agreed’ matters. Mr Deepak Gupta responded as follows:

   Mr Maurice,

   Received your email and would like to submit as below

   1) Mr. Martin is the manager of the business and not myself as address by you.

   2) As Martin was on his day off, I will forward this mail to him and discuss all the issues raised by you on behalf of Ms Dicks.

   3) Ms Dicks can call Martin for getting herself rostered, I doubt at this stage he might not be able to accommodate for this week.

   However after discussing with Martin, the fact would be brought to your notice as alleged by you.

   Thanking You,

   Deepak.[7]

   [7] Exhibit A2, Folder of Discovered Documents: Email from Gupta to Maddison Associates dated 25 October 2010. 

5. In his oral evidence, Mr Deepak Gupta said that he told Mr Maurice Addison (the Applicant’s legal representative) that he would have a meeting with ‘the management’ and get the issues resolved as soon as possible.

6. Following the meeting, the Applicant was rostered to work on Tuesday 26 October and Wednesday 27 October 2010. On Tuesday she was rostered from 6.00pm to 10.00pm and was sent home at 10.00pm while the casual who was meant to work from 6.00pm to 9.30pm was kept on. She was told that the manager had directed that she finished at 10.00pm.

7. The Applicant was not rostered for any shifts the following week and on 27 October 2010 an application was made to Fair Work Australia alleging a dispute over an alleged contravention of s.340 and s.343 of the Fair Work Act 2009 (Cth).

8. On 18 November 2010, the Applicant met with Mr Devender Gupta to try to reach agreement on a 20-hour roster. The roster proposed by the Respondent involved no hours after 10.00pm and no weekend work. The parties were unable to reach agreement on a roster as the Applicant considered that she should be entitled to at least on weekend shift.

9. On 23 November 2010, the Applicant left Australia on a holiday to Europe. She wrote in the ‘Red Diary’ for 23 November 2010 ‘Ash goes away not back until December 13th!’ and on 13 December ‘Ash gets back – is free to work’.[8]

   [8] Exhibit A3, Red Diary dated 24/06/2010 - 03/01/2011.

10. On 14 December 2010, an email was sent to the Applicant by

    
    

    Mr Vinod Kumar (it is not clear was role Mr Kumar played in the business) saying:

    Our Understanding was that you will be back at work after your holidays on 13^th December. You havent contacted us asyet. (sic) Please let us know your intentions are so we can make appropriate arrangements.

    We would also like to sit down with you and discuss your concerns regarding the employment agreement which you need to sign if you are happy to continue to work here.[9]

    [9] Exhibit A2, Folder of Discovered Documents: Email from Gemco Foods Pty Ltd (Vinod Kumar) to the Applicant dated 14 December 2010.

11. On 16 December 2010, the Applicant wrote to the Respondent:

    I am back, I didn’t get back until late last night. I believe that it was agreed that I would start work as of Monday but unfortunately there are some issues regarding my contract and I am not happy to sign it and work under that basis. I am available this weekend and next week to come back to work if required but as I have stated I’m not signing any contracts based on Deepak’s and Devinder’s proposal to me, I am more than happy to arrange a meeting either in the next few days or early next week to discuss the contract and come to an agreement. Feel free to give me a buzz on my mobile or get me via email all the details are below.[10]

    [10] Exhibit A2, Folder of Discovered Documents: Email from the Applicant to Gemco Foods Pty Ltd dated 16 December 2010.

12. The ‘contract’ or ‘employment agreement’ referred to in this exchange appears to be a generic document titled Wages/Agreement Letter of Offer. It contains the following definitions of ‘full-time’ ‘part-time’ and ‘casual’ employee:

    Full-time: employees who work a normal week in accordance with the hours established with Management.

    Part-time: Employees who work less than 36 hours per week on a regular basis.

    Casual: employees who are hired for specific times or limited periods during the year, often based on work requirements.[11]

    [11] Exhibit A2, Folder of Discovered Documents: Wages/Agreement Letter of Offer, Conditions of Employment.

13. There are other conditions of employment which also appear to be inconsistent with the Award prescriptions.

14. The parties met again in early January 2011 and there was further correspondence between the Applicant’s legal representative and the Respondent’s legal representative. The Applicant was offered no further work by the Respondent.

The submissions

The Applicant’s submissions

1. The Applicant submitted that the Respondent had breached the Fair Work Act2009 (Cth) in terms of non-payment of sick leave, had breached the Modern Award with respect to the requirements for fixed rosters and breached s.343 of the Fair Work Act2009 (Cth) in relation to taking adverse action with intent to coerce the Applicant.

2. The issue in relation to the provision of a medical certificate is a dispute as to fact. For the Applicant, it is submitted that she was honest, forthright, not shaken in cross-examination and conceded what she ought to have conceded. On the other hand, Mr Deepak Gupta was evasive, avoided answering questions and contradicted himself and, on that basis, the evidence of the Applicant should be preferred.

3. Mr Deepak Gupta’s evidence about the cash in hand payments and the issuing of pay slips raises questions as to his credit. He was evasive in relation to when he obtained advice about the correct rate of pay. He ought not to be believed on any of the critical factual findings.

4. The Respondent said they lost a laptop with the time and pay records. Mr Deepak Gupta stated that they reported it to the police but no evidence was brought about that.[12] He could have called the accountants but did not do so.

   [12] Transcript of 18 October 2011, page 12 at lines 16–19.

5. The evidence from both parties was that there was never a fixed roster. Clause 12 of the Award required a written fixed roster for a permanent part-time employee. That amounts to a breach of the Award.

6. On the issue of s.343 of the Fair Work Act2009 (Cth), the Applicant submits that the Applicant raised the issue of the application of the Award in about July 2010. The evidence of both the Applicant and

   
   

   Mr Wepukhulu was that questions were raised with Mr Martin Morgan who told them he had raised the issues with management. The issue was then raised again in August 2010 by the Applicant with

   
   

   Mr Devender Gupta, the owner of the business and assurances were given. Following that meeting, Mr Deepak Gupta started to withdraw shifts from the Applicant.

7. A meeting was held on 25 October 2010 where it is clear that the Applicant wanted to work her agreed hours. The Respondent removed further shifts from her and an application was filed in Fair Work Australia. It is clear that the hours which were being removed were those that attracted penalties and/or allowances under the Award.

8. The Applicant relies on the decision in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14. In the present case, the Applicant raised concerns about not being provided with her entitlements under an applicable industrial instrument on at least three occasions. The Respondent was clearly apprised of its responsibilities under the Award. The Applicant raised the matter in Fair Work Australia; she tried to get a resolution.

9. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even when the person genuinely believes he or she was motivated by that reason. The real reason may be conscious or unconscious. Mr Gupta, certainly in the later stages, chose not to roster the Applicant. Given the attitude and the actions, the connection is clearly established. There is a reverse onus of proof.

10. The Respondent submits that they did not roster the Applicant because of an availability problem. It is clear that the Applicant filled out the diary. The other issue seems to be the shift swap issue. This occurred but the supervisor was involved. The third reason put forward by

    
    

    Mr Gupta was that he did not roster the Applicant because there was a proposed meeting. Just because a meeting is held, you do not close down a restaurant. There were ongoing discussions. The Applicant confirmed her willingness and availability to work.

11. Essentially, the Respondent stood her down. She was a permanent

    
    

    part-time employee. The Respondent should have either put her to work or paid her wages. The actions taken by the Respondent were particularly inappropriate; it was to send a message.

12. The Applicant also referred to Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064 and to Australian Licensed Aircraft Engineers Associate v Qantas Airways Ltd & Anor [2011] FMCA 58 in relation to the question of illegitimate pressure being applied. The removal of the shifts, in this case, was designed to place pressure on the Applicant to either cease pursuing her rights or cease her employment.

13. The Applicant addressed the issue of penalty and referred to Fair Work Ombudsman v Roselands Fruit Market Pty Ltd & Anor [2011] FMCA 599 and Fair Work Ombudsman v Bosen Pty Ltd & Others [2011] VMC 21.

14. The Respondent has never produced time and wages records. The Respondent was clearly on notice from 25 October 2010 of the Award obligations and sought advice from the Fair Work Ombudsman and his industry association. The Respondent did not comply with the obligations of the Award. The response was to alter the Applicant’s shift arrangements. It was deliberate and calculated.

15. Any deficiency in the evidence falls at the feet of the Respondent. There are nine breaches of the Award and one breach of the general protections. The business is a successful restaurant which employs at least eight to ten staff. Seven award breaches were conceded just before trial. A cheque was paid to the Applicant but it falls far short of the claim. The employees are young and vulnerable. They are students who rely on part-time and casual work.

16. In terms of both general and specific deterrence, an appropriate penalty ought to be in the mid to high range.

The Respondent’s submissions

1. The Respondent submitted that in relation to the admitted breaches that the effect of them was very minor; certainly at the bottom end of the scale. Mr Gupta was not experienced in running a restaurant and they relied on Mr Morgan. This is a complicated area of law for anybody, even for experienced industrial relations practitioners and all the more so for inexperienced restaurateurs.

2. There was conflicting evidence on the issue of the sick leave claim. It has not been paid because Mr Gupta could not find a doctor’s certificate. He stated however that if a statutory declaration was produced it would be paid and, to date, that has not occurred.

3. Both parties have conceded that there was no part-time roster. When Mr Gupta approached the Applicant about becoming a part-time employee, it was at her insistence that it be subject to availability. While it is almost inevitable that you make a finding that that section of the Award was breached, given the circumstances it is not one that warrants a penalty.

4. In relation to the general protections issue, the Respondent submits that while there may have been some dispute about what was said in discussions in July 2010, there is no confusion about what occurred in October 2010. Once the issue was drawn to the Respondent’s attention, the Respondent immediately agreed to look into it. On 26 October 2010, Mr Gupta set up an arrangement to go and see the Fair Work Ombudsman on 27 October 2010.

5. There was no adverse action taken prior to that. For the most part in the lead up to October, the inability for the Applicant to be provided with work for the full 20 hours a week was because of her lack of availability.

6. On 27 October 2010, while the Applicant was still being rostered for work, the Applicant took an application to Fair Work Australia. That application was premature. At the time, discussions were due to take place to resolve the issue. At this stage, it would have been easy to resolve, even if the Applicant claims (and the Respondent disputes) the amount owed to the Applicant at that stage was $5,300.00.

7. At the meeting, the Respondent submitted that he believed he was being threatened with penalties and being coerced to accede to pay well in excess of the actual monies owed.

8. On 23 November 2010, the Applicant went away. She was due back on 13 December 2010 and was sent an email by Mr Kumar asking where she was. She left it until 16 December 2010 to respond. On 15 December 2010, the proceedings in this Court were commenced.

9. The Respondent concedes that there were Award breaches, which it is contended were of a very minor nature. The steps taken by the Respondent prior to this application clearly were not of a coercive nature. There is no pattern of bad behaviour. As soon as the Respondent was notified by a lawyer of the problems, they went straight to the Fair Work Ombudsman to check out their rights and responsibilities. There is no evidence of any similar previous conduct. The size of the business is quite small.

10. The Respondent submits that there was no general protections breach. What occurred up to the point of the application did not meet the definition of coercion. The roster the Respondent tried to come up with in November was to fit in with the position of the business at the time where, because the Applicant was away, other staff members were rostered.

11. In reply, the Applicant put that there was no agreement on a roster in November 2010 because the Respondent acted unreasonably. The Applicant merely wanted a roster which reflected the arrangements during the first part of her employment. If the Respondent had to pay penalties (rates) in any event, why would they not pay them to the Applicant? They treated her differently. The Applicant referred the Court to Australian Licensed Aircraft Engineers Associate v Qantas Airways Ltd & Anor [2011] FMCA 58.

12. The Respondent cannot say they relied on someone else – Mr Morgan. It is the Respondent’s responsibility to ensure that employees are paid properly. Further if Mr Morgan was responsible, he should have been called to give evidence. The Respondent took adverse action against the Applicant by refusing to allow her to work when rights under the Award would accrue with the intent to stop her from accessing her workplace rights.

Conclusions

1. The Respondent in this matter has admitted to certain Award breaches. In January 2011, the Applicant quantified the underpayment of wages owing as $5,301.28. It is clear from the pleadings and the preliminary argument concerning the Award coverage prior to 1 January 2010 and the application of the transitional provisions of the Restaurant Industry Award 2010 [MA000119] that the amount was calculated on the basis of some misconceptions on the part of the Applicant. The Court however was not provided with the material that would enable the extent of the underpayment to be correctly assessed.

2. The Respondent, in admitting to some underpayment, calculated the amount to be $1,259.86. Again, it is not clear on what basis this amount was calculated save that the Respondent refers to:

   “applying the Australian Pay and Classification Scale up to the time the Modern Award commenced to operate and then the Modern Award to the time records provided”

   by the Applicant and also “using the classifications” claimed by the Applicant.[13]

   [13] Exhibit R1, Letter from the Respondent’s solicitors to the Applicant’s solicitors dated 28 April 2011.

3. From the information before me, I am unable to ascertain the exact amount of the underpayment. I accept however, based on my assessment of the evidence of the Applicant, whom I found to be a credible witness, and Mr Deepak Gupta, whose evidence I consider to be unreliable, that the following applied:

   (a)The applicable rate of pay for the Applicant for all hours worked from 12 February to 20 April 2010 was the Australian Pay and Classification Scale rate derived from the rate for a Grade 2 Food and Beverage Attendant under the Liquor and Accommodation Industry – Restaurants – Victoria Award 1998 [AP787213CRV] plus a loading of 20%.

   (b)The applicable rate of pay for the Applicant for the first 20 hours worked between 20 April 2010 and 1 July 2010 was the Australian Pay and Classification Scale rate derived from the rate for a Grade 2 Food and Beverage Attendant under the Liquor and Accommodation Industry – Restaurants – Victoria Award 1998 [AP787213CRV] and overtime for all hours worked in excess of 20 hours.

   (c)The applicable rate of pay for the Applicant after 1 July 2010 was the Modern Award rate for a Food and Beverage attendant Grade 2 plus the transitional rate applicable to work on a Saturday, Sunday or public holiday or for hours worked after 10.00pm, for the first 20 hours worked and overtime for hours in excess of 20.

   (d)The best evidence of the hours worked by the Applicant is her evidence.

4. The provisions of clause 12 of the Restaurant Industry Award 2010 [MA000119] applied at all times to the Applicant:

   12.    Part-time employment

   12.1An employer may employ part-time employees in any classification in this award.

   12.2  A part-time employee is an employee who:

   (a)     works less than full-time hours of 38 per week;

   (b)     has reasonably predictable hours of work; and

   (c) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

   12.3At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

   12.4Any agreed variation to the hours of work will be recorded in writing.

   12.5An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.

   12.6An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13—Casual employment.

   12.7All time worked in excess of the hours as agreed under clause 12.3 or varied under clause 12.3 will be overtime and paid for at the rates prescribed in clause 33—Overtime.

   12.8A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed in clause 20—Minimum wages, for the work performed.[14]

   [14] Restaurant Industry Award 2010 [MA000119]

1. The Respondent admits to breaching these provisions with respect, on my understanding of the admission, to clauses 12.3 and 12.4. I accept the evidence of the Applicant that the verbal agreement was that the Applicant would work for 20 hours per week and that the hours actually worked may vary depending on her study commitments. I also accept the Applicant’s evidence that she did on occasions work for hours in excess of 20 hours per week and that she was paid for those hours ‘cash in hand’, although it does not appear that this was at the overtime rate.

2. As no evidence was given for the Respondent, other than that given by Mr Deepak Gupta, it is difficult to ascertain who was actually running the business or if it was collectively run by Mr Deepak Gupta,

   
   

   Mr Devender Gupta and Mr Vinod Kumar, all of whom seemed to play some role. I do not accept, as is suggested by the email to Mr Addison from Mr Deepak Gupta of 25 October 2010, that Mr Morgan was ‘the manager’ of the business or that any decisions about the business needed to be discussed with him. I note in this regard Mr Deepak Gupta’s evidence that he was superior to Mr Morgan.[15]

   [15] Transcript of 18 October 2011, page 14 at lines 36–38.

3. It appears to me to be more than coincidental that Mr Deepak Gupta’s offer to the Applicant to make her a part-time employee seems to have coincided with his discovery that, as a casual, she was entitled to be paid considerably more than she was being paid. The reality was that in essence, so far as rostering was concerned, the Applicant continued to be treated as a casual employee with the employer essentially deciding when and if shifts were offered. Mr Deepak Gupta’s email of 25 October 2010 strongly suggests that he saw no obligation to offer a part-time employee ‘reasonably predictable hours of work’ or any particular number of hours. I refer to the following:

   Ms Dicks can call Martin for getting herself rostered, I doubt at this stage he might not be able to accommodate for this week.[16]

   [16] Exhibit A2, Folder of Discovered Documents: Email from Gupta to Maddison Associates dated 25 October 2010.

4. I also refer to Mr Deepak Gupta’s evidence that he did not roster the Applicant because he had other staff to cover her shifts.[17] It is not clear if these staff were also ‘part-time’ or ‘casual’.

   [17] Transcript of 18 October 2011, page 44 at lines 29–35.

5. The Applicant in her evidence refers to a casual employee being given work in preference to her. Mr Wepukhulu, in his evidence, stated that he was also employed as a ‘permanent part-time’ employee without set hours although he also worked 20 hours on the books and was paid cash in hand for any hours worked in excess of 20 hours. His pay slips show a reasonably consistent pattern of 20 hours per week.

6. I note further in this respect that the pay slips produced by the Respondent show no accrued annual leave which would be usual for a part-time employee.

7. I am satisfied on the evidence before me that the system put in place by the employer was designed to provide the business with the ‘flexibility’ of rostering employees based on the shifts the employer required to be filled and the availability of the employees, conditions normally associated with casual employment, without the necessity to pay the loading associated with that work. The lack of guaranteed minimum hours, a regular pattern of work and the failure to record annual leave accruals are all indicative of a disregard by the employer for the conditions applicable to part-time employment.

8. I am also satisfied that it is more probable than not that the Applicant provided the employer with a medical certificate for the day when she was unable to attend work due to ill health and that the employer failed to pay her for that day. This is both a breach of s.96 of the Fair Work Act2009 (Cth) and a failure to treat the Applicant as a part-time employee with a right to paid personal leave.

The General Protections Claim

1. The general protections claim is brought under s.343 of the Fair Work Act2009 (Cth):

   Coercion

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

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

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

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

   (2)    Subsection (1) does not apply to protected industrial action.[18]

   [18] Fair Work Act2009 (Cth), s.343

2. The Applicant says that she had a workplace right, being an entitlement to the benefit of the provisions of the relevant Award (and relevant legislative provisions). She raised the issue of the application of the Award – the Restaurant Industry Award 2010 [MA000119] – with Mr Morgan in July 2010. This evidence was supported by Mr Wepukhulu. It was the Applicant’s evidence that she was told by Mr Morgan that he would take the matter up with ‘management’. These concerns were again raised by the Applicant with Mr Devender Gupta in August 2010.

3. As neither Mr Morgan nor Mr Devender Gupta were asked by the Respondent to give evidence, I accept the Applicant’s evidence of her discussions with Mr Morgan and Mr Gupta and the evidence of what agreements were reached with Mr Devender Gupta. In particular, I accept that it was agreed that she would work reduced shifts for the following two weeks and that she would then return to working 20 hours per week.

4. It is clear from the Applicant’s evidence and her notes in the ‘Red Diary’ that she was available and willing to work. For example, on 18 and 19 September 2010 she crossed out “Ash can’t work” and wrote “yes, I can!”.[19] I am satisfied that the failure to provide her with work amounted to both an injury in her employment[20] and “altered her position to [her] prejudice”.[21]

   [19] Exhibit A3, Red Diary dated 24/06/2010 - 03/01/2011.

   [20] Applicant’s Statement of Claim filed 15 July 2011 at paragraph 55.

   [21] Fair Work Ombudsman & Australian Shooting Academy Pty Limited [2011] FCA 1064.

5. I am therefore satisfied that the Applicant was entitled to certain benefits under the Award including a regular pattern of work, specifying at least the hours worked each day, which days of the week she would work and the actual starting and finishing times each day contained in a written agreement. I am further satisfied that, while not in writing, she had an agreement to work 20 hours per week, subject only to her inability to do so due to school commitments, and that this included weekend and evening work. This agreement was reflected in her pattern of work up until her meeting with Mr Devender Gupta in late August 2010.

6. I am further satisfied that the failure to roster her on a regular basis after that meeting amounted to adverse action against her.

7. While I accept the evidence, as disclosed from the ‘Red Diary’ that the Applicant’s availability to work was variable during August 2010, September 2010 and October 2010, there appears no reason why she could not have been rostered for 20 hours per week during this period if the employer had chosen to do so. I found Mr Deepak Gupta’s reasons for failing to do so to be most unconvincing.

8. Mr Deepak Gupta’s reasons for failing to roster the Applicant for 20 hours per week after her meeting with Mr Devender Gupta appear to be the following:

   a)There was no commitment to roster the Applicant for 20 hours per week.

   I accept the Applicant’s evidence concerning this both in relation to her initial discussion with Mr Deepak Gupta and her meeting with Mr Devender Gupta.

   b)The only thing Mr Deepak Gupta knew that was discussed at the meeting between the Applicant and Mr Devender Gupta was that he should arrange for coffee training for the staff.

   This appears to be inconsistent with his other evidence that he discussed the issue of a pay increase for the Applicant with
   Mr Devender Gupta who said it would take time but he would fix things up.[22]

   [22] Transcript of 18 October 2011, page 7 at lines 46–47 to page 8 at lines 1–6.

   c)The Applicant had limited availability because she was also working at Gloria Jeans. He needed availability to roster her.

   The Applicant’s evidence was that she had to seek another job because Mr Deepak Gupta told her work was not available. The work at Gloria Jeans was approved by Mr Morgan. She offered to be put on regular shifts so that she would ensure that no clash could occur with shifts at Gloria Jeans. From the diary entries (both the Applicant’s and the ‘Red Diary’), the Applicant was available and could have been rostered for 20 hours per week. When questioned about this Mr Deepak Gupta replied:

   When she’s available I can’t put other staff because when she is not available I need to those staff to work those shifts.[23]

   and further:

   I need to get everyone’s availability and that is how it works.  Before, also, if she used to write she is available it’s not necessary she used to work on that particular day.[24]

   d)Mr Deepak Gupta said that he could not recall the Applicant coming to him and saying to restore 20 hours before 25 October 2010. She was happy with the hours she was working. After 25 October 2010, when the meeting happened, then they took up the position of 20 hours per week.[25]

   I do not accept this evidence by Mr Deepak Gupta. The Applicant clearly was not happy with her hours between late August and
   

   [23] Transcript of 18 October 2011, page 25 at lines 46–47.

   [24] Transcript of 18 October 2011, page 26 at lines 10–13.

   [25] Transcript of 18 October 2011, page 26 at lines 20–23.

   25 October 2010. Apart from her oral evidence concerning the agreement made when she became part-time, the pay slips prior to the end of August 2010 show a consistent pattern (with a few exceptions) of the Applicant working 20 hours per week and, on her evidence, hours in excess of 20 on many occasions.

9. Following the meeting on 25 October 2010, the Applicant worked two shifts where she was rostered to work for four hours. According to her evidence, she was sent home at 10.00pm after four hours of work, although normally she would have worked until close.
   Mr Deepak Gupta agreed that the Applicant would normally have been rostered to work on the weekend. She was not rostered to do so on the weekend after the meeting on 25 October 2010. Mr Gupta’s only response was that he did not do that roster.

10. On 27 October 2010, Mr Gupta spoke to the Fair Work Ombudsman’s office and the Applicant lodged a dispute with Fair Work Australia.

11. Following a conference with Fair Work Australia, there was a further meeting on 18 November 2010 where the Applicant was presented with a proposed roster for a 20-hour working week. It contained no weekend work or work after 10.00pm. When asked why the proposed roster contained no weekend shifts, Mr Deepak Gupta stated:

    [b]ecause at that time I had other staff working at those shifts.[26]

    It was not clarified if these employees were ‘part-time’ or ‘casual’.

    [26] Transcript of 18 October 2011, page 37 at lines 45–46.

12. When asked why the Applicant was not offered work after taking proceedings in Fair Work Australia, Mr Deepak Gupta said:

    We wanted to get things right before starting on a new note.  That’s what we have been saying.[27]

    and that:

    I didn’t say no to roster her.  It was only that we should clarify the things before we go ahead at work.[28]

    [27] Transcript of 18 October 2011, page 41 at lines 1–2.

    [28] Transcript of 18 October 2011, page 41 at lines 26–27.

13. When asked if he had made a unilateral decision to stand the Applicant down Mr Deepak Gupta said:

    I didn’t make any decision.[29]

    [29] Transcript of 18 October 2011, page 41at line 39.

14. I am satisfied on the evidence before me that following the period in late August 2010 when the Applicant did not work for one week and then worked only reduced hours on the following week, there was no action taken by Mr Deepak Gupta to return her to her previous working arrangements. There was no evidence given by Mr Devender Gupta of the conversation he had with Mr Deepak Gupta following his meeting with the Applicant at that time.

15. As I do not accept Mr Deepak Gupta’s reasons for failing to roster the Applicant for 20 hours per week after late August 2010, he has not established to my satisfaction that his reasons were unrelated to the fact that she had raised issues with the employer about her conditions of employment, and the failure by the employer to afford her the benefits of the relevant Award.

16. If this application merely asserted a breach of s.340 of the Fair Work Act2009 (Cth), I am satisfied that that would be enough to establish the breach. The Applicant alleges however that the action taken by the employer was done with the intent to coerce her to not exercise her workplace rights.

17. The meaning of coercion in the context of s.343 of the Fair Work Act 2009 (Cth) was discussed by Raphael FM in Australian Licensed Aircraft Engineers Associate v Qantas Airways Ltd & Anor [2011] FMCA 58. I refer in particular to paragraphs 48 to 51 of that decision:

    48. In a recent decision of Logan J in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited (supra), his Honour noted the lack of any prior authority directly concerned with the construction of s.343 or its predecessor, s.400 of the repealed WRA. However, the meaning of coercion was considered by Gyles J in Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1468; (2000) 106 FCR 16(“Finance Sector Union”) in relation to s.170NC of the WRA. In that case the Court considered whether the commencement of the proceedings for interpretation of an award was done with intent to coerce the bank to concede to the Union’s claims in contemporaneous enterprise bargaining. Gyles J relied on Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202; (2000) 170 ALR 42 which concerned the meaning of duress which his Honour considered to be equivalent to coercion:

    "18. The distinction between the pressure applied to an actor which constitutes duress both in its ordinary English meaning and its connotation in the general law, and the consequences as a matter of law which may attend the application of that pressure, was recognised, we consider, by Lord Scarman in Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 400 where his Lordship said:

    It is, I think, already established law that economic pressure can in law amount to duress; and that duress, if proved, not only renders voidable a transaction into which a person has entered under its compulsion but is actionable as a tort, if it causes damage or loss:Barton v Armstrong [1976] AC 104 and Pao On v Lau Yiu Long[1979] UKPC 2; [1980] AC 614. The authorities upon which these two cases were based reveal two elements in the wrong of duress: (1) pressure amounting to compulsion of the will of the victim; and (2) the illegitimacy of the pressure exerted. There must be pressure, the practical effect of which is compulsion or the absence of choice. Compulsion is variously described in the authorities as coercion or the vitiation of consent. The classic case of duress is, however, not the lack of will to submit but the victim's intentional submission arising from the realisation that there is no other practical choice open to him. This is the thread of principle which links the early law of duress (threat to life or limb) with later developments when the law came also to recognise as duress first the threat to property and now the threat to a man's business or trade.”

    Gyles J distinguished coercion from other concepts including influence, persuasion and inducement [20].

    49. That decision was cited with approval by Weinberg J in National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 where, after considering the authorities, his Honour concluded at [103]:

    I am fortified to some degree in my view that this is the correct meaning to ascribe to the expression "intent to coerce" by the observations of Lord Romilly MR in Ellis v Barker (1871) 40 LJ Ch 603. His Lordship accepted that coercion may take an infinite number of forms. However, he noted that the moment that a person who influences another does so by threatening to take away something he then possesses, or by preventing him from obtaining an advantage he would otherwise have obtained, it then becomes coercion and ceases to be persuasion.”

    In that case, Weinberg J considered that the offer of additional funding to institutions of higher education by the Commonwealth made conditional upon meeting programme criteria was not intended to coerce institutions into entering certified agreements on particular terms. Similarly, in Finance Sector UnionGyles J was not persuaded that the Union in that case had commenced proceedings with the intent to coerce the Commonwealth Bank to do something against its will. His Honour took into account the individual characteristics of each party in drawing that inference, noting the union representatives were experienced and not likely to make the mistake of believing that the Bank, one of Australia’s largest corporations, could be easily coerced.

    50. In Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456, a decision involving the threat to commence industrial action, Merkel J found that the threats had been made with an intent to coerce the employer to enter into a local, rather than a national, enterprise agreement in contravention of s.170NC(1) of the WRA. In that case, the Union had threatened disruption to the Seven Networks coverage of the AFL finals and the Olympic Games, a time which was considered the most important period for live coverage by Seven Network in the history of its business.

    51. The second limb of the test considered in Finance Sector Union requires that the means of coercion are unlawful or otherwise illegitimate [40]. Gyles J did not have to make a finding on this point, though his Honour considered that it would be unlikely that the decision to exercise the statutory jurisdiction of the Court to settle a live and genuine dispute could be regarded as illegitimate. In Seven Network (Operations) Ltd (supra) Merkel J observed at 388:

    "The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] VicRp 36; [1991] 1 VR 637.

    The requirement of unlawfulness etc might, in a sense, be said to have been superimposed upon the ordinary meaning of "coercion": cf Hanleyat 534 [11]. However, without such a requirement s 170NC(1) could have an anomalous operation in so far as it might prevent the legitimate exercise of rights by employees or employers. In Hanley the Full Court did not really consider this issue. In all the circumstances I consider that it is appropriate to apply the approach taken to s 170NC(1) in Cadbury Schweppes, Finance Sector Union and Qenos unless I am satisfied that that approach is clearly wrong, which I am not.”

    In that case, the Union claimed that the threatened industrial action was protected action under the Act. However, his Honour found that the union representatives knew that the threatened action may not be protected action but refrained from making any proper enquiry about the matter. In this way, the action of the Union was found to be unlawful.[30]

    [30] Australian Licensed Aircraft Engineers Associate v Qantas Airways Ltd & Anor [2011] FMCA 58 at paragraphs 48–51.

18. If an intention to coerce is alleged, s.361 of the Fair Work Act2009 (Cth) establishes a rebuttable presumption that the Respondent acted with the requisite intention to coerce.[31]

    [31] Barclay v Board of Bendigo Regional Institute of Technology & Further Education (2010) 193 IR 251 per Tracey J at [30].

1. Prior to the 25 October 2010 meeting, the Applicant alleges that a document, which she described as a ‘contract’ and Mr Deepak Gupta referred to as a ‘policy’, was presented to employees who were asked to sign it. The Applicant says she sent a text message to Mr Deepak Gupta seeking a meeting with him because none of the issues she had previously raised had been addressed. At that meeting, she raised the failure to receive annual leave, sick leave or regular shifts. According to the Applicant, Mr Deepak Gupta told her she could either continue on the arrangement she was on or receive a casual loading and receive shifts when he felt like calling her.

2. Mr Deepak Gupta refers to this meeting in his evidence.

   
   

   Mr Deepak Gupta says he told her that annual leave and sick leave were being accrued. He had discussed the pay increase with

   
   

   Mr Devender Gupta and that it would take some time but he would get everything fixed up. He makes no reference to the issue of her ‘current arrangement’ or being paid as a casual employee with no rostered hours.

3. I am satisfied that the failure to provide the Applicant with 20 hours work between late August 2010 and 25 October 2010 was deliberate on Mr Deepak Gupta’s part. Further, the intention was, at least in part, to apply pressure on the Applicant to either abandon her claim to receive the benefits of the Award or to leave the Respondent’s employment. Further, the pressure was not legitimate because it involved a breach of the provisions of clause 12–Part-time employment, of the Award.

4. After the meeting on 25 October 2010, the employer could have had no doubt that the Applicant would continue to pursue her claims in so far as they related to her Award entitlements. The failure to provide her with shifts after that date (apart from the period where she was on leave which had previously been agreed) was put by the Respondent in terms of wishing to “get things right” before starting on a new role.[32] The obligation to comply with the Award was however an ongoing one. The fact that the Applicant had taken her dispute to the arena of Fair Work Australia did not justify or legitimise the failure to provide her with work. She was effectively stood down without pay.

   [32] Transcript of 18 October 2011, page 41 at line 1.

5. The Respondent suggests that this was done with the intention of sorting out contractual terms before the Applicant returned to work. It could however also be seen as attempting to coerce the Applicant into abandoning her claims and her employment with the Respondent. The ‘offer’ of a roster which contained no weekend work, in that context, appears to indicate an attempt to ‘resolve the dispute’ while making an offer which the employer knew the Applicant could not accept.

6. The Applicant states that following her absence from work on leave from late November until mid-December 2010, she received an email from Mr Vinod Kumar asking about her availability to which she responded:

   I am back, I didn’t get back until late last night. I believe that it was agreed that I would start work as of Monday but unfortunately there are some issues regarding my contract and I am not happy to sign it and work under that basis. I am available this weekend and next week to come back to work if required but as I have stated I’m not signing any contracts based on Deepak’s and Devinder’s proposal to me, I am more than happy to arrange a meeting either in the next few days or early next week to discuss the contract and come to an agreement. Feel free to give me a buzz on my mobile or get me via email all the details are below.[33]

   [33] Exhibit A2, Folder of Discovered Documents: Email from the Applicant to Gemco Foods Pty Ltd dated 16 December 2010.

7. She stated that she met with Mr Vinod Kumar on 23 December 2010 at which time she was asked by Mr Kumar to leave. She refused and was not scheduled for any further shifts. Mr Kumar told her to call

   
   

   Mr Deepak Gupta about shifts. She stated that she called Mr Deepak Gupta a number of times and left messages but he did not respond to her messages.[34] Mr Kumar was not called to give evidence.

   [34] Exhibit A1, Chronology, page 3.

8. It would appear that by 7 January 2011 the Applicant considered the employment to have come to an end.

9. I am satisfied that the conduct of the employer in failing to provide the Applicant with work was deliberately engaged in with the intention of coercing her to abandon her employment with the Respondent and her claim to the benefits of the Award.

Findings

1. The Respondent breached s.182 of the Workplace Relations Act 1996 (Cth) as it continued to apply by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), by failing to pay the Applicant the basic period rate of pay for the work performed by her on 12 February 2010.

2. The Respondent breached s.185 of the Workplace Relations Act 1996 (Cth) as it continued to apply by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), by failing to pay the Applicant a casual loading on the following dates:

   ·16 February 2010;

   ·20 February 2010;

   ·23 February 2010;

   ·24 February 2010;

   ·25 February 2010;

   ·1 March 2010;

   ·2 March 2010;

   ·5 March 2010;

   ·9 March 2010;

   ·10 March 2010;

   ·12 March 2010;

   ·13 March 2010;

   ·17 March 2010;

   ·19 March 2010;

   ·21 March 2010;

   ·26 March 2010;

   ·27 March 2010;

   ·28 March 2010;

   ·2 April 2010;

   ·3 April 2010;

   ·4 April 2010;

   ·6 April 2010;

   ·8 April 2010;

   ·9 April 2010; and

   ·10 April 2010.

3. The Respondent breached s.182 of the Workplace Relations Act 1996 (Cth) as it continued to apply by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), by failing to pay the Applicant the basic period rate of pay applicable being the rate for a Grade 2 Food and Beverage Attendant under the Liquor and Accommodation - Restaurants – Victoria Award 1998 [AP787213CRV] on the dates specified in paragraph (108) above and also on the following dates:

   ·21 April 2010;

   ·24 April 2010;

   ·27 April 2010;

   ·30 April 2010;

   ·1 May 2010;

   ·6 May 2010;

   ·7 May 2010;

   ·8 May 2010;

   ·9 May 2010;

   ·11 May 2010;

   ·13 May 2010;

   ·15 May 2010;

   ·19 May 2010;

   ·21 May 2010;

   ·24 May 2010;

   ·26 May 2010;

   ·30 May 2010;

   ·31 May 2010;

   ·2 June 2010;

   ·3 June 2010;

   ·4 June 2010;

   ·5 June 2010;

   ·6 June 2010;

   ·10 June 2010;

   ·11 June 2010;

   ·12 June 2010;

   ·13 June 2010;

   ·15 June 2010;

   ·18 June 2010;

   ·19 June 2010;

   ·20 June 2010;

   ·25 June 2010; and

   ·26 June 2010.

4. The Respondent breached s.45 of the Fair Work Act 2009 (Cth) by failing to apply the provisions of clause 20.1 of the Restaurant Industry Award 2010 [MA000119], by failing to pay the Applicant the applicable minimum hourly rate for a Food and Beverage Attendant Grade 2 on each of the following dates:

   ·2 July 2010;

   ·3 July 2010;

   ·6 July 2010;

   ·8 July 2010;

   ·9 July 2010;

   ·10 July 2010;

   ·11 July 2010;

   ·15 July 2010;

   ·16 July 2010;

   ·17 July 2010;

   ·18 July 2010;

   ·19 July 2010;

   ·20 July 2010;

   ·21 July 2010;

   ·23 July 2010;

   ·25 July 2010;

   ·27 July 2010;

   ·28 July 2010;

   ·2 August 2010;

   ·4 August 2010;

   ·6 August 2010;

   ·7 August 2010;

   ·9 August 2010;

   ·10 August 2010;

   ·14 August 2010;

   ·15 August 2010;

   ·17 August 2010;

   ·21 August 2010;

   ·30 August 2010;

   ·3 September 2010;

   ·11 September 2010;

   ·13 September 2010;

   ·14 September 2010;

   ·25 September 2010;

   ·27 September 2010;

   ·3 October 2010;

   ·7 October 2010;

   ·8 October 2010;

   ·14 October 2010;

   ·15 October 2010;

   ·16 October 2010; and

   ·18 October 2010.

5. The Respondent breached clause 12.3 of the Restaurant Industry Award 2010 [MA000119] by failing, at the time of the Applicant’s engagement as a part-time employee, to agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

6. The Respondent breached clause 12.4 of the Restaurant Industry Award 2010 [MA000119] by failing to record any variation to the hours of work in writing.

7. The Respondent breached clause 12.7 of the Restaurant Industry Award 2010 [MA000119] in the following weeks, by failing to pay all time worked in excess of the hours agreed at the rates prescribed in clause 33–Overtime:

   ·8 – 14 March 2010;

   ·15 – 21 March 2010;

   ·29 March – 4 April 2010;

   ·5 – 11 April 2010;

   ·3 – 9 May 2010;

   ·31 May – 6 June 2010;

   ·7 June – 13 June 2010;

   ·5 July – 11 July 2010; and

   ·9 August – 15 August 2010.

8. The Respondent breached s.45 of the Fair Work Act 2009 (Cth) by failing to apply clause 24.1 of the Restaurant Industry Award 2010 [MA000119] (as varied by Schedule A – Transitional Provisions) by failing to pay the Applicant the applicable percentage of the minimum wage for the relevant classification for work performed on a Saturday, Sunday or Public Holiday on the following dates:

   ·3 July 2010;

   ·10 July 2010;

   ·11 July 2010;

   ·17 July 2010;

   ·18 July 2010;

   ·25 July 2010;

   ·7 August 2010;

   ·14 August 2010;

   ·15 August 2010;

   ·21 August 2010;

   ·11 September 2010;

   ·25 September 2010;

   ·3 October 2010;

   ·16 October 2010; and

   ·23 October 2010.

9. The Respondent breached s.45 of the Fair Work Act 2009 (Cth) by failing to apply clause 34.2 of the Restaurant Industry Award 2010 [MA000119] (as varied by Schedule A-Transitional Provisions) by failing to pay the Applicant the applicable percentage of the standard hourly rate per hour on the following dates:

   ·2 July 2010;

   ·9 July 2010;

   ·16 July 2010;

   ·27 July 2010;

   ·28 July 2010;

   ·6 August 2010;

   ·30 August 2010;

   ·3 September 2010;

   ·13 September 2010;

   ·14 September 2010;

   ·7 October 2010;

   ·8 October 2010;

   ·18 October 2010;

   ·26 October 2010;

   ·29 October 2010; and

   ·8 November 2010.

10. The Respondent breached s.44 of the Fair Work Act 2009 (Cth) by failing to pay the Applicant her base rate of pay for the ordinary hours of work when she took a period of paid personal/carers leave on

    
    

    28 May 2010, in accordance with s.99 of the Fair Work Act2009 (Cth).

11. The Respondent took action against the Applicant with intent to coerce her not to exercise a workplace right in contravention of s.343(1) of the Fair Work Act 2009 (Cth).

Penalty

1. The first step for the Court in determining penalty is to identify the separate contraventions involved. Each breach of each separate obligation under the Workplace Relations Act 1996 (Cth), the Fair Work Act 2009 (Cth) and the Modern Award is a separate contravention.

2. The Court needs to consider whether the breaches constitute a single course of conduct (s.557(1) of the Fair Work Act 2009 (Cth)).

3. It is appropriate for that purpose to group those breaches in the following way:

   (a)The breaches of the Australian Pay and Classification Scale prior to 1 July 2010 with respect to the payment of the basic period rate and casual loading;

   (b)The breaches of the Restaurant Industry Award 2010 [MA000119] with respect to the failure to apply clause 12 of the Award;

   (c)The breaches of the Restaurant Industry Award 2010 [MA000119] with respect to the failure to apply clause 20.1 of the Award and clause 34 of the Award after 1 July 2010;

   (d)The failure to apply s.99 of the Fair Work Act 2009 (Cth) with respect to personal leave; and

   (e)The contravention of s.343(1) of the Fair Work Act2009 (Cth).

4. To the extent that two or more contraventions have common elements, this should be taken into account in considering what is an appropriate penalty in all the circumstances of each contravention. The Respondent should not be penalised more than once for the same conduct.

5. The Court needs to consider the appropriate penalty for each group of contraventions taking into account all of the relevant circumstances. The Court then needs to consider the aggregate penalty, to determine if it is an appropriate response to the conduct which led to the breaches.[35]

   [35] Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080.

6. I am satisfied that there are five courses of conduct in this case.

   ·The first consist of the failure to pay the appropriate rate of pay between February 2010 and 1 July 2010.

   ·The second is the failure to comply with the provisions of the Restaurant Industry Award 2010 [MA000119] as they applied from 1 January 2010.

   ·The third is the failure to pay the appropriate rate of pay under the provisions of the Restaurant Industry Award 2010 [MA000119] as they applied from 1 July 2010.

   ·The fourth is the failure to comply with the National Employment Standards with respect to personal leave.

   ·The fifth is the failure to provide the Applicant with work after she raised her complaints firstly with the employer and then with Fair Work Australia, with intent to cause her to abandon her claims.

7. A non-exhaustive list of factors potentially relevant to the imposition of a penalty under the Workplace Relations Act 1996 (Cth) was summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at paragraphs [26]–[59]. They remain relevant to proceedings under the Fair Work Act 2009 (Cth). They are as follows:

   a)the nature and extent of the conduct which led to the breaches;

   b)the circumstances in which that conduct took place;

   c)the nature and extent of any loss or damage sustained as a result of the breaches;

   d)whether there had been similar previous conduct by the Respondent;

   e)whether the breaches were properly distinct or arose out of the one course of conduct;

   f)the size of the business enterprise involved;

   g)whether or not the breaches were deliberate;

   h)whether senior management was involved in the breaches;

   i)whether the party committing the breach had exhibited contrition;

   j)whether the party committing the breach had taken corrective action;

   k)whether the party committing the breach had cooperated with the enforcement authorities;

   l)the need to ensure compliance with minimum standards by provisions of an effective means for investigation and enforcement of employee entitlements; and

   m)the need for specific and general deterrence.

a)               The nature and extent of the conduct which led to the breaches

1. The conduct consisted of the systematic underpayment of a young employee over a period of some nine months, the failure to apply the relevant Award provisions and the taking of action against the employee after she raised the issue of award entitlements. While evidence was before the Court with respect to the Applicant only, it is reasonable to assume that she was not the only employee who was underpaid.

b)         The circumstances in which that conduct took place

1. The circumstances under which the conduct occurred include the involvement of the Respondent in a ‘new’ business about which evidence was given that Mr Deepak Gupta, who appeared to have the most day-to-day involvement, was not familiar. The circumstances also include the fact that at the relevant time there was a transition occurring between the relevant industrial instruments, which provided minimal regulation to the Modern Award. While these circumstances provide some mitigation for the Respondent, it is clear that in

   
   

   April 2010 Mr Deepak Gupta made some inquiries about relevant wages but did not seek any further advice until after the meeting on

   
   

   25 October 2010 with the Applicant and her solicitor, despite the issue being raise by the Applicant as early as July.

c)           The nature and extent of any loss or damage sustained as a result of the breaches

1. The Applicant sustained loss which is not clearly quantified due to the underpayment of wages and also the reduction in shifts offered to her. From the week beginning 13 September 2010 and excluding the weeks she was on leave, the Applicant was not offered 20 hours work in any week and after 20 December 2010 she was offered no shifts at all.

d)              Whether there had been similar previous conduct by the Respondent

1. There was no evidence of any previous similar conduct by the Respondent.

e)               Whether the breaches were properly distinct or arose out of the one course of conduct

1. As previously indentified, the breaches can properly be grouped according to the nature of the breaches.

f)           The size of the business enterprise involved.

1. The business Groove Train Melbourne Central is a restaurant with a reasonably small number of staff. During the time the Applicant was employed, the Respondent purchased another ‘Groove Train’ restaurant.

g)          Whether or not the breaches were deliberate

1. The Respondent clearly made a deliberate decision to offer staff part-time employment. It is also clear that the Applicant was not treated as a part-time employee in terms of her conditions of employment until she raised the issue of those conditions with her employer. I am satisfied that the Respondent made a deliberate decision to offer the Applicant less work and then no work after she raised complaints firstly with the Respondent and then with Fair Work Australia.

h)          Whether senior management was involved in the breaches

1. It would appear that both Mr Deepak Gupta and Mr Devender Gupta were involved in the breaches. Mr Deepak Gupta was the manager of the business and his father Mr Devender Gupta was a director of the Respondent.

1. Whether the party committing the breach had exhibited contrition

1. There was no evidence before the Court of any contrition on the part of the Respondent.

j)               Whether the party committing the breach had taken corrective action

1. An offer was made in April 2011 to make a payment with respect to the underpayment of wages as calculated by the Respondent.

k)              Whether the party committing the breach had cooperated with the enforcement authorities

1. Mr Deepak Gupta had sought advice from the Fair Work Ombudsman on 27 October 2010.

l)           The need to ensure compliance with minimum standards by provisions of an effective means for investigation and enforcement of employee entitlements

1. There is a need recognised in other decisions of this Court and the Federal Court[36] to ensure that employers meet their obligations under the Fair Work Act 2009 (Cth). One of the principal objects of the

   
   Fair Work Act

   2009 (Cth) is ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders. The importance of this object is reflected in the maximum penalties available to the Court with respect to any breach of the provisions of the Fair Work Act 2009 (Cth) and the Award.

   [36] See Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064; Fair Work Ombudsman v Roselands Fruit Market Pty Ltd [2010] FMCA 959.

m)         The need for specific and general deterrence

1. In determining an appropriate penalty, the Court needs to take into account that the penalty should be of a kind that would be likely to act as a deterrent in preventing similar contraventions by other employers. The Respondent operates businesses in the hospitality industry. The industry is characterised by the employment of young people, often students, who work on a casual or part-time basis. Frequently they receive the minimum award rate only. It is not an industry where there is extensive enterprise bargaining. It is generally regarded as low paid.

2. There is also a need, in my view, in this case for a specific deterrence. The Respondent continues to operate this restaurant and another similar one. Before opening the business, the Respondent did not see the necessity of being familiar with the relevant award and statutory requirements and only took the matter seriously when a solicitor became involved. The Applicant was fortunate enough to have a step-father who was a lawyer and who was prepared to assist her in preparing her claims. Without legal action, I have no doubt that the Respondent would have continued to ignore its obligations.

3. Even after seeking advice and participating in proceedings at Fair Work Australia, the Respondent failed to meet those obligations.

4. The maximum penalty for each of the contraventions is $33,000.00. The Applicant has argued for a penalty in the mid to high range. The Respondent argues that the effect of the award breaches was very minor and was due to the inexperience of the Respondent. Any penalty should therefore be at the bottom end of the scale.

5. There are 11 breaches, which I have characterised as falling into five groups, taking into account all of the material before me. I am satisfied that an appropriate penalty in this case of the first four groups is 30% of the maximum. The contravention of s.343(1) of the Fair Work Act 2009 (Cth) in my view is a more serious breach and 40% of the maximum penalty is therefore appropriate. The total penalty on that basis would be $52,800.00.

6. Having fixed an appropriate penalty for each group of contraventions, the Court needs to look at the aggregate penalty to determine if it is an appropriate response to the conduct and it not oppressive or crushing.[37]

   [37] Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080.

7. The Court has little information about the state of the business or the impact of such a penalty on the employer. The totality of the underpayment to the Applicant falls somewhere between $1,259.86 and $5,301.28. Rather than require the parties to calculate the amount, given the paucity of the records involved, I have determined that a substantial amount of the penalty should be paid to the Applicant.

8. The circumstances call for the imposition of a meaningful penalty but one which is not oppressive. I have therefore determined that the total amount payable should be an amount of $30,000.00, with $20,000.00 to be paid to the Applicant directly and the remainder (being $10,000.00) to be paid to the Commonwealth.

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  26 March 2012