Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7)
[2013] FCCA 1097
•20 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v LINKHILL PTY LTD (No.7) | [2013] FCCA 1097 |
| Catchwords: INDUSTRIAL LAW – Sham contracting – application for declarations, penalties and orders for payment of monies – whether contracts with workers were contracts of employment or contracts for services – whether representation that contracts of employment were contracts for services – defence – whether respondent did not know or was reckless – whether there were underpayments – application of and classification under relevant industrial instrument/s. |
| Legislation: Workplace Relations Act 1996 (Cth), ss.727, 900(1), (2), (3) |
| The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1) [2013] FMCA 163 Fair Work Ombudsman v Maclean Bay Pty Ltd [2012] FCA 10 MacMahon Mining Services Pty Ltd v Williams (2010) 201 IR 123 MacMahon Mining Services Pty Ltd v Williams [2010] FCA 1321 Williams v MacMahon Mining Services Pty Ltd [2009] FMCA 511 |
| Applicant: | THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| Respondent: | LINKHILL PTY LTD |
| File Number: | MLG 1514 of 2011 |
| Judgment of: | Judge O’Sullivan |
| Hearing dates: | 25, 26, 27, 28 February, 12, 13 March, 13, 14 May, 17 June & 9 October 2013 |
| Date of Last Submission: | 9 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Moore |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Ms S. Bingham |
| Solicitors for the Respondent: | At Work Law |
ORDERS
The applicant is to bring in minutes of orders to give effect to these reasons for decision within 28 days.
The remainder of the proceedings be adjourned to a date to be fixed in February 2014 to program the further conduct of the proceedings in relation to the penalty if any that should be imposed on the respondent for breaches of the WR Act, the FW Act and the industrial instruments referred to in the accompanying reasons for decision.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1514 of 2011
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| LINKHILL PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The Director of Fair Work Building Industry Inspectorate (“the applicant”) commenced these proceedings in October 2011.
The applicant alleged inter alia that Linkhill Pty Ltd (“the respondent”) had engaged in sham contracting in contravention of s.900 of the Workplace Relations Act 1996(Cth) (“the WR Act”) and s.357 of the Fair Work Act 2009 (Cth) (“the FW Act”).
This case concerns a dispute over inter alia whether industrial legislation applies to a group of workers and, if so, the consequences of that. Given the position of the parties, the following observation seems apposite:
“It does not matter for current purposes whether the trend to self-employment was the consequence of employers seeking to escape obligations imposed by the law in relation to the employment of employees, or whether the trend was the result of genuine decisions made by individuals to provide their labour as self-employed persons. The fact is that the trend became the subject of industrial concern which was ultimately, to some extent, reflected in industrial laws.”[1]
[1] Bromberg J in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No.2) [2013] FCA 446 at para 101
The applicant sought civil penalties for the alleged contraventions and orders that respondent pay unpaid wages, allowances, leave, redundancy/severance pay and superannuation. The applicant alleged the underpayments were due to 10 workers engaged by the respondent (“the workers”).
The allegations made by the applicant against the respondent arise from the engagement by the respondent of 10 workers over different periods between 2007 to 2010.
It was not in dispute that the workers engaged by the respondent and the claim/s made in relation to them cover the following period/s:
Name
Relevant period of claim
Mr Stephen Etheredge
12 February 2009 – 15 July 2010
Mr Paul Gillen
5 April 2007 – 21 August 2008
Mr Joel Elliott
12 February 2009 – 15 July 2010
Mr Nathan Lovell
12 July 2007 – 29 July 2010
Mr Matthew Walker
7 January 2010 – 15 July 2010
Mr Alex Najdoski
29 May 2008 – 15 July 2010
Mr Robert Hunter
15 July 2007 – 1 April 2010
Mr Cyrille Darrigrand
5 July 2007 – 12 August 2010
Mr Ryan Lowery
5 April 2007 – 15 July 2010
Mr Julio Cabrera
18 March 2010 – 28 July 2010
Background
The applicant is a Fair Work Building Industry Inspector under the Fair Work (Building Industry) Act 2012. This legislation replaced the Building and Construction Industry Improvement Act 2005 (Cth) (“the Act”) under which these proceedings had been initiated, by the commencement of Schedule 1 to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth) on 1 June 2012.
Notwithstanding the replacement of the Act the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Regulations 2012 (Cth) (“the Regulations”) which commenced operation on 1 June 2012 provide that the applicant is able to continue these proceedings for a civil penalty. The applicant’s standing to bring and continue these proceedings was not controversial.
The respondent is a body corporate under the Corporations Act 2001 (Cth), capable of being sued in its own name, manages the buildings used by the Roy Morgan Group. This group (the Roy Morgan Group) comprised a number of companies including Elazac Pty Ltd, the Roy Morgan Research Centre Pty Ltd, Roy Morgan Research Limited and the respondent.
Mr Gary Morgan is and has been a director of the respondent.
The corporate entities referred to above had the same registered address, principal place of business and largely identical office holders.As well as managing buildings used by the Roy Morgan Group, the respondent also operated a restaurant, art gallery and rented space to Roy Morgan Research, amongst other tenants.
History of the proceedings
Procedural history
On 20 October 2011 the applicant filed an application and statement of claim. The respondent filed its defence on 20 December 2011.
On 5 June 2012 interlocutory orders were made including that:
a)the matter be fixed for trial for five days on 25 February 2013; and
b)any affidavits upon which either party proposed to rely be filed and served pursuant to a timetable fixed in the orders.
There was an amended defence filed in June 2012 and the applicant filed and served ten affidavits in September and October 2012.
On 6 December 2012 the Court made further interlocutory orders by consent, including that:
a)the applicant have leave to file an amended application and statement of claim;
b)the respondent file any further amended defence by 21 December 2012; and
c)the respondent file and serve any affidavits upon which it proposed to rely by 4 February 2013.
On 6 February 2013 the respondent filed one affidavit as the evidence upon which it proposed to rely, sworn by its director, Mr Gary Morgan, on 5 February 2013.
The trial was listed to commence in the week beginning 25 February 2013. The procedural background since then is otherwise set out in a number of decisions of the Court reported as The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1) [2013] FMCA 163; The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.2) [2013] FMCA 164; The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA 165; The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.4) [2013] FMCA 182, The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.5) [2013] FCCA 476 and The Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.6) [2013] FCCA 477.
At the close of the witness evidence on 17 June 2013 the Court made the orders for the applicant to file written submissions by 29 July 2013, the respondent to do the same by 9 September 2013, the applicant to reply by 30 September 2013 and the proceedings were adjourned to
9 October 2013.
As they had been throughout the trial on 9 October 2013 the applicant was represented by Mr Moore of Counsel and the respondent by
Ms Bingham of Counsel. The parties each had an opportunity to address issues arising from the written submissions that had been filed and upon which they relied. At the end of that hearing the Court reserved its decision.
In order to do justice to the written submissions filed by the parties, and as they helpfully set out the issues and the position of the parties or otherwise where indicated accurately summarised the evidence it will be necessary to refer to the submissions filed by the parties in detail later in these reasons. In these reasons a statement of fact is unless otherwise indicated a finding of fact. In coming to those findings I have been mindful of the nature of the allegations in these proceedings and the burden of proof.[2]
[2] see paras 14-16 of respondents submissions and para 4.5 of applicant’s submissions in reply
The pleadings
In its amended statement of claim filed 11 December 2012 the applicant alleged inter alia that:[3]
[3] see exhibit A2 – Summary of Key Facts Admitted on Pleadings
“The Respondent
1.The Respondent (“The respondent”):
(a)is a body corporate under the Corporations Act 2001 (Cth);[4]
[4] Amended Statement of Claim filed 11 December 2012 (“SOC”) para 2(a); Further Amended Defence filed 21 December 2012 (“Def”) para 2(a).
(b)is capable of being sued in its corporate name;[5] and
[5] SOC para 2(b); Def para 2(b).
(c)at all relevant times operated a business from premises at 401 Collins Street, Melbourne, Victoria, which included, from about November 2006, the renovation and refurbishment of the building at 384-386 Flinders Lane, Melbourne, Victoria (“Renovation Works).[6]
[6] SOC para 2(g); Def para 2(d).
The Workers2.Linkhill Pty Ltd was a party to a contract with each of the following persons:
(a)Alex Najdoski (“Najdoski”) from 29 May
52008 until 15 July 2010;[7][7] SOC para 2(k)(i); Def para 2(f).
(b)Matthew Walker (“Walker”) from 7 January 2010 until 15 July 2010;[8]
[8] SOC para 2(k)(iv); Def para 2(f).
(c)Stephen Etheredge (“Etheredge”) from 12 February 2009 until 15 July 2010;[9]
[9] SOC para 2(k)(v); Def para 2(f).
(d)Joel Elliot (“Elliot”) from 12 February 2009 until
15 July 2010;[10]
[10] SOC para 2(k)(vi); Def para 2(f).
(e)Ryan Lowery (“Lowery”) from 5 April 2007 until
15 July 2010;[11]
[11] SOC para 2(k)(vii); Def para 2(f).
(f)Paul Gillen (“Gillen”) from 5 April 2007 until
21 August 2008;[12] and
[12] SOC para 2(k)(ix); Def para 2(f).
(g)Cyrille Darrigrand (“Darrigrand”) from 5 July 2007 until 9 August 2010.[13]
[13] SOC para 2(k)(x); Def para 2(f).
3.The 10 individuals in relation to whom the proceeding is brought (the Workers) were engaged by Linkhill Pty Ltd to perform, and did perform, the Renovation Works at 384-386 Flinders Lane, Melbourne in the State of Victoria.[14]
[14] Def para 3(a).
4.The work performed by the Workers was building work within the meaning of s 5(1) of the BCII Act.[15]
[15] Def para 3(b).
5.Each of the Workers was at all relevant times a building industry participant for the purposes of s.4 of the BCII Act.[16]
[16] SOC para 3(d); Def para 3(d).
Najdoski6.In about May 2008, Linkhill Pty Ltd and Najdoski entered into a contract which provided that Linkhill Pty Ltd would pay Najdoski an hourly rate of $22.00 for work performed (the Najdoski Contract).[17]
[17] SOC para 13; Def para 13.
7.During the period of the Najdoski Contract, the hourly rate was increased to $24.00 per hour and subsequently was further increased to $25.00 per hour.[18]
[18] SOC para 15; Def para 15.
8.On or about 15 July 2010, the Najdoski Contract was terminated by agreement and the parties entered into a contract of employment.[19]
[19] SOC para 16; Def para 16.
9.During the period of the Najdoski Contract, Najdoski completed timesheets showing the hours during which he performed work. [20]
[20] SOC para 17; Def para 17.
10.Linkhill Pty Ltd did not:[21]
[21] SOC para 23; Def para 23.
(a)make superannuation contributions to the relevant superannuation fund on Najdoski’s behalf;
(b)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Najdoski for Linkhill Pty Ltd in that four week period;
(c)credit Najdoski on a monthly basis the amount of annual leave accrued by him;
(d)pay Najdoski annual leave loading;
(e)accrue an amount of paid personal/carer's leave for each four week period of continuous service of 1/26th of the number of normal hours worked by Najdoski for Linkhill Pty Ltd in that four week period;
(f)credit Najdoski on a monthly basis the amount of paid personal/carer's leave accrued by him;
(g)pay Najdoski wages and allowances in accordance with the relevant clauses of the 2000 Award identified in paragraphs 7(b)(i) and (ii) of the SOC.
Cabrera
11.Linkhill Pty Ltd and Cabrera entered into a contract which provided that Linkhill Pty Ltd would pay Cabrera an hourly rate of $25.00 for work performed.[22]
[22] SOC para 31; Def para 31.
12.Cabrera completed timesheets showing the hours during which he performed work.[23]
[23] Def para 34.
13.Linkhill Pty Ltd did not:
(a)make superannuation contributions to the relevant superannuation fund on Cabrera’s behalf;
(b)provide Cabrera with annual leave paid at the rate prescribed by the 2010 Award;
(c)provide Cabrera with an entitlement to annual leave loading at the rate prescribed by the 2010 Award;
(d)keep a record of Cabrera’s accrued leave entitlements
.;(e)pay Cabrera wages and allowances in accordance with the relevant clauses of the 2010 Award identified in paragraphs 11(f)(i) and (ii) of the SOC;
(f)pay Cabrera redundancy/severance pay at the rate prescribed by the 2010 Award.
Lovell
14.Linkhill Pty Ltd and Lovell entered into a contract which provided that Linkhill Pty Ltd would pay Lovell an hourly rate of $22.00 for work performed.[24]
[24] SOC para 44; Def para 44.
15.The hourly rate Linkhill Pty Ltd paid Lovell was varied from time to time and on 29 July 2010, Lovell's hourly rate was $28.00.[25]
[25] SOC para 46; Def para 46.
16.Lovell completed timesheets showing the hours during which he performed work.[26]
[26] Def para 48.
17.Prior to 2010 Linkhill Pty Ltd did not:[27]
[27] SOC para 54; Def para 54.
(a)make superannuation contributions to the relevant superannuation fund on Lovell's behalf;
(b)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Lovell for Linkhill Pty Ltd in that four week period;
(c)credit Lovell on a monthly basis the amount of annual leave accrued by him;
(d)pay Lovell annual leave loading;
(e)pay Lovell wages and allowances in accordance with the clauses of the 2000 Award identified in paragraphs 7(b)(i) and (ii) of the SOC.
18.After 31 December 2009 Linkhill Pty Ltd did not:[28]
[28] SOC para 58; Def para 58.
(a)make superannuation contributions to the relevant superannuation fund on Lovell’s behalf;
(b)provide Lovell with paid annual leave at the rate prescribed by the 2010 Award;
(c)provide Lovell with an entitlement to annual leave loading at the rate prescribed by the 2010 Award;
(d)keep a record of Lovell’s accrued leave entitlements;
(e)pay Lovell wages and allowances in accordance with the relevant clauses of the 2010 Award identified in paragraphs 11(f)(i) and (ii) of the SOC;
(f)pay Lovell redundancy/severance pay at the rate prescribed by the 2010 Award.
Walker
19.Linkhill Pty Ltd and Walker entered into a contract which provided that Linkhill Pty Ltd would pay Walker an hourly rate of $25 for work performed.[29]
[29] SOC para 62; Def para 62.
20.Walker completed timesheets showing the hours during which he performed work.[30]
[30] Def para 65.
21.Linkhill Pty Ltd did not:[31]
[31] SOC para 71; Def para 71.
(a)make superannuation contributions to the relevant superannuation fund on Walker’s behalf;
(b)provide Walker with annual leave paid at the rate prescribed by the 2010 Award;
(c)provide Walker with an entitlement to annual leave loading at the rate prescribed by the 2010 Award;
(d)keep a record of Walker’s accrued leave entitlements;
.(e)pay Walker wages and allowances in accordance with the relevant clauses of the 2010 Award identified in paragraphs 11(f)(i) and (ii) of the SOC;
(f)pay Walker redundancy/severance pay at the rate prescribed by the 2010 Award.
22.On or about 15 July 2010, the contract between Linkhill Pty Ltd and Walker was terminated by agreement and the parties entered into a contract of employment.[32]
[32] SOC para 64; Def para 64.
Etheredge
23.Linkhill Pty Ltd and Etheredge entered into a contract which provided that Linkhill Pty Ltd would pay Etheredge an hourly rate of $25.00 for work performed.[33]
[33] SOC para 75; Def para 75.
24.Etheredge completed timesheets showing the hours during which he performed work.[34]
[34] Def para 78.
25.Prior to 2010 Linkhill Pty Ltd did not:[35]
[35] SOC para 84; Def para 84.
(a)make superannuation contributions to the relevant superannuation fund on Etheredge’s behalf;
(b)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Etheredge for Linkhill Pty Ltd in that four week period;
(c)credit Etheredge on a monthly basis the amount of annual leave accrued by him;
(d)pay Etheredge annual leave loading;
(e)pay Etheredge wages and allowances in accordance with the relevant clauses of the 2000 Award identified in paragraphs 7(b)(i) and (ii) of the SOC.
26. After 31 December 2009 Linkhill Pty Ltd did not:[36]
[36] SOC para 88; Def para 88.
(a)make superannuation contributions to the relevant superannuation fund on Etheredge’s behalf;
(b)provide Etheredge with paid annual leave at the rate prescribed by the 2010 Award;
(c)provide Etheredge with an entitlement to annual leave loading at the rate prescribed by the 2010 Award;
(d)keep a record of Etheredge’s accrued leave entitlements;
(e)pay Etheredge wages and allowances in accordance with the relevant clauses of the 2010 Award identified in paragraphs 11(f)(i) and (ii) of the SOC;
(f)pay Etheredge redundancy/severance pay at the rate prescribed by the 2010 Award.
27.On or about 15 July 2010, the contract between Linkhill Pty Ltd and Etheredge was terminated by agreement and the parties entered into a contract of employment.[37]
[37] SOC para 77; Def para 77.
Elliot
28.Linkhill Pty Ltd and Elliot entered into a contract which provided that Linkhill Pty Ltd would pay Elliot an hourly rate of $23.00 for work performed.[38]
[38] SOC para 92; Def para 92.
29.During the period of the contract, the hourly rate was varied from time to time and Elliot's hourly rate on 15 July 2010 was $27.00.[39]
[39] SOC para 94; Def para 94.
30.Elliot completed timesheets showing the hours during which he performed work.[40]
[40] Def para 96.
31.Prior to 2010 Linkhill Pty Ltd did not:[41]
[41] SOC para 102; Def para 102.
(a)make superannuation contributions to the relevant superannuation fund on Elliot’s behalf;
(b)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Elliot for Linkhill Pty Ltd in that four week period;
(c)credit Elliot on a monthly basis the amount of annual leave accrued by him;
(d)pay Elliot annual leave loading;
(e)pay Elliot wages and allowances in accordance with the relevant clauses of the 2000 Award identified in paragraphs 7(b)(i) and (ii) of the SOC.
32. After 31 December 2009 Linkhill Pty Ltd did not:[42]
[42] SOC para 106; Def para 106.
(a)make superannuation contributions to the relevant superannuation fund on Elliot’s behalf;
(b)provide Elliot with annual leave paid at the rate prescribed by the 2010 Award;
(c)provide Elliot with an entitlement to annual leave loading at the rate prescribed by the 2010 Award;
(d)keep a record of Elliot’s accrued annual leave entitlements;
(e)pay Elliot wages and allowances in accordance with relevant clauses of the 2010 Award identified in paragraphs 11(f)(i) and (ii) of the SOC;
(f)pay Elliot redundancy/severance pay at the rate prescribed by clause 17 of the 2010 Award.
33.On or about 15 July 2010, the contract was terminated by agreement and the parties entered into a contract of employment for casual employment.[43]
[43] SOC para 95; Def para 95.
Lowery
34.Elazac Pty Ltd ACN 006 681 018 (“Elazac”) and Lowery entered into a contract on about 16 March 2006.[44]
[44] SOC para 110; Def para 110.
35.In or about July 2007, Lowery was engaged by the Respondent pursuant to a contract to perform building work for the Respondent which provided that Linkhill Pty Ltd was to pay Lowery at an hourly rate for the work performed.[45]
[45] Def para 112.
36.During the period of the contract, the hourly rate was varied from time to time and Lowery's hourly rate as at
15 July 2010 was $35.00.[46]
[46] SOC para 113; Def para 113.
37.Lowery completed timesheets showing the hours during which he performed work.[47]
[47] Def para 115.
38.Between April 2007 and January 2008 Linkhill Pty Ltd did not:[48]
[48] SOC para 119B; Def para 119B.
(a)make superannuation contributions to the relevant superannuation fund on Lowery's behalf;
(b)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Lowery for Linkhill Pty Ltd that four week period;
(c)credit Lowery on a monthly basis the amount of annual leave accrued by him;
(d)pay Lowery annual leave loading;
(e)accrue an amount of paid personal/carer's leave for each four week period of continuous service of 1/26th of the number of normal hours worked by Lowery for Linkhill Pty Ltd in that four week period;
(f)credit Lowery on a monthly basis the amount of paid personal/carer's leave accrued by him;
(g)pay Lowery wages and allowances in accordance with the relevant clauses of the 2000 Award identified in paragraphs 7(b)(i) and (ii) of the SOC.
39.Between January 2008 and 31 December 2009 Linkhill Pty Ltd did not:[49]
[49] SOC para 121; Def para 121.
(a)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Lowery for Linkhill Pty Ltd in that four week period;
(b)credit Lowery on a monthly basis the amount of annual leave accrued by him;
(c)accrue an amount of paid personal/carer's leave for each four week period of continuous service of 1/26th of the number of normal hours worked by Lowery for Linkhill Pty Ltd in that four week period;
(d)credit Lowery on a monthly basis the amount of paid personal/carer's leave accrued by him.
40. After 31 December 2009 Linkhill Pty Ltd did not:[50]
[50] SOC para 124; Def para 124.
(a)provide Lowery with paid annual leave at the rate prescribed by the FW Act;
(b)provide Lowery with personal/carer's leave paid at the rate prescribed by s.99 of the FW Act;
(c)keep a record of Lowery’s accrued leave entitlements.
41.On or about 15 July 2010, the Lowery Contract was terminated by agreement and the parties entered into a contract of employment.[51]
[51] SOC para 114; Def para 114.
Hunter
42.Elazac and Hunter entered into a contract on about 13 April 2006.[52]
[52] SOC para 128; Def para 128.
43.In or about July 2007, Hunter was engaged by the Respondent pursuant to a contract to perform building work for the Respondent which provided that Linkhill Pty Ltd was to pay Hunter at an hourly rate for the work performed.[53]
[53] Def para 130.
44.During the period of the contract, the hourly rate was varied from time to time and Hunter's hourly rate as at 1 April 2010, was $35.00.[54]
[54] SOC para 131; Def para 131
45.Hunter completed timesheets showing the hours during which he performed work.[55]
[55] Def para 133.
46.Prior to 2010 Linkhill Pty Ltd did not:[56]
[56] SOC para 139; Def para 139.
(a)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Hunter for Linkhill Pty Ltd in that four week period;
(b)credit Hunter on a monthly basis the amount of annual leave accrued by him;
(c)pay Hunter annual leave loading.
47. After 31 December 2009 Linkhill Pty Ltd did not:[57]
[57] SOC para 142; Def para 142.
(a)provide Hunter with annual leave paid at the rate prescribed by the Manufacturing Award;
(b)keep a record of Hunter’s accrued leave entitlements;
(c)provide Hunter with an entitlement to annual leave loading at the rate prescribed by the Manufacturing Award.
Gillen
48.Elazac and Gillen entered into a contract on about
25 February 2003.[58]
[58] SOC para 146; Def para 146.
49.Elazac and Gillen entered into a further contract on about
1 August 2004.[59]
[59] SOC para 147; Def para 147.
50.The contract was terminated on or about 21 August 2008.[60]
[60] SOC para 151; Def para 151.
51.In or about July 2007, Gillen was engaged by the Respondent pursuant to a contract to perform building work for the Respondent which provided that Linkhill Pty Ltd was to pay Gillen at an hourly rate for the work performed.[61]
[61] Def para 149.
52.During the period of the contract, the hourly rate was varied from time to time and Gillen's hourly rate as at
21 August 2008, was $30.00.[62]
[62] SOC para 150; Def para 150.
53.Gillen completed timesheets showing the hours during which he performed work.[63]
[63] Def para 152.
54.Linkhill Pty Ltd did not:[64]
[64] SOC para 158; Def para 158.
(a)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Gillen for Linkhill Pty Ltd in that four week period;
(b)credit Gillen on a monthly basis the amount of annual leave accrued by him;
(c)pay Gillen annual leave loading;
(d)pay Gillen wages and allowances in accordance with the relevant clauses of the 2000 Award identified in paragraphs 7(b)(i) and (ii) of the SOC;
(e)make superannuation contributions to the relevant superannuation fund on Gillen's behalf;
(f)pay Gillen redundancy/severance pay at the rate prescribed by clause 16 of the 2000 Award.
55.The contract was terminated on or about 21 August 2008.[65]
[65] SOC para 151; Def para 151.
Darrigrand
56.Elazac and Darrigrand entered into a contract on about
25 February 2003.[66]
[66] SOC para 161; Def para 161.
57.Elazac and Darrigrand entered into a further contract on about 1 August 2004.[67]
[67] SOC para 162; Def para 162.
58.In or about July 2007, Darrigrand was engaged by the Respondent pursuant to a contract to perform building work for the Respondent which provided that Linkhill Pty Ltd was to pay Darrigrand at an hourly rate for the work performed.[68]
[68] SOC para 164; Def para 164.
59.During the period of the contract, the hourly rate was varied from time to time and Darrigrand's hourly rate as at 14 July 2010, was $30.00.[69]
[69] SOC para 165; Def para 165.
60.Darrigrand ceased employment with Linkhill Pty Ltd on or about October 2010.[70]
[70] SOC para 166A; Def para 166A.
61.Darrigrand completed timesheets showing the hours during which he performed work.[71]
[71] Def para 167.
62.Prior to 2010 Linkhill Pty Ltd did not:[72]
[72] SOC para 173; Def para 173.
(a)accrue an amount of paid annual leave for each four week period of continuous service of 1/13th of the number of normal hours worked by Darrigrand for Linkhill Pty Ltd in that four week period;
(b)credit Darrigrand on a monthly basis the amount of annual leave accrued by him.
63. After 31 December 2009 Linkhill Pty Ltd did not:[73]
(a)provide Darrigrand with paid annual leave at the rate prescribed by the FW Act;
(b)keep a record of Darrigrand’s accrued annual leave entitlements.
64.In or about July-August 2010, the contract was terminated by agreement and Linkhill Pty Ltd and Darrigrand entered into a contract of employment.[74]”
[73] SOC para 176; Def para 176.
[74] SOC para 166; Def para 166.
The respondent joined issue with the applicant on the allegations made in the amended statement of claim. However in the (further) amended defence filed on 21 December 2012, the respondent admitted:
a)in paragraph 2(g) – that at all relevant times it operated a business from its premises at 401 Collins Street, Melbourne, which included, from November 2006, the renovations and refurbishment of a property at 346-348 Flinders Lane, Melbourne (“the Flinders Lane property”), defined as “the Renovation Works”;
b)in paragraph 3(a) – that the workers were engaged by it to perform, and did perform, the Renovation Works at the Flinders Lane property; and
c)in paragraph 3(b) – that the work performed by the workers was “building work” with the meaning of s.5(1) of the Act.
The respondent (as noted in written submission filed after the evidence had closed) took the position that:
“4. The Respondent’s primary position is that:
(a)the relevant individuals providing services to the Respondent were, in fact and law, engaged under contracts for services as independent contractors; and
(b)that the Respondent did not make any representation to the relevant individuals in contravention of s 357(1) of the FW Act or s 900(1) of the WR Act;
(c)Even if any of the relevant individuals were engaged under a contract of employment and the Respondent made representations that they were engaged under a contract for services, the Respondent did not know that, and was not reckless as to whether, the contract was a contract of employment.
5.Should the Court make a finding that any of the individuals were engaged on a contract of employment the Respondent’s position is:
(a)the awards identified by the Applicant as applicable to each individual do not apply to all the work performed
(b)where the awards do apply to work performed those individuals who are found to be employees by the Court were engaged in fact and in law as casual employees.”
The nature of the allegations against the respondent was set out in the amended statement of claim.[75] In summary, the applicant alleged the respondent contravened not only s.900 of the WR Act and s.357 of the FW Act but also various award and statutory minima. The respondent’s case was contained in the (further) amended defence filed on
21 December 2012.
[75] A further amended statement of claim was filed without objection on 26 February 2013 as the only changes from the amended statement of claim were to accurately reflect changes to transitional legislation and changed statutory title holders.
Relief claimed
In the amended application accompanying the amended statement of claim the following orders were sought:
“In respect of Najdoski
1.A declaration that the Respondent contravened s.900 of the Workplace Relations Act 1996 (Cth) ("WR Act"), further or alternatively s.357 of the FW Act, by reason of the conduct alleged at paragraphs 17 to 19 of the Statement of Claim.
2.The imposition of penalties in respect of each contravention of s.900 of the WR Act pursuant to s.904 of the WR Act
3.The imposition of penalties in respect of each contravention of an applicable provision under s.718 of the WR Act pursuant to s.719 of the WR Act.
4.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
5.An order pursuant to s.719(6) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay Najdoski the amount of:
(a) $4,847.25 in respect of annual leave;
(b) $609.39 in respect of annual leave loading;
(c) $9,042.80 in respect of wages and allowances.
5AIn the alternative to paragraphs 5(a) and (b) above, a declaration that the respondent credit Najdoski's annual leave account 164.75 hours in respect of annual leave and annual leave loading accruals.
5BA declaration that the respondent credit Nadjoski's personal leave account 82.26 hours in respect of personal leave accruals.
6.An order pursuant to s.719(7) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay the sum of $6,760.68
5,975.93to a relevant superannuation fund on Najdoski’s behalf.7.An order pursuant to s.722 of the WR Act, further or alternatively s.547 of the FW Act, requiring the respondent to pay Najdoski interest on the amounts of any payments it is required to make to Najdoski.
In respect of Cabrera
8.A declaration that the Respondent contravened s.357 of the FW Act, by reason of the conduct alleged at paragraphs 31, 32 and 34 to 36 of the Statement of Claim.
9.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
10.An order pursuant to
alternativelys.545 of the FW Act, that the respondent pay Cabrera thetheamount of:(a) $703.36
1,030.25in respect of annual leave;(b) $138.93
126.56in respect of annual leave loading;.(c) $1,309.11 in respect of wages and allowances;
(d) $421.77 in respect of redundancy/severance pay.
11.An order pursuant to s.545 of the FW Act, that the respondent pay the sum of $1,453.17
1,271.92to a relevant superannuation fund on Cabrera’s behalf.12.An order pursuant to s.547 of the FW Act, requiring the respondent to pay Cabrera interest on the amounts of any payments it is required to make to Cabrera.
In respect of Lovell
13.A declaration that the Respondent contravened s.900 of the WR Act, further or alternatively s.357 of the FW Act, by reason of the conduct alleged at paragraphs 48 to 50 of the Statement of Claim.
14.The imposition of penalties in respect of each contravention of s.900 of the WR Act pursuant to s.904 of the WR Act
15.The imposition of penalties in respect of each contravention of an applicable provision under s.718 of the WR Act pursuant to s.719 of the WR Act.
16.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
17.An order pursuant to s.719(6) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay Lovell the amount of:
(a)$23,606.97
10,917.88in respect of wages and allowances;(b)$7,919.34
8,541.24in respect of annual leave;(c)$1,540.03
1,033,69in respect of annual leave loading;(d)$4,740.57 in respect of redundancy/severance pay.
18.An order pursuant to s.719(7) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay the sum of $1,517.41 15,554.09 to a relevant superannuation fund on Lovell’s behalf.
19.An order pursuant to s.722 of the WR Act, further or alternatively s.547 of the FW Act, requiring the respondent to pay Lovell interest on the amounts of any payments it is required to make to Lovell.
In respect of Walker
20.A declaration that the Respondent contravened s.357 of the FW Act, by reason of the conduct alleged at paragraphs 62, 63, and 65 to 67 of the Statement of Claim.
21.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
22.An order pursuant to s.545 of the FW Act, that the respondent pay Walker the amount of:
(a) $1,211.51
1,550.00in respect of annual leave;(b) $238.36
191.77in respect of annual leave loading;(c) $2,305.26 in respect of wages and allowances;
(d) $701.52 in respect of redundancy/severance pay.
23.An order pursuant to s.545 of the FW Act, that the respondent pay the sum of $2,449.31
1,987.78to a relevant superannuation fund on Walker’s behalf.24.An order pursuant to s.547 of the FW Act, requiring the respondent to pay Walker interest on the amounts of any payments it is required to make to Walker.
In respect of Etheredge
25.A declaration that the Respondent contravened s.900 of the WR Act, further or alternatively s.357 of the FW Act, by reason of the conduct alleged at paragraphs 78 to 80 of the Statement of Claim.
26.The imposition of penalties in respect of each contravention of s.900 of the WR Act pursuant to s.904 of the WR Act
27.The imposition of penalties in respect of each contravention of an applicable provision under s.718 of the WR Act pursuant to s.719 of the WR Act.
28.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
29.An order pursuant to s.719(6) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay Etheredge the amount of:
(a) $3,803.97
4,909.50in respect of annual leave;(b) $739.73
633.37in respect of annual leave loading.(c) $9,824.90 in respect of wages and allowances;
(d) $2,279.37 in respect of redundancy/severance pay.
30.An order pursuant to s.719(7) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay the sum of $7,455.03
6,514.47to a relevant superannuation fund on Etheredge’s behalf.31.An order pursuant to s.722 of the WR Act, further or alternatively s.547 of the FW Act, requiring the respondent to pay Etheredge interest on the amounts of any payments it is required to make to Etheredge.
In respect of Elliot
32.A declaration that the Respondent contravened s.900 of the WR Act, further or alternatively s.357 of the FW Act, by reason of the conduct alleged at paragraphs 96 to 98 of the Statement of Claim.
33.The imposition of penalties in respect of each contravention of s.900 of the WR Act pursuant to s.904 of the WR Act
34.The imposition of penalties in respect of each contravention of an applicable provision under s.718 of the WR Act pursuant to s.719 of the WR Act.
35.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
36.An order pursuant to s.719(6) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay Elliot the amount of:
(a) $3,257.99
5,037.39in respect of annual leave;(b) $640.40
610.22in respect of annual leave loading;.(c) $5,969.73 in respect of wages and allowances;
(d) $1,952.14 in respect of redundancy/severance pay.
37.An order pursuant to s.719(7) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay the sum of $6,803.69 5,980.61to a relevant superannuation fund on Elliot’s behalf.
38.An order pursuant to s.722 of the WR Act, further or alternatively s.547 of the FW Act, requiring the respondent to pay Elliot interest on the amounts of any payments it is required to make to Elliot.
In respect of Lowery
39.A declaration that the Respondent contravened s.900 of the WR Act, further or alternatively s.357 of the FW Act, by reason of the conduct alleged at paragraphs 115 to 117 of the Statement of Claim.
40.The imposition of penalties in respect of each contravention of s.900 of the WR Act pursuant to s.904 of the WR Act
41.The imposition of penalties in respect of each contravention of an applicable provision under s.718 of the WR Act pursuant to s.719 of the WR Act.
42.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
43.An order pursuant to s.719(6) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay Lowery the amount of: $14,743.40 in respect of annual leave.
(a) $15,826.53 in respect of annual leave;
(b) $364.74 in respect of annual leave loading;
(c) $3,222.85 in respect of wages and allowances.
43A.In the alternative to paragraphs 43(a) and (b) above, a declaration that the respondent credit Lowery's annual leave account 452.19 hours in respect of annual leave and annual leave loading accruals.
43B.A declaration that the respondent credit Lowery's personal leave account 255.82 hours in respect of personal leave accruals.
43C.An order pursuant to s.719(7) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay the sum of $5,786.02 to a relevant superannuation fund on Lowery’s behalf.
44.An order pursuant to s.722 of the WR Act, further or alternatively s.547 of the FW Act, requiring the respondent to pay Lowery interest on the amounts of any payments it is required to make to Lowery.
In respect of Hunter
45.A declaration that the Respondent contravened s.900 of the WR Act, further or alternatively s.357 of the FW Act, by reason of the conduct alleged at paragraphs 133 to 135 of the Statement of Claim.
46.The imposition of penalties in respect of each contravention of s.900 of the WR Act pursuant to s.904 of the WR Act
47.The imposition of penalties in respect of each contravention of an applicable provision under s.718 of the WR Act pursuant to s.719 of the WR Act.
48.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
49.An order pursuant to s.719(6) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay Hunter the amount of $6,946.79
20,473.60in respect of annual leave and $1,215.69 in respect of annual leave loading.50.An order pursuant to s.722 of the WR Act, further or alternatively s.547 of the FW Act, requiring the respondent to pay Hunter interest on the amounts of any payments it is required to make to Hunter.
In respect of Gillen
51.A declaration that the Respondent contravened s.900 of the WR Act, further or alternatively s.357 of the FW Act, by reason of the conduct alleged at paragraphs 152 to 154 of the Statement of Claim.
52.The imposition of penalties in respect of each contravention of s.900 of the WR Act pursuant to s.904 of the WR Act
53.The imposition of penalties in respect of each contravention of an applicable provision under s.718 of the WR Act pursuant to s.719 of the WR Act.
54.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
55.An order pursuant to s.719(6) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay Gillen the amount of:
(a) $2,839.35
4,845.00in respect of annual leave;(b) $563.07 in respect of annual leave loading;
(c) $6,015.07 in respect of wages and allowances;
(d) $1,699.98 in respect of redundancy/severance pay.
55A. An order pursuant to s.719(7) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay the sum of $7,641.45 to a relevant superannuation fund on Gillen's behalf.
56.An order pursuant to s.722 of the WR Act, further or alternatively s.547 of the FW Act, requiring the respondent to pay Gillen interest on the amounts of any payments it is required to make to Gillen.
In respect of Darrigrand
57.A declaration that the Respondent contravened s.900 of the WR Act, further or alternatively s.357 of the FW Act, by reason of the conduct alleged at paragraphs 167 to 169 of the Statement of Claim.
58.The imposition of penalties in respect of each contravention of s.900 of the WR Act pursuant to s.904 of the WR Act
59.The imposition of penalties in respect of each contravention of an applicable provision under s.718 of the WR Act pursuant to s.719 of the WR Act.
60.The imposition of penalties in respect of each contravention of the FW Act pursuant to s.546 of the FW Act.
61.An order pursuant to s.719(6) of the WR Act, further or alternatively s.545 of the FW Act, that the respondent pay Darrigrand the amount of $12,576.69
14,066.40in respect of annual leave.62.An order pursuant to s.722 of the WR Act, further or alternatively s.547 of the FW Act, requiring the respondent to pay Darrigrand interest on the amounts of any payments it is required to make to Darrigrand.
Other orders
63.An order that any penalties be paid to the Commonwealth pursuant to s.841(a) of the WR Act, further or alternatively, s.546(3)(a) of the FW Act.
64.Any further orders that the Court considers appropriate.”
The respondent opposed the orders sought by the applicant.
The issues
The applicant alleges inter alia that the respondent engaged the workers as employees under contracts of service and that the respondent represented to those workers that they were independent contractors. The respondent denies this.
The parties agreed that before the Court could consider whether there had been a breach of the relevant statutory provisions for the above purposes the Court should first determine whether each of the workers were engaged under a contract of employment or a contract for services (the “first issue”).
As noted above the applicant alleged that the respondent engaged the workers under contracts of service and the respondent represented to those workers they were independent contractors, which the respondent denies. The next issue is then whether the respondent made any representation to the workers in contravention of the relevant statutory provisions at the time (the “second issue”).
It is agreed that if the Court finds the workers were engaged under a contract of service (or contract of employment) and it is found the respondent made representations that they were engaged under a contract for service (or as an independent contractor), the Court must consider the respondent’s pleaded defence, that it did not know that and was not reckless, as to whether the contract was a contract of employment (the “third issue”).
Next and subject to the disposition of the first issue, it is also necessary to determine:
a)whether the applicable industrial instruments (or awards) identified by the applicant as governing the employment of the workers applied to all the work performed; and
b)whether the workers were engaged in fact and in law as casual employees; and
c)which classification of the applicable industrial instruments applied to each of the workers; and
d)as a result of the above the amount of any underpayments to the workers (the “fourth issue”).
The parties agreed that subject to the resolution of the above issues. the issue as to penalty for any breaches of the WR Act or FW Act found should be determined at a later date.
The evidence
The applicant filed over 10 folders of affidavit material and court books. The oral evidence was heard over 5 days.[76]
The applicant tendered over 30 exhibits. Each of the workers referred to earlier gave evidence and was cross examined as was the respondent’s only witness, Mr Morgan. There were very detailed written submissions filed by both parties which were of enormous assistance to the Court.
[76] There were a number of interlocutory applications along with an appeal (which was unsuccessful) see Linkhill v Director of Fair Work Building Industry Inspectorate [2013] FCA 389
In these reasons and notwithstanding their length it will not be possible to recite all of the evidence that was presented at the hearing. However all of that evidence and the submissions made by the parties has been considered and taken into account.
The applicant’s witnesses
I now turn to the evidence of each of the workers before the Court.
Evidence of Mr Stephen Etheredge
Mr Etheredge adopted his affidavits, gave evidence and was cross examined. His evidence was that the period to which the claim made was from 12 February 2009 to 15 July 2010.
Prior to working for the respondent, Mr Etheredge had worked in various jobs in the building industry.[77] He is a qualified carpenter.[78]
[77] Etheredge - T52.30-34 (26 February 2013).
[78] Etheredge - Exhibit A3, para 4 [CB 1468].
In the period of his contract with the respondent, Mr Etheredge's work included rendering, brickwork, carpentry, plastering, demolition work and "whatever else was needed".[79]
[79] Etheredge - T61.8-9 (26 February 2013).
Before commencing work with the respondent, Mr Etheredge was told by Mr Lowery that he would need to get an ABN if he was to get the job.[80] Mr Etheredge already had an ABN from previous work but obtained a new ABN when he started work with the respondent.[81]
Mr Etheredge was also told by Mr Lowery that he did not need to provide any of his own tools or gear;[82] that there was an hourly rate and no penalty rates;[83] that he was expected to work a 40 hour week; that he was required to start at 7am and finish at 3.30pm;[84] that he would report to him;[85] and that he would get a break at 10am for a smoko and 1pm for lunch.[86] Shortly after commencing, Mr Lowery had told Mr Etheredge he would have to give notice before taking holidays.[87]
[80] Etheredge - Exhibit A3, para 9 [CB 1468] and T53.1-2 (26 February 2013).
[81] Etheredge - T57.26-40 (26 February 2013).
[82] Etheredge - Exhibit A3, para 9 [CB 1468].
[83] Lowery - Exhibit A32, para 36 [CB 193].
[84] Etheredge - T53.6-7 (26 February 2013).
[85] Etheredge - T53.7-8 (26 February 2013).
[86] Etheredge - T53.6-7 (26 February 2013).
[87] Etheredge - T55.13-14 (26 February 2013).
Mr Etheredge did not work for anyone else while he was working at the respondent.[88]
[88] Etheredge - Exhibit A3, para 12 [CB 1469].
When working at the Flinders Lane site, most of the tools and materials with which Mr Etheredge worked were supplied by the respondent.[89] The tools Mr Etheredge used included trowels, angle grinders and hammers.[90] Mr Etheredge sometimes brought his own tools if the ones the respondent supplied were not the right ones.[91] The respondent also provided all the safety gear.[92] If Mr Etheredge needed additional tools or materials, he notified Mr Lowery and Mr Lowery would buy them.[93] If Mr Etheredge bought additional materials he paid for it on the respondent's account.[94] Mr Etheredge used the respondent's company van to obtain the materials.[95]
[89] Etheredge - Exhibit A3, para 16 [CB 1470].
[90] Etheredge - T54.43-44 (26 February 2013).
[91] Etheredge - T63.16-19 (26 February 2013).
[92] Etheredge - Exhibit A3, para 22 [CB 1470].
[93] Etheredge - T54.45-48 (26 February 2013).
[94] Etheredge - Exhibit A3, para 18 [CB 1470].
[95] Etheredge - T55.1-2 (26 February 2013).
On most days Mr Lowery told Mr Etheredge the specific work he was to do that day.[96] Mr Etheredge reported to Mr Lowery and Mr Lowery supervised his work.[97] Mr Lowery was sometimes critical of Mr Etheredge's work and occasionally asked him to do something again, which Mr Etheredge did and got paid for doing.[98] Mr Lowery threatened to dismiss Mr Etheredge on numerous occasions and at times told Mr Etheredge that he was issuing him with a warning.[99] Mr Morgan also directed Mr Etheredge and he worked at Mr Morgan's house on occasions.[100] Mr Etheredge was paid the same rate of pay, regardless of the specific work he did and was paid the same rate for work that he performed at Mr Morgan's house, as he did at the Flinders Lane site.[101]
[96] Etheredge - T53.30-40 (26 February 2013).
[97] Etheredge - T53.30-40 (26 February 2013).
[98] Etheredge - T53.30-40 (26 February 2013).
[99] Etheredge - T55.18-20 (26 February 2013).
[100] Etheredge - T54.2-3 (26 February 2013).
[101] Etheredge - T53.30-40 (26 February 2013) and T54.26 (26 February 2013).
Mr Etheredge went to Queensland for a holiday in February 2010.[102] Mr Etheredge gave Mr Lowery approximately one month's notice prior to going to Queensland.[103]
[102] Etheredge - T55.10-12 (26 February 2013).
[103] Etheredge - T55.11 (26 February 2013).
Each Wednesday, Mr Etheredge completed an invoice which recorded the hours he had worked that week and the particular work he had done.[104] Mr Darrigrand or Mr Lowery supplied Mr Etheredge with the invoices.[105] Mr Lowery told Mr Etheredge to use specified descriptions to describe various jobs in accordance with a document placed on the wall in the lunchroom.[106] Mr Lowery would change the invoices that Mr Etheredge submitted if he did not agree with it or thought Mr Etheredge’s description was incorrect.[107] Mr Etheredge would record the work at Mr Morgan's house on the same invoice and he received the same rate of pay as he did for working at the Flinders Lane site.[108] On receipt of the invoice, the respondent paid Mr Etheredge for the work he did.[109]
[104] Etheredge - Exhibit A3, para 13 [CB 1469].
[105] Etheredge - Exhibit A3, para 13 [CB 1469] and T54.27-29 (26 February 2013).
[106] Etheredge - T54.22-23 (26 February 2013).
[107] Etheredge - T54.29-31 (26 February 2013).
[108] Etheredge - T54.8-9 (26 February 2013).
[109] Defence, para 79.
Mr Etheredge did not include his ABN on every invoice and this was not questioned by the respondent.[110] Mr Etheredge did not include GST on his invoices.[111] The respondent did not deduct tax from Mr Etheredge's income.[112]
[110] Etheredge - T54.35-38 (26 February 2013).
[111] Etheredge - Exhibit A3, para 13 [CB 1469].
[112] Etheredge - T54.40-41 (26 February 2013).
Mr Etheredge never employed anyone during his engagement with the respondent.[113]
[113] Etheredge - Exhibit A3, para 23 [CB 1471]
Mr Etheredge initially travelled to work by train.[114] Mr Morgan later provided him with a van which he used to travel to and from work.[115] Mr Etheredge did not pay for travel expenses, but paid for any fines.[116]
[114] Etheredge - T62.21-22 (26 February 2013).
[115] Etheredge - T70.39-42 (26 February 2013).
[116] Etheredge - T62.44-46 (26 February 2013).
Mr Etheredge was told by Mr Morgan many times "Don't you ever leave us" because he was doing something no one else could do and referred to him as a member of "the family".[117]
[117] Etheredge - T55.4-8 (26 February 2013).
On or about 15 July 2010, Mr Etheredge’s contract with the respondent was terminated by agreement and the parties entered into a contract of employment.[118] The work Mr Etheredge performed and the way
Mr Etheredge was paid remained the same after 15 July 2010.[119]
Mr Etheredge finished working for the respondent on 25 May 2012.[120]
[118] Defence, para 77.
[119] Etheredge - T55.20-24 (26 February 2013).
[120] Etheredge - T56.30-32 (26 February 2013).
The invoices completed show that:
Name
Year
Average Hours Worked*
No. of Weeks Worked
Mr Etheredge
2009
40.22 hours
46 weeks
2010
37.29 hours
28 weeks
a)
In the period February 2009 until 31 December 2009,
Mr Etheredge worked an average of 40.22 hours per week over the 46 weeks that he worked in that period; and
b)In the period 1 January 2010 until July 2010, Mr Etheredge worked an average of 37.29 hours per week over the 28 weeks that he worked in that period.
The respondent admits that it was party to a contract with Mr Etheredge from 12 February 2009 until 15 July 2010. The respondent has also pleaded that Mr Etheredge was engaged under a contract for services, pursuant to which he was to perform building work at times to be agreed between the parties. Mr Etheredge was to be paid $25 per hour for the work he performed.
In written submissions, and in light of the evidence, the respondent’s position was:
“40.It is submitted that Mr Etheridge was engaged as a contractor by the Respondent.
41. Indicia that point to such an engagement are:
(a)the initial engagement was on terms that included that the engagement was that of principal and contractor;
(b)there is no evidence that Mr Etheridge sought terms of engagement other than as a contractor. The Respondent sought to engage a person or entity to provide it with bricklaying services; (Transcript 17 June 2013 P28 TT 1 – TT 25 and P35 TT 15 – TT 19)
(c)Mr Etheridge performed work as a contractor prior to entering into the relationship with the Respondent and understood the difference between the types of engagements; (Transcript 26 February 2013 P59 TT 40 – TT 43)
(d)Mr Etheridge was aware that the use of an ABN involved the operation of as business as he has used one when providing carpentry services; (Transcript 26 February 2013 P60 TT 16 – TT 18)
(e)Mr Etheridge performed work for entities other than the Respondent; (Transcript 26 February 2013 P60 TT 44 – TT 46; P69 TT 40 –TT 46. Transcript 13 May 2013 P73 TT 3)
(f)Mr Etheridge provided invoices that were self-generated and were not recipient generated tax invoice; (Transcript 13 May 2013 P75 TT 5 – TT 36, Exhibit A3 Annexure SE-2 Pages 1472 - 1627)
(g)Although tools were provided by the Respondent It did not prohibit or restrict Mr Etheridge supplying or using his own tools; (Transcript 13 May 2013 P74 TT 7 – P75 TT 3)
(h)the tools that were supplied by the Respondent for the use of Mr Etheridge were small items of minor value such as trowels and buckets; (Transcript 13 May 2013 P74 TT 7 – P75 TT 3)
(i)Mr Etheridge bought his own tools on site as tools provided by the Respondent were not what he required; (Transcript 13 May 2013 P74 TT 7 – P75 TT 3)
(j)Mr Etheridge was instrumental in engaging a contractor (Mr Walker) to assist him in undertaking the work performed by him; (Transcript 26 February 2013 P67 TT 16 – TT 43)
(k)Mr Etheridge used his own skill and expertise to carry out work. He was not subject to supervision; (Transcript 26 February 2013 P68 TT 35 – P69 TT 8)
(l)there is no evidence that Mr Etheridge sought to sub-contract out the work he was performing or that a request to sub contract was rejected; (Transcript 13 May 2013 P70 TT 7)
(m)Mr Etheridge was not required to work a minimum of 38 per week; (Transcript 13 May 2013 P70 TT 10 – TT 30)
(n)the work to be perform was project based and the end date was unpredictable; (Transcript 13 May 2013 P71 TT 15 – TT 35)
(o)He did not work consistent days. In particular more often than not Mr Etheridge worked less than 5 days per week. (See Appendix 1).
42.It is submitted that when taking account of the totality of the relationship between the Respondent and Mr Etheridge, the Court should find that the relationship is one of contractor and principal and not one of employment.”
The applicant in submissions in reply took issue with these submissions as follows:
“34.At paragraph 41 of Linkhill's Submissions, Linkhill identifies a range of indicia that it considers points to Etheredge being engaged as a contractor. In relation to these indicia, the Director responds as follows (NB: the following sub-paragraph numbers relate to the matters set out in the same sub-paragraph numbers referred to in paragraph 41 of Linkhill's Submissions):
(a)Linkhill does not identify any evidence to support the contention that the "initial engagement was on terms that included that the engagement was that of principal and contractor" nor does it identify such terms;
(b)it is not an accurate representation of Morgan's evidence to state that Linkhill "sought to engage a person or entity to provide it with bricklaying services". However, even if it is accurate and even if "there is no evidence that Mr Etheredge sought terms of engagement other than as a contractor", the Director submits that such matters are of little relevance to determination of the true nature of the relationship between Etheredge and Linkhill;
(c)Linkhill's contention that Etheredge "understood the difference between the types of engagements" is an assumption only. Rather it was put to Etheredge in cross-examination that "In your 35 years' experience, you understand that contractors operate a business; correct?" to which he replied "Yes, I do" and he was then asked "And you obviously have operated a business; is that correct?" to which he replied "Yes I have". This is not evidence of any particular understanding on the part of Etheredge as to the differences between a contractor relationship and an employment relationship. In addition, whether or not Etheredge "performed work as a contractor prior to entering into the relationship with the Respondent" is irrelevant to the question of whether Etheredge was engaged by Linkhill as a contractor or employee;
(d)Linkhill's statement that Etheredge "was aware that the use of an ABN involved the operation of as [sic] business as he used one when providing carpentry services" does not reflect Etheredge's evidence which was simply that he had used his ABN 18 years ago as a carpenter . In any event, even if such statement was accurate it is of little significance to determining the nature of the relationship between Etheredge and Linkhill;
(e)the evidence does not support Linkhill's contention that "Etheredge performed work for entities other than the Respondent". Linkhill relies upon evidence from Lowery and Etheredge in this regard. Whilst Lowery's evidence is that Etheredge took time off to do other work, the direct evidence of Etheredge should be preferred which is that he did not work for anyone else while he was working for Linkhill;
(f)the Director relies upon paragraphs 19 to 21 above;
(g)the Director relies upon paragraphs 24 to 25 above;
(h)the submission by Linkhill that the tools that were supplied by Linkhill for the use of Mr Etheredge were "small items of minor value such as trowels and buckets" is not an accurate summary of Lowery's evidence. In cross-examination Lowery was asked whether Etheredge brought his own tools in and his response was "No.
I think he used most of ours" and Lowery then agreed to the suggestion put to him that the type of tools were "trowels and buckets and so forth." Notwithstanding this, whether such tools were "small items" or not, as set out in paragraphs 24 to 25 above, Etheredge was provided with all tools and equipment required to perform his work by Linkhill. This is not only supported by Etheredge's own evidence but also by Lowery's evidence as referred to above;(i)the evidence of Lowery that is referred to by Linkhill does not support the submission that Etheredge brought "his own tools on site as tools provided by the Respondent were not what he required." Rather, Lowery's evidence was that Etheredge used most of Linkhill's tools. However, Etheredge's own evidence is that he "sometimes" used his own tools but that all tools and materials were provided by Linkhill;
(j)to suggest that Etheredge "was instrumental in engaging a contractor (Mr Walker) to assist him in undertaking the work performed by him" is not an accurate and complete summary of Etheredge's evidence. Specifically, Etheredge's evidence is that he spoke to Walker, who is a friend of his, about the job and arranged for him to come in after Morgan told him to, as "Linkhill needed another worker on site";
(k)even if Linkhill's submission that Etheredge "used his own skill and expertise to carry out work" is accurate, this fact is not inconsistent with an employment relationship. Further, the evidence does not support Linkhill's submission that Etheredge was "not subject to supervision" and the Director relies upon the matters set out in paragraph 98 of the Director's Submissions in this regard;
(l)the Director relies upon paragraphs 22 to 23 above;
(m)the Director relies upon paragraphs 26 to 27 above;
(n)the Director relies upon paragraphs 28 to 30 above;
(o)the Director relies upon paragraphs 31 to 33 above with respect to the incorrect assertion that Etheredge "did not work consistent days". Further, the Director rejects that "more often than not Mr Etheridge [sic] worked less than 5 days per week" as this is not supported by the evidence of Etheredge or the invoices tendered by the Director for the relevant period. The Director otherwise relies upon the matters referred to in paragraphs 13 to 18 above with respect to the reliability of Appendix 1.”[121]
[121] For reference to the applicant’s submissions in reply not included herein see para 246
I accept the criticisms made of the respondent’s submissions about Mr Etheredge’s evidence.
Evidence of Mr Paul Gillen
Mr Gillen adopted his affidavits. He gave evidence and was cross examined. Mr Gillen’s evidence was that he
responded to a job advertisement for an antique/maintenance position in June 2002.[122]
The job advertisement did not state whether the position was as an employee or independent contractor.[123]
[122] Gillen - Exhibit A4, Annexure PG-06, para 6 [CB 816].
[123] Gillen - Exhibit A4, para 4 [CB 808].
Mr Gillen subsequently attended an interview with Ms Pauline Underwood, who was the Gallery Manager and Mr Morgan.[124]
Ms Underwood told Mr Gillen that he was required to work 40 hours per week;[125] that the work hours were 8.30am to 5.00;[126] and that he would have to provide an invoice to get paid.[127] Mr Morgan told Mr Gillen that he would need an ABN.[128] Mr Gillen later obtained an ABN.[129]Ms Underwood subsequently offered Mr Gillen the job[130] and he commenced work at the 401 Collins Street site.[131] He also worked at the 411 Collins Street site.[132][124] Gillen - Exhibit A4, Annexure PG-06, para 8 and 9 [CB 816-817].
[125] Gillen - Exhibit A4, para 5(a) [CB 808].
[126] Gillen - Exhibit A4, Annexure PG-06, para 27 [CB 819].
[127] Gillen - Exhibit A4, para 5(b) [CB 808].
[128] Gillen - Exhibit A4, Annexure PG-06, para 9 [CB 816-817].
[129] Gillen - Exhibit A4, para 6 [CB 808].
[130] Gillen - Exhibit A4, Annexure PG-06, para 10 [CB 817].
[131] Gillen - Exhibit A4, Annexure PG-06, para 11 [CB 817].
[132] Gillen - Exhibit A4, Annexure PG-06, para 11 [CB 817].
Mr Gillen was engaged by Elazac Pty Ltd, (an entity of the Roy Morgan Group) pursuant to a document called a "Contract for Services" which was made on or about 25 February 2003.[133] Under that contract, Mr Gillen was to perform building work for Elazac Pty Ltd,[134] which would pay Mr Gillen a rate of $25 per hour. Mr Gillen was required to work 40 hours a week.[135] The contract expired on
24 February 2004.[136] Mr Gillen asked Mr Morgan for another contract.[137]
[133] Defence, para 146.
[134] Defence, para 146.
[135] Gillen - Exhibit A4, Annexure PG-06, para 12 [CB817]
[136] Gillen - Exhibit A4, para 8 [CB 808].
[137] Gillen - Exhibit A4, para 8 [CB 808].
Mr Gillen was subsequently engaged by Elazac Pty Ltd pursuant to a document called a "Contract for Services" which was made on or about 1 August 2004[138] and provided:
[138] Defence, para 147.
“CONTRACT FOR SERVICES
THIS AGREEMENT is made on the 1st day of August, 2004 and terminates on the 31st day of July, 2005.
BETWEEN:
Elazac Pty Ltd, ABN 89 006 681 018 of 411 Collins Street, Melbourne in the State of Victoria, Australia (“the Company”) which expressions where the context so permits or requires shall be deemed to include its successors transferees and assigns as the case may be.
And
Paul Gillen of [address redacted], in the State of Victoria, Australia (“the Contractor”) which expression where the context so permits so requires shall be deemed to include the heirs executors administrators successors transferees and assigns as the case may be.
WHEREAS:
The Company has agreed to engage the Contractor to act as Sub-contractor and the Contractor has agreed to so act NOW THIS AGREEMENT WITNESSES as follows:
1.Interpretation
In this Agreement, the following expressions shall have the meanings outlined unless the context otherwise requires:
(a)The “Commencement Date” means 1 August, 2004.
(b)The “Schedule” means the Schedule/s attached to this Agreement.
(c)Words denoting the singular shall include the plural and vice versa.
(d)A reference to any document or agreement including this Agreement shall be deemed to include references to the document or agreement as amended, notated, supplemented, varied or replaced from time to time.
(e)Words denoting any gender shall include all genders.
Terms
2.This Agreement shall come into effect on the Commencement Date.
3.The Company hereby agrees to engage the services of the Contractor as a Sub-contractor to provide the services set out in Schedule 1 (attached) and the Contractor hereby warrants and acknowledges that in performing its duties and obligations hereunder it in no way is or is intended to be an employee of the Company but is and is intended to be at all times an independent contractor.
4.The Company agrees to pay the Contractor for the performance of the services by the Contractor hereunder the amounts specified in Schedule 2 (attached) (“the Contract Fee”). The Contractor shall submit to the Company an invoice duly signed by or on behalf of the Contractor and delivered to the Company at the end of each completed week, one week in arrears. Payment of the Contract Fee will be subject to approval by the person(s) overseeing the contract (refer attached terms of reference) and shall be payable within 24 hours of approval. The company shall notify the contractor within 24 hours of receipt of the invoice if there is any dispute as to the amounts charged.
5.The Contractor acknowledges that it has no claim upon the Company in respect of annual leave, public holidays, sick leave, long service leave, superannuation or any other entitlements. The Contract Free shall be the full and only amount payable by the Company to the Contractor for all services provided and upon payment of the Contract Fee the company will be relieved of any further obligation or liability to the Contractor. The parties agree and acknowledge that the Contract Fee payable by the Company to the Contractor hereunder shall be confidential and shall not be disclosed to any other party.
6.The Contractor hereby warrants and acknowledges that it has qualifications expertise and experience appropriate to perform the duties and obligations of the Contractor hereunder.
7.The Contractor undertakes and warrants that it will carry out the services it has agreed to provide hereunder at all times and from time to time in a thorough and professional manner to the best of its ability.
8.The Contractor will supply his own tools.
9.The Contractor agrees to abide by all requirements of the Company in relation to safe work practices and shall not undertake any activity that would cause a breach of Occupational Health and Safety and Safety provisions applying to workplace safety.
10.The Contractor acknowledges that it shall be solely responsible for payment of the Contractor’s own income tax and consents to the Company furnishing the Commissioner of Taxation with the Contractor’s name address and all details of payments made to the Contractor by the Company.
11.The Contractor acknowledges that he does not provide services exclusively to the Company.
12.The Contractor agrees and undertakes at no time to expressly or impliedly bind attempt to bind or purport to bind the Company in any way without the written consent of the Company nor shall the Contractor represent to any party that it is an employee of the Company.
13.Either party shall have the right to terminate this Agreement at any time by giving to the other party not less than 1 month’s written notice of such termination.
14.The Company and the Contractor further agree that the Company has the right to terminate this Agreement without notice at any time where there has been a breach of the terms and conditions hereof by the Contractor.
15. General
(a)This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in Victoria and the parties submit to the non-exclusive jurisdiction of the court of Victoria.
(b)The termination of this Agreement shall not affect the rights of the parties accrued before or upon or as a result of termination.
16. Notices
(a)Any notice, consent, approval, offer, demand, request or other instrument required or authorised to be given or served upon a party pursuant to this Agreement shall be in writing and may be given by:
(i) Prepaid post or facsimile; or
(ii) Hand;
to that party addressed as follows:
In the case of the Company
[company details redacted]
In the case of the Contractor
[Mr Gillen’s details redacted]
…
17. Confidentiality
The Contractor understands and acknowledges that he owes the Company a duty of fidelity and a duty of confidentiality, with such duties having the meaning recognised by law from time to time. Without limiting the meaning of such duties and in consideration of the release of information to the Contractor from the date of this agreement, the Contractor agrees and undertakes that:
(a)he will keep in strictest confidence all knowledge or information concerning the business, affairs and property of the Company;
(b)he will only make use of information acquired during the course of his contract in the proper performance of the Contractor’s duties and for no other purpose;
(c)he will take all reasonable precautions to keep information confidential and secret and prevent unauthorised use, theft or disclosure of it;
(d)he will not at any time directly or indirectly disclose, communicate or make available to any person or company any knowledge or information concerning the Company which the Contractor may acquire during the course of his contract concerning the affairs or property of the Company or any business, property or transaction in which the Company may be or may have been concerned or interested;
(e)upon termination of his contract the Contractor will return all property of the Company in his possession or to which he had access during the course of his contact, including all documents, materials, processes, and data whether in physical, electronic, computerised or any other form;
(f)any breach of this agreement will result in disciplinary measures and may result in dismissal, termination of contract and/or legal action;
(g)the obligations set out in this agreement survive the termination of the Contractor’s contact with the Company.…”
Under the contract, Mr Gillen was to perform building work for Elazac Pty Ltd,[139] agreed to engage Mr Gillen as a subcontractor; Elazac Pty Ltd would pay Mr Gillen at $25 per hour, for 40 hours per week.
Mr Gillen was required to provide Elazac Pty Ltd with an ABN and Mr Gillen agreed to be responsible for his own income tax.[140] The contract expired on 31 July 2005.[141] Gillen did not then ask for another contract because Mr Morgan had said to him that "You've got a job here forever."[142]
[139] Defence, para 147.
[140] Defence, para 148.
[141] Gillen - Exhibit A4, para 9 [CB 808].
[142] Gillen - Exhibit A4, para 10 [CB 808].
In 2005 or 2006 Mr Gillen started to work at the 386 Flinders Lane site[143] as a labourer, where he performed demolition works and re-fitting,[144] general labouring and maintenance work such as pulling down floors, knocking down walls, and some carpentry work.[145] Mr Gillen was required to work from 7.00am to 3.30pm.[146] Mr Darrigrand told Mr Gillen these were the hours he had to work.[147] Mr Darrigrand also told Mr Gillen of the scheduled break times.[148]Mr Morgan or Mr Darrigrand also told Mr Gillen when work was required on the weekend.[149] Mr Morgan occasionally directed Mr Gillen to do certain tasks.[150]
[143] Gillen - Exhibit A4, Annexure PG-06, para 18 [CB 818].
[144] Gillen - Exhibit A4, Annexure PG-06, para 19 [CB 818].
[145] Gillen - Exhibit A4, para 11 [CB 809].
[146] Gillen - Exhibit A4, Annexure PG-06, para 27 [CB 819]
[147] Gillen - Exhibit A4, para 17(a) [CB 810].
[148] Gillen - Exhibit A5, para 4(a) [SCB 13].
[149] Gillen - Exhibit A4, para 18 [CB 810].
[150] Gillen - Exhibit A4, Annexure PG-06, para 20 [CB 818].
Mr Gillen also worked at Mr Morgan's house and Mr Morgan's sister-in-law's house.[151] The work Mr Gillen performed at Mr Morgan's house included knocking down a wall, replicating timber work, repairing an entry gate, gardening, putting sprinkler taps in his house, putting carpet on his rear lawn for a party and installing heating systems.[152] The work Mr Gillen performed at Mr Morgan's sister-in-law’s house included knocking down the back of the house and extending it.[153] Mr Gillen also did antique restoration and maintenance work at the 401 Collins Street site.[154] However, from around 2007 onwards Mr Gillen spent minimal time restoring furniture.[155] Mr Gillen only spent approximately 5 hours per week, at the most, performing antique restoration work.[156]
[151] Gillen - Exhibit A4, Annexure PG-06, para 21 [CB 818].
[152] Gillen - Exhibit A4, para 13(a) [CB 809].
[153] Gillen - Exhibit A4, para 13(c) [CB 809].
[154] Gillen - Exhibit A4, Annexure PG-06, para 19 [CB 818].
[155] Gillen - T76.28-29 (26 February 2013).
[156] Gillen - Exhibit A4, para 11 [CB 809].
When working at the 386 Flinders Lane site, Mr Morgan told Mr Gillen what work needed to be done.[157] Mr Darrigrand also directed his work.[158] Mr Gillen supervised 2-3 other workers at the site[159] and directed them if work was required on weekends.[160]
[157] Gillen - Exhibit A4, para 16 [CB 810].
[158] Gillen - Exhibit A4, para 16 [CB 810].
[159] Gillen - Exhibit A4, para 16 [CB 810].
[160] Gillen - Exhibit A4, para 19 [CB 810].
All the tools, equipment and materials with which Mr Gillen required were supplied by the respondent or Elazac Pty Ltd.[161] If Mr Gillen required further tools or materials, he purchased them on either Elazac Pty Ltd’s or the respondent's account.[162]
[161] Gillen - Exhibit A4, Annexure PG-06, para 24 [CB 819].
[162] Gillen - Exhibit A4, Annexure PG-06, para 23 and 24 [CB 819].
Mr Gillen informed Ms Underwood, Mr Morgan or Mr Darrigrand if he was going to take a day off.[163] The respondent would generally not pay Mr Gillen when he was sick but on a few occasions he was paid.[164] Mr Jim Wallace arranged for the respondent to pay Mr Gillen on one occasion when he missed a couple of days because he injured his back at work.[165] Mr Gillen did not arrange for a replacement or anyone else to do his work when he could not attend work and he was never asked to do so.[166]
[163] Gillen - Exhibit A5, para 4(b) [SCB 13-14].
[164] Gillen - Exhibit A4, Annexure PG-06, para 15 and 16 [CB 818].
[165] Gillen - Exhibit A4, Annexure PG-06, para 17 [CB 818].
[166] Gillen - Exhibit A4, para 32 [CB 811].
Mr Gillen did not work for anyone else while he worked for Elazac Pty Ltd and the respondent.[167] Mr Gillen had asked Mr Morgan if he could do other jobs, but Mr Morgan did not approve.[168]
[167] Gillen - Exhibit A4, Annexure PG-06, para 26 [CB 819].
[168] Gillen - Exhibit A4, para 14 [CB 809-810] and Exhibit A4, Annexure PG-06, para 22 [CB 819].
In or about March or April 2007 Mr Wallace told Mr Gillen to submit new invoices,[169] which had been prepared by the respondent's accounts office,[170] rather than using those prepared from his own invoice book. Mr Gillen then submitted the new invoices to Mr Wallace and subsequently Mr Darrigrand.[171] On receipt of the invoices, the respondent paid Mr Gillen for the work he did.[172] Mr Gillen was paid for each hour that he worked regardless of specific work that he performed and was never paid by results.[173] Mr Gillen did not charge GST during the time he worked for the respondent.[174]
[169] Gillen - Exhibit A4, para 35(a) and (b) [CB 812]
[170] Gillen - Exhibit A4, para 35 [CB 812]
[171] Gillen - Exhibit A4, para 35(c) [CB 812]
[172] Defence, para 153.
[173] Gillen - Exhibit A4, para 36 [CB 812].
[174] Gillen - Exhibit A4, para 37 [CB 812].
The invoices completed by Mr Gillen show that:
Name
Year
Average Hours Worked*
No. of Weeks Worked
Mr Gillen
2007
37.51 hours
38 weeks
2008
34.97 hours
32 weeks
a)in the period April 2007 until 31 December 2007, Mr Gillen worked an average of 37.51 hours over the 38 weeks that he worked in that period; and
b)in the period from 1 January 2008 until August 2008, Mr Gillen worked an average of 34.97 hours over the 32 weeks that he worked in that period.
Either the respondent or Elazac Pty Ltd paid for Mr Gillen's red card and for Mr Gillen to attend fire warden and first aid training.[175]
[175] Gillen - Exhibit A4, Annexure PG-06, para 25 [CB 819]
Mr Gillen's contract with the respondent terminated on or about 21 August 2008.[176]
[176] Defence, para 151.
The respondent admits that it was a party to a contract with Mr Gillen from 5 April 2007 until 21 August 2008. It has also pleaded that in or about June 2007, Mr Gillen was engaged by it under a contract for services pursuant to which Mr Gillen was to perform building work for it and that under the contract Mr Gillen was to be paid an hourly fee for the work performed. The respondent also admits that Mr Gillen's hourly rate was varied from time to time and increased to $30.
In written submissions, and in light of the evidence, the respondent’s position was:
“43.It is submitted that Mr Gillen was engaged as a contractor by the Respondent.
44.Mr Gillen’s initial engagement was by Elazac Pty Ltd from 25 February 2003 for a fixed period of 12 months. A further contract of 12 months was entered into thereafter. (Exhibit A4 Annexure PG-01 page 823 – 828 and Annexure PG-02 page 829 – 834).
45.Between 25 February 2003 to 4 May 2007 Mr Gillen received payment for work performed by him from entities other than the Respondent.
46.He did not receive any income from the Respondent until the week commencing 4 May 2007. (Exhibit A4 Annexure PG-02 page 838 – 849)
47.Indicia that point to Mr Gillen’s engagement as a contractor are:
(a)there is no evidence that Mr Gillen sought terms of engagement other than as a contractor;
(b)The Respondent sought to engage a person or entity to provide furniture restoring services to it on an as required basis;
(c)Mr Gillen sought to operate his business from 411 Collins Street (Transcript 26 February 2013 P78 TT 26 - TT 35);
(d)Mr Gillen considered expanding his business; (Exhibit A4 paragraph 29; Transcript 26 February 2013 P79 TT 14 – TT 20
(e)Mr Gillen provided invoices that were self-generated and were not recipient generated tax invoice; (Transcript 13 May 2013 P75 TT 5 – TT 36; Exhibit A4 Annexure PG-03 page 835 - 1053)
(f)although tools were provided by the Respondent It did not prohibit or restrict Mr Gillen supplying or using his own tools; (Transcript 13 May 2013 P74 TT 7 – P75 TT 3)
(g)Mr Gillen used his own skill and expertise to carry out work. Mr Gillen was not subject to supervision; (Transcript 26 February 2013 P83 TT 24 – P84 TT 15)
(h)Mr Gillen was not provided with a position description, an organisational chart, user account for access to the internet or the intranet or an email address; (Transcript 26 February 2013 P84 TT 15 – TT 39)
(i)there is no evidence that Mr Gillen sought to sub-contract out the work he was performing or that a request to sub contract was rejected; (Transcript 13 May 2013 P70 TT 7)
(j)Mr Gillen was not required to work a minimum of 38 hours per week; (Transcript 13 May 2013 P70 TT 10 – TT 30);
(k)the work to be perform was project based and the end date was unpredictable; (Transcript 13 May 2013 P71 TT 15 – TT 35);
(l)Mr Gillen did not work consistent hours or consistent days. (See Appendix 2)
48.It is submitted that when taking account of the totality of the relationship between the Respondent and Mr Gillen, the Court should find that the relationship for the period 4 May 2007 to 8 August 2008 one of contractor and principal and not one of employment.”
The applicant in submissions in reply took issue with these submissions as follows:
“35.Linkhill claims that the period of engagement of Gillen was from "4 May 2007 - 8 August 2008". This is inconsistent with its admission that Linkhill was a party to a contract with Gillen from 5 April 2007 until 21 August 2008 .
36.In relation to the assertion in paragraph 45 that "between 25 February 2003 to 4 May 2007 Mr Gillen received payment for work performed by him from entities other than the Respondent", the Director notes that:
(a)the evidence shows that for most of this period (i.e. up until at least 5 April 2007) Gillen was engaged by and performed work for Elazac, a wholly owned subsidiary of Linkhill;
(b)other than the work that Gillen performed for Elazac and Linkhill, there is no evidence to suggest that Gillen performed work for any other entities. To the contrary, the uncontested evidence of Gillen is that he did not work for anyone else while he worked for Elazac and Linkhill ; and
(c)most of this period (i.e. up until 5 April 2007) is prior to the period of time to which the claims in respect of Gillen relate.
37.At paragraph 46, Linkhill claims that Gillen "did not receive any income from the Respondent until the week commencing 4 May 2007". Irrespective of whether this is in fact the case, Linkhill has nevertheless admitted to being a party to a contract with Gillen from 5 April 2007.
38.At paragraph 47 of Linkhill's Submissions, Linkhill identifies a range of indicia that it considers points to Gillen being engaged as a contractor. In relation to these indicia, the Director responds as follows (NB: the following sub-paragraph numbers relate to the matters set out in the same sub-paragraph numbers referred to in paragraph 47 of Linkhill's Submissions):
(a)in relation to Linkhill's submission that "there is no evidence that Mr Gillen sought terms of engagement other than as a contractor", the Director submits that to the extent this is relevant to determining the nature of the relationship between Gillen and Linkhill, it should be given very little weight as it is not indicative of whether the true nature of the relationship is one of employment or independent contractor;
(b)Linkhill does not identify any evidence to support the contention that Linkhill "sought to engage a person or entity to provide furniture restoring services to it on an as required basis";
(c)Linkhill's submission that Gillen "sought to operate his business from 411 Collins Street" is not an accurate summary of Gillen's evidence and is misleading. Gillen's evidence is that in or around 2005 (prior to the relevant period of the claim) he asked Morgan if he could do "outside work like furniture building and restoration in the Workshop on the weekends and outside of my standard hours" initially at 411 Collins Street and then at Tavistock Lane and Morgan's response was "No, it's not your equipment, you don't work for anyone else" and that given Morgan's response he "did not do anything else to pursue this business idea" ;
(d)Linkhill's submission that Gillen "considered expanding his business" is not an accurate summary of Gillen's evidence and is misleading. There is no evidence that during the relevant period of the claim, being 5 April 2007 to 21 August 2008, Gillen considered "expanding his business". However, as set out in subparagraph (c) above, Gillen did seek to pursue a business idea but did not follow through because of the response he received from Morgan;
(e)the Director relies upon paragraphs 19 to 21 above;
(f)the Director relies upon paragraphs 24 to 25 above;
(g)even if Linkhill's submission that Gillen "used his own skill and expertise to carry out work" is accurate, this fact is not inconsistent with an employment relationship. Further, Linkhill's submission that Gillen was "not subject to supervision" is not an accurate summary of the evidence. Gillen's evidence is that he was directed as to the work that he was required to do by Morgan and Darrigrand but that they did not tell him how to do his job ;
(h)the Director submits that it is irrelevant to the proper characterisation of the relationship between Linkhill and Gillen as to whether or not he was "provided with a position description, an organisational chart, user account for access to the internet or the intranet or an email address" and, to the extent it is relevant, very little weight should be given to this fact;
(i)the Director relies upon paragraphs 22 to 23 above;
(j)the Director relies upon paragraphs 26 to 27 above;
(k)the Director relies upon paragraphs 28 to 30 above;
(l)the Director relies upon paragraphs 31 to 33 above with respect to the incorrect assertion that Gillen "did not work consistent hours or consistent days". The Director also relies upon the matters referred to in paragraphs 13 to 18 above with respect to the reliability of Appendix 2.”[177]
[177] For reference to the applicant’s submissions in reply not included herein see para 246
I accept the criticisms made of the respondent’s submissions about Mr Gillen’s evidence.
Evidence of Mr Joel Elliott
Mr Elliott adopted his affidavits, he gave evidence and was cross examined. Mr Elliott evidence was that he is a qualified wood machinist and had worked in the furniture industry for about 13 years prior to working for the respondent.[178]
[178] Elliott - Exhibit A6, Annexure JE-1, para 5 [CB 1634].
In the period of his contract with the respondent, Mr Elliott worked as a labourer and his duties included general labouring, carpentry, cabinet making, wood-machining and painting.[179] Mr Elliott also performed general maintenance work at 401 Collins Street[180] and Mr Morgan's house.[181]
[179] Elliott - T88.16 (26 February 2013) and Exhibit A6, Annexure JE-1, para 4 [CB 1634].
[180] Elliott - Exhibit A6, Annexure JE-1, para 4 [CB 1634].
[181] Elliott - Exhibit A7, para 6(c) [SCB 21].
Before commencing with the respondent, Mr Lowery told Mr Elliott that he would need an ABN,[182] the work hours were 7am to 3.30pm,[183] and that he was expected to work at least 40 hours per week.[184] Mr Elliott subsequently obtained an ABN.[185] Mr Lowery also told Mr Elliott that he would be paid an hourly rate and that there were no penalty rates.[186] Mr Lowery or Mr Darrigrand also told Mr Elliott that he had a three month probationary period.[187] Shortly after commencing with the respondent, Mr Lowery or Mr Darrigrand also told Mr Elliott that he would have a half an hour break in the morning and a half an hour break at lunchtime.[188] In his work for the respondent, Mr Elliott reported to Mr Lowery[189] and Mr Lowery told Mr Elliott what work needed to be carried out each day.[190] Mr Morgan also instructed Mr Elliott what to do.[191] Mr Elliott would speak to Mr Lowery or Mr Darrigrand if he needed assistance or needed work to be checked.[192]
[182] Elliott - Exhibit A6, para 1(b) [CB 1629].
[183] Elliott - Exhibit A6, Annexure JE-1, para 7 [CB 1634].
[184] Elliott - Exhibit A7, para 4(a) [SCB 20].
[185] Elliott - T89.8-10 (26 February 2013).
[186] Lowery - Exhibit A32, para 33 [CB 192].
[187] Elliott - Exhibit A6, para 7(e) [CB 1630]
[188] Elliott - Exhibit A6, para 7(a) [CB 1629].
[189] Elliott - Exhibit A6, para 1(a) [CB 1629].
[190] Elliott - Exhibit A6, para 5 [CB 1629].
[191] Elliott - Exhibit A7, para 5 [SCB 21].
[192] Elliott - Exhibit A6, para 6 [CB 1629].
If Mr Elliott made a mistake or if something went wrong, Mr Lowery would tell him what he needed to do to fix it and any such work was then done by Mr Elliott during work hours.[193]
[193] Elliott - Exhibit A6, para 6 [CB 1629].
On a couple of occasions, Mr Elliott supplied his own tools such as his table saw and thicknesser as the respondent did not have those tools.[194] Otherwise, the tools and equipment with which Mr Elliott worked with were all supplied by the respondent.[195] Mr Elliott told Mr Lowery or Mr Darrigrand if he needed additional materials and either they would order those materials or Mr Elliott would order them and it would be paid for by the respondent.[196]
[194] Elliott - T91.21, 39-44 (26 February 2013).
[195] Elliott - Exhibit A6, Annexure JE-1, para 19 [CB 1636].
[196] Elliott - Exhibit A6, Annexure JE-1, para 15 [CB1635].
Mr Elliott usually gave Mr Lowery one months' notice before taking any time off.[197] Mr Elliott did this because Mr Lowery told him that he needed to give notice if he wanted to take time off.[198]
[197] Elliott - Exhibit A6, para 9 [CB 1630].
[198] Elliott - Exhibit A6, para 9 [CB 1630].
Mr Elliott did some carpentry work and cabinet making outside his work for the respondent.[199] Mr Elliott generally did this work on weekends.[200] If Mr Elliott needed to do this work during the week, he asked Mr Lowery if he could take time off.[201] Mr Elliott requested leave and Mr Lowery approved two weeks off, to perform building work on a house near Daylesford.[202] Mr Elliott gave Mr Lowery 7 to 8 months' notice of this time off.[203]
[199] Elliott - Exhibit A6, para 9(a) [CB 1630].
[200] Elliott - Exhibit A6, para 9(a) [CB 1630].
[201] Elliott - Exhibit A6, para 9(a) [CB 1630].
[202] Elliott - Exhibit A7, para 8(a) [SCB 21].
[203] Elliott - Exhibit A7, para 8(b) [SCB 21].
Each Wednesday Mr Elliott submitted an invoice to the respondent by emailing it to Mr Darrigrand.[204] Each invoice recorded the hours Mr Elliott had worked that week and the particular work that he had done.[205] Mr Darrigrand provided Mr Elliott with the invoice template.[206] Mr Elliott used a form with various codes on it prepared by Mr Darrigrand to describe the work he had performed.[207] Mr Lowery did not charge GST for the work that he performed.[208] The respondent paid Mr Elliott on receipt of the invoice.[209] Tax was not deducted from the pay that Mr Elliott received.[210]
[204] Elliott - Exhibit A6, Annexure JE-1, para 22 [CB1636].
[205] Elliott - Exhibit A6, Annexure JE-1, para 22 [CB1636].
[206] Elliott - Exhibit A6, para 11 [CB 1630].
[207] Elliott - Exhibit A6, para 11 [CB 1630].
[208] Elliott - Exhibit A6, para 14 [CB 1631].
[209] Defence, para 97.
[210] Elliott - Exhibit A6, para 13 [CB 1631].
I am satisfied the major and substantial proportion of the work of those workers whose classifications remained in dispute fell within the classifications the applicant contended for during the period/s set out in those submissions. In light of the evidence to the extent there is a dispute between the applicant and the respondent I am satisfied the applicant has made out its claim.
In relation to the remaining dispute/s over the coverage and correct classification for Mr Elliott, Mr Gillen, Mr Lovell and Mr Lowery as the applicant noted in submissions in reply:
“81.In relation to Gillen, Linkhill contends at paragraphs 98 to 99 that Gillen "was principally engaged as a furniture restorer and performed work as such" and, accordingly, his principal engagement does not fall within the application of the 2000 Award.
82.This submission by Linkhill is contrary to its admissions that all of the workers, including Gillen, "were engaged by it to perform, and did perform, renovation and refurbishment works on the building at 384-386 Flinders Lane, Melbourne in the State of Victoria" and the work performed by all of the workers, including Gillen, "was building work within the meaning of s 5(1) of the BCII Act". It is also contrary to its pleading that in or about June 2007, Gillen was engaged by Linkhill under a contract for services pursuant to which Gillen was to perform building work for it.
83.In addition, whilst Gillen may have originally responded to a job advertisement for an antique restoration/maintenance position in June 2002, the uncontroverted evidence is that during the relevant period of his engagement from April 2007 until August 2008, Gillen spent minimal time restoring furniture. Instead, Gillen predominantly worked as a labourer performing demolition works and re-fitting, general labouring and maintenance work and some carpentry work.
84.For the above reasons, it should be accepted that the work performed by Gillen was covered by the 2000 Award for the relevant period of his engagement.
85.In relation to Lowery, Linkhill submits that he was "principally engaged as a Supervisor" and that all times when working at Flinders Lane he undertook "supervisor/project management duties and was not covered by an award". This submission is not consistent with its pleading that in or about July 2007, Lowery was engaged by it under a contract for services pursuant to which he was to perform building work for Linkhill. Further, the relevant period of engagement of Lowery is from 5 April 2007 (or alternatively 20 March 2007 as submitted by Linkhill) and Lowery's uncontroverted evidence is that he did not commence work as a Site Supervisor at the Flinders Lane site until about January 2008. Accordingly, for the period up until January 2008, the work performed by Lowery was covered by the 2000 Award.
86.Linkhill has submitted that the work performed by each of the workers was at the classification levels identified by the Director other than for Elliott and Lovell. Further, it does not identify any classification level for Lowery as it submits that he was not covered by the 2000 Award at all during the relevant period. If it is established that Lowery was covered by the 2000 Award for the relevant period up to January 2008, for the reasons set out in paragraphs 289 to 290 of the Director's Submissions, classification level CW(3) relevantly applied to him.
87.In relation to Elliott, Linkhill submits that the work he performed was at classification level CW(1)(c) and not CW(1)(d) as submitted by the Director. Linkhill does not provide any reasons or explanation as to why this is the case. Accordingly, for the reasons set out in paragraphs 287 to 288 and 367 to 368 of the Director's Submissions, classification level CW1 (d) relevantly applied to Elliott.
88.In relation to Lovell, Linkhill submits that the work he performed was at classification level CW(1)(c) and not CW(3) as submitted by the Director. Linkhill does not provide any reasons or explanation as to why this is the case. Accordingly, for the reasons set out in paragraphs 289 to 290 and 369 to 371 of the Director's Submissions, classification level CW(3) relevantly applied to Lovell.”
For the same reasons set out above I am persuaded the applicant’s contentions are made out. In relation to Mr Hunter, the applicant’s submissions also addressed the correct classification under the applicable industrial instruments.[787] However given the respondent’s concession, and in light of the conclusions reached earlier, this didn’t controversial.
[787] See para 430 to 445 and 450 to 461 of applicant’s submissions
Calculation of entitlements
The applicant’s submissions filed after the hearing on this issue were at paragraphs [259] to [538] inclusive, which in the vain hope of achieving some brevity to these reasons will not be expressly included herein.[788]
[788] See also amended statement of claim and amounts referred to therein as itemised at
The respondents submissions in relation to each of the workers were:
“Stephen Patrick Etheridge
95.Mr Etheridge was principally engaged as a bricklayer.
96.The Respondent concedes that should Mr Etheridge’s engagement be found to be a contract of service, then Mr Etheridge was employed as a casual employee, and the work he performed at Flinders Lane would fall within the coverage and application of the Building and Construction General On-site Award 2010 and the National Building and Construction Industry Award 2000. The work he performed was at the classification level of CW3.
97.The calculation of Mr Etheridge’s entitlements as a casual employee are found in Appendix 11.
Paul Gillen
98.Mr Gillen was principally engaged as a furniture restorer and performed work as such (Transcript 26 February 2013 P78 TT 44 and P76 TT 15 – TT 16 and TT 24 – TT 34).
99.It is not conceded that Mr Gillen’s principal engagement falls within the application of the National Building and Construction Industry Award 2000. Insofar as it is accepted that any work he performed at Flinders Lane was covered by the National Building and Construction Industry Award 2000, it is submitted that he performed that work as a casual employee. The work he performed was at the classification of CW(1)(c).
100.The calculation of any entitlements due to Mr Gillen pursuant to the Award are contained in Appendix 12.
Joel Brian Elliott
101.Mr Elliott was principally engaged as a labourer.
102.The Respondent concedes that should Mr Elliott’s engagement be found to be a contract of service, Mr Elliott was employed as a casual employee, and the work he performed at Flinders Lane would fall within coverage and application of the Building and Construction General On-site Award 2010 and the National Building and Construction Industry Award 2000. The work he performed was at the classification level of CW(1)(c).
103.The calculation of Mr Elliott’s entitlements as a casual employee are found in Appendix 13.
Nathan John Lovell
104.Mr Lovell was principally engaged as a labourer/carpenter.
105.The Respondent concedes that should Mr Lovell’s engagement be found to be a contract of service, Mr Lovell was employed as a casual employee, and the work he performed at Flinders Lane would fall within the coverage and application of the Building and Construction General On-site Award 2010 and the National Building and Construction Industry Award 2000. The work he performed was at the classification level of CW(1)(c).
106.The calculation of Mr Lovell’s entitlements as a casual employee are found in Appendix 14.
Matthew Donald Walker
107.Mr Walker was principally engaged as a labourer.
108.The Respondent concedes that should Mr Walker’s engagement be found to be a contract of service, Mr Walker was employed as a casual employee, and the work he performed at Flinders Lane would fall within the coverage and application of the Building and Construction General On-site Award 2010 and the National Building and Construction Industry Award 2000. The work he performed was at the classification level of CW1(c).
109.The calculation of Mr Walker’s entitlements as a casual employee are found in Appendix 15.
Alexander Najdoski
110.Mr Najdoski was principally engaged as a labourer.
111.The Respondent concedes that should Mr Najdoski’s engagement be found to be a contract of service, Mr Najdoski was employed as a casual employee, and the work he performed at Flinders Lane would fall within the coverage and application of the Building and Construction General On-site Award 2010 and the National Building and Construction Industry Award 2000. The work he performed was at the classification level of CW1(c).
112.The calculation of Mr Najdoski entitlements as a casual employee are found in Appendix 16.
113(sic) Robert John Hunter
114.Mr Hunter was principally engaged as an electrician.
115.The Respondent concedes that should Mr Hunter’s engagement be found to be a contract of service, Mr Hunter was employed as a casual employee, and the work he performed at Flinders Lane would fall within the coverage and application of the Metal Engineering and Associated Industries Award 1998 and the Manufacturing and Associated Industries and Occupations Award 2010. The work he performed was at the classification level of C10.
116.The calculation of Mr Hunter’s entitlements as a casual employee are found in Appendix 17.
Cyril Darrigrand
117.Mr Darrigrand was principally engaged as a Supervisor.
118.At no time was Mr Darrigrand covered by an award when performing work at Flinders Lane.
119.Mr Darrigrand was engaged as a casual employee and as a result had no entitlement to accrue or be paid annual leave.
120.The calculation of Mr Darrigrand’s entitlements as a casual employee are found in Appendix 18.
Ryan Lowery
121.Mr Lowery was principally engaged as a Supervisor.
122.At all times when working at Flinders Lane, Mr Lowery undertook supervisor/project management duties and was not covered by an award.
123.As Mr Lowery was engaged as a casual he was not entitled to accrue or be paid annual leave or personal leave.
124.The calculation of Mr Lowery’s entitlements as a casual employee are found in Appendix 19.
Julio Cabrera
125.Mr Cabrera was principally engaged as a welder.
126.The Respondent concedes that should Mr Cabrera’s engagement be found to be a contract of service, Mr Cabrera was employed as a casual employee, and the work he performed at Flinders Lane would fall within the coverage and application of the Building and Construction General On-site Award 2010 and the National Building and Construction Industry Award 2000. The work he performed was at the classification level of CW1(c).
127.The calculation of Mr Cabrera’s entitlements as a casual employee are found in Appendix 20.
128.All the raw data from which appendices 1 to 20 has been drawn is Appendix 21. Appendix 21 is a presentation of the timesheets of each employee, as tendered by the Applicant.”
A number of things need to be noted about those submissions. Firstly the respondent conceded the issue of the application of many of the industrial instruments to the workers but these concessions were limited to work done at a particular site. The respondent’s submissions also proceeded on the assumption (and basis) that its submission that the workers were casuals would find favour with the Court. Both of these submissions (and the respondent’s position on same) have been rejected for the reasons set out earlier.
There is also the problem to the extent that reference was made in those submissions to the appendices that were not in evidence and were not served on the applicant. Therefore little or no weight will be placed on them for the following reasons.
The applicant’s submissions about this were:
“Appendices regarding Hours of Work
13.In Part 2 of Linkhill Pty Ltd's Submissions Linkhill Pty Ltd refers to an Appendix for each worker (Appendices 1 to 10) which contains graphs that appear to identify the hours worked by the respective worker at The respondent's premises at 384-386 Flinders Lane, 401 Collins Street and "Other" locations. At paragraph 128, Linkhill Pty Ltd submits that all the raw data from which the Appendices have been drawn is Appendix 21 and that Appendix 21 is a presentation of the invoices submitted by each worker (as tendered by the Director).
14.The matters identified below indicate that the data contained in Appendices 1 to 10 and 21 is, to the extent that it can be understood, unreliable and misleading and should not be given any significant weight by the Court.
15.There are a number of discrepancies between the invoices tendered by the Director and the data contained in Appendix 21. These include, but are not limited to:
(a)with the exception of one week in December, the hours worked by Darrigrand in 2009 have not been recorded;
(b)the hours worked by Gillen between 10 January 2008 and 16 January 2008 have not been recorded.
16.These omissions are then reflected in Appendix 2, which relates to Gillen, and Appendix 8, which relates to Darrigrand.
17.There are also a number of discrepancies between the raw data contained in Appendix 21 and the data represented in Appendices 1 to 10. These discrepancies include that:
(a)the graphs representing the hours worked at Flinders Lane for each of the workers in Appendices 1 to 10 do not reflect the raw data in Appendix 21. For example the raw data in Appendix 21 provides that:
(i) between 1 July 2008 and 20 August 2008, Najdoski worked at Flinders Lane on 23 days, however, the graph representing the hours Najdoski worked at Flinders Lane (Appendix 6) provides that he only worked there on 9 days during that period;
(ii) in May 2008, Lovell worked at Flinders Lane on 22 days, however, the graph representing the hours Lovell worked at Flinders Lane (Appendix 4) provides that he only worked there on 3 days in May 2008;
(iii) between 16 May 2008 and 16 June 2008, Lowery worked at Flinders Lane on 23 days, however, the graph representing the hours Lowery worked at Flinders Lane (Appendix 9) provides that he only worked there on 5 days during that period;
(iv) after 14 December 2007, Gillen worked at Flinders Lane on 9 days, however, the graph representing the hours Gillen worked at Flinders Lane (Appendix 2) provides that he only worked there on 1 day after 14 December 2007.
(b)the periods that Najdoski was paid workers compensation through The respondent's workers compensation insurance policy are not reflected in Appendix 6, notwithstanding that the injuries were sustained by Najdoski while working for The respondent. This gives the impression that Najdoski did not work during this period by choice or for some other reason;
(c)the week that Lowery was absent from work on workers compensation in May 2009 has been included in the hours worked at "other locations". However, the injury was sustained by Lowery while working at Flinders Lane and Lowery returned to work at Flinders Lane following the injury. Again, this gives the impression that Lowery did not work during this period by choice or for some other reason. Further, to the extent that the work location is relevant (which the Director submits it is not), Linkhill Pty Ltd has allocated such hours of work to the incorrect work location;
(d)the week that Lowery was absent from work on sick leave in June 2010 has been included in the hours worked at "other locations". However, Lowery was working at Flinders Lane both before and after the period of sick leave. This gives the impression that Lowery did not work during this period by choice or for some other reason. Further, to the extent that the work location is relevant (which the Director submits it is not for the reasons set out in paragraphs 8 to 10 above), Linkhill Pty Ltd has allocated such hours of work to the incorrect work location.
18.In addition to the above discrepancies, Linkhill Pty Ltd has not provided any detailed explanation regarding the data contained in the Appendices and their relevance. There is no explanation about what (if anything) the various different coloured lines in the graphs in Appendices 1 to 10 represent nor is there any explanation as to why the graphs do not (it appears) reflect all the work performed by the respective workers at the locations identified. This lack of explanation and detail means that the graphs are unclear, confusing and difficult to understand.”
Not only were a substantial number of the appendices referred to in the respondent’s submissions neither filed or served, or if they were filed and served the appendices were filed outside of the directions for filing submissions but the appendices appear at best to be a selective extract from the evidence and the construct on which they were built (i.e. the workers were casuals) has been rejected. This and the matters raised by the applicant objecting to that material all (as was acknowledged by Counsel for the respondent in submissions before the Court) presented fundamental problems to that material being considered.
In clear distinction to this unsatisfactory approach the applicant had, prior to the trial, gone to the trouble of providing detailed calculations for each of the workers as schedules to the amended statement of claim.[789]
[789] These were schedules attached to the amended statement of claim and the basis for same was set out in the amended statement of claim
The applicant’s submissions addressed in considerable detail the breaches of the applicable provisions (as that term is defined in the WR Act and the FW Act). The respondent did not take issue or dispute the calculations in submissions, save as elsewhere set out in these reasons. The applicant’s submissions also addressed in considerable detail the relevant statutory provisions in relation to leave in respect of the workers at paragraphs [473] to [532]. Save for resisting a finding the workers were employees and not engaged on a casual basis no issue was taken with those submissions by the respondent.
In light of the conclusions reached earlier and as no argument has been sustained that these calculations by the applicant are wrong, declarations should be made that the amounts particularised in the statement of claim remain outstanding and there should be orders for the payment of same including any interest.[790]
[790] See fn 721
Conclusion
The amended application set out the declarations and orders sought.
The parties agree that issues as to penalty should be determined at a later date so they have the opportunity to put on evidence in relation to penalty and to make submissions in that respect.
Given this, it is appropriate that the applicant should have the opportunity to bring in proposed minutes of orders to give effect to these reasons including the appropriate declarations and monies owing to each worker (along with interest thereon) within 28 days.
The remainder of the proceedings should be adjourned to a directions hearing on a date to be fixed, to program the further conduct of the proceedings in relation to the penalty if any that should be imposed on the respondent for breaches of the WR Act, the FW Act and the industrial instruments referred to in these reasons for judgment. Therefore the matter will be listed for a directions hearing on a date to be fixed in February 2014.
I certify that the preceding three hundred and seventy-eight (378) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 20 December 2013
SCHEDULE ONE
PART ONE
SUMMARY OF CALCULATIONS - ALEX NAJDOSKI
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 29 May 2008 to 15 July 2010* |
| Award Classification | · CW(1)(c) |
| Award Hourly Rate of Pay (Base) | · $16.30 - 29 May 2008 to 28 September 2010* · $16.87 - 16 October 2008 to 30 June 2010* · $17.62 - 7 July 2010 to 15 July 2010* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $22.00 - 29 May 2008 to 8 January 2009* · $24.00 - 15 January 2009 to 1 October 2009* · $25.00 - 8 October 2009 to 15 July 2010* |
| Penalty Rates required to be applied (but not applied) | · Paid at 1.5 times Award Rate of Pay for first 2 hours and 2.0 times Award Rate of Pay thereafter. · All time worked after 12:00 pm on Saturday is paid at 2.0 times Award Rate of Pay. · Paid for hours worked beyond 8 hours per day and 38 hours per week and for time worked on weekends. |
| Crib Time required to be allowed (but not allowed) | · 20 minutes paid at applicable Award Rate of Pay - paid when overtime is worked on a Saturday or work on a Sunday after 4 hours work. · 30 minutes paid at applicable Award Rate of Pay for any further 4 hours worked. |
| Meal Allowance required to be paid (but not paid) | · $11.30 - 29 May 2008 to 28 September 2008* · $11.90 - 10 October 2008 to 15 July 2010* · Paid when 1.5 hours or more overtime is worked after ordinary hours. |
| Fares and Travel Allowance (FTA) required to be paid (but not paid) | · $16.50 per day. · Paid when employed on work located within a radius of 50km from Melbourne GPO. |
| Superannuation (OTE) required to be paid (but not paid) | · (Actual Wage + FTA) x 9% |
| Superannuation (Annual Leave) required to be paid (but not paid) | · Annual Leave Payment x 9% |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Award Rate of Pay (as at 15 July 2010) |
| Annual Leave Loading required to be paid (but not paid) | · 17.5% loading calculated on the Award Rate of Pay (as at 15 July 2010) and on FTA |
*Periods are based on week ending
SCHEDULE TWO
PART ONE
SUMMARY OF CALCULATIONS - CABRERA
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 18 March 2010 to 28 June 2010* |
| Award Classification | · CW(1)(c) |
| Award Hourly Rate of Pay (Base) | · $16.87 - 18 March 2010 to 28 June 2010* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $25.00 - 18 March 2010 to 28 June 2010* |
| Penalty Rates required to be applied (but not applied) | · Paid at 1.5 times Award Rate of Pay for first 2 hours and 2.0 times Award Rate of Pay thereafter. · All time worked after 12:00 pm on Saturday is paid at 2.0 times Award Rate of Pay. · Paid for hours worked beyond 8 hours per day and 38 hours per week and for time worked on weekends. |
| Meal Allowance required to be paid (but not paid) | · $11.90 - 18 March 2010 to 28 June 2010* · Paid when 1.5 hours or more overtime is worked after ordinary hours. |
| Fares and Travel Allowance (FTA) required to be paid (but not paid) | · $16.50 per day. · Paid when employed on work located within a radius of 50km from Melbourne GPO. |
| Superannuation (OTE) required to be paid (but not paid) | · (Actual Wage + FTA) x 9% |
| Superannuation (Annual Leave) required to be paid (but not paid) | · Annual Leave Payment x 9% |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Award Rate of Pay (as at 28 June 2010) |
| Annual Leave Loading required to be paid (but not paid) | · 17.5% loading calculated on the Award Rate of Pay (as at 28 June 2010) and on FTA |
| Redundancy / Severance Pay | · Hours accrued (as per clause 17.3 of the Award) x Award Rate of Pay (as at 28 June 2010) · Calculated on a pro rata basis. |
*Periods are based on week ending
SCHEDULE THREE
PART ONE
SUMMARY OF CALCULATIONS - LOVELL
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 12 July 2007 to 29 July 2010* |
| Award Classification | · CW(3) |
| Award Hourly Rate of Pay (Base) | · $17.85 - 12 July 2007 to 27 September 2007* · $18.12 - 4 October 2007 to 25 September 2008* · $18.69 - 2 October 2008 to 20 June 2010* · $19.52 - 7 July 2010 to 29 July 2010* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $22.00 - 12 July 2007 to 6 September 2007* · $25.00 - 13 September 2007 to 24 July 2008* · $26.00 - 31 August 2008 to 1 October 2009* · $28.00 - 8 October 2009 to 29 July 2010* |
| Penalty Rates required to be applied (but not applied) | · Paid at 1.5 times Award Rate of Pay for first 2 hours and 2.0 times Award Rate of Pay thereafter. · All time worked after 12:00 pm on Saturday is paid at 2.0 times Award Rate of Pay. · Paid for hours worked beyond 8 hours per day and 38 hours per week and for time worked on weekends. |
| Crib Time required to be allowed (but not allowed) | · 20 minutes paid at applicable Award Rate of Pay - paid when overtime is worked on a Saturday or work on a Sunday after 4 hours work. · 30 minutes paid at applicable Award Rate of Pay for any further 4 hours worked. |
| Meal Allowance required to be paid (but not paid) | · $10.90 - 12 July 2007 to 27 September 2007* · $11.30 - 2 October 2008 to 25 September 2008* · $11.90 - 2 October 2008 to 29 July 2010* · Paid when 1.5 hours or more overtime is worked after ordinary hours. |
| Fares and Travel Allowance (FTA) required to be paid (but not paid) | · $15.40 per day - 12 July 2007 to 25 September 2008* · $16.50 per day - 2 October 2008 to 29 July 2010* · Paid when employed on work located within a radius of 50km from Melbourne GPO. |
| Superannuation (OTE) required to be paid (but not paid) | · (Actual Wage + FTA) x 9% |
| Superannuation (Annual Leave) required to be paid (but not paid) | · Annual Leave Payment x 9% |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Award Rate of Pay (as at 29 July 2010) |
| Annual Leave Loading required to be paid (but not paid) | · 17.5% loading calculated on the Award Rate of Pay (as at 29 July 2010) and on FTA |
| Redundancy / Severance Pay | · Hours accrued (as per clause 17.4 of the Award) x Award Rate of Pay (as at 29 July 2010) · Calculated on a pro rata basis. |
*Periods are based on week ending
SCHEDULE FOUR
PART ONE
SUMMARY OF CALCULATIONS - WALKER
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 7 January 2010 to 15 July 2010 |
| Award Classification | · CW(1)(c) |
| Award Hourly Rate of Pay (Base) | · $16.87 - 7 January 2010 to 23 June 2010* · $17.47 - 8 July 2010 to 14 July 2010* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $25.00 - 7 January 2010 to 14 July 2010* |
| Penalty Rates required to be applied(but not applied) | · Paid at 1.5 times Award Rate of Pay for first 2 hours and 2.0 times Award Rate of Pay thereafter. · All time worked after 12:00 pm on Saturday is paid at 2.0 times Award Rate of Pay. · Paid for hours worked beyond 8 hours per day and 38 hours per week and for time worked on weekends. |
| Crib Time required to be allowed (but not allowed) | · 20 minutes paid at applicable Award Rate of Pay - paid when overtime is worked on a Saturday or work on a Sunday after 4 hours work. · 30 minutes paid at applicable Award Rate of Pay for any further 4 hours worked. |
| Meal Allowance required to be paid (but not paid) | · $11.90 - 7 January 2010 to 14 July 2010* · Paid when 1.5 hours or more overtime is worked after ordinary hours. |
| Fares and Travel Allowance (FTA) required to be paid (but not paid) | · $16.50 per day - 7 January 2010 to 14 July 2010* · Paid when employed on work located within a radius of 50km from Melbourne GPO. |
| Superannuation (OTE) required to be paid (but not paid) | · (Actual Wage + FTA) x 9% |
| Superannuation (Annual Leave) required to be paid (but not paid) | · Annual Leave Payment x 9% |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Award Rate of Pay (as at 15 July 2010) |
| Annual Leave Loading required to be paid (but not paid) | · 17.5% loading calculated on the Award Rate of Pay (as at 15 July 2010) and on FTA |
| Redundancy / Severance Pay | · Hours accrued (as per clause 17.4 of the Award) x Award Rate of Pay (as at 15 July 2010) · Calculated on a pro rata basis. |
*Periods are based on week ending
SCHEDULE FIVE
PART ONE
SUMMARY OF CALCULATIONS - ETHEREDGE
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 12 February 2009 to 15 July 2010 |
| Award Classification | · CW(3) |
| Award Hourly Rate of Pay (Base) | · $18.69 - 12 February 2009 to 30 June 2010* · $19.52 - 7 July 2010 to 15 July 2010* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $25.00 - 12 February 2009 to 15 July 2010* |
| Penalty Rates required to be applied (but not applied) | · Paid at 1.5 times Award Rate of Pay for first 2 hours and 2.0 times Award Rate of Pay thereafter. · All time worked after 12:00 pm on Saturday is paid at 2.0 times Award Rate of Pay. · Paid for hours worked beyond 8 hours per day and 38 hours per week and for time worked on weekends. |
| Crib Time required to be allowed (but not allowed) | · 20 minutes paid at applicable Award Rate of Pay - paid when overtime is worked on a Saturday or work on a Sunday after 4 hours work. · 30 minutes paid at applicable Award Rate of Pay for any further 4 hours worked. |
| Meal Allowance required to be paid (but not paid) | · $11.90 - 12 February 2009 to 15 July 2010* · Paid when 1.5 hours or more overtime is worked after ordinary hours. |
| Fares and Travel Allowance (FTA) required to be paid (but not paid) | · $16.50 per day - 12 February 2009 to 15 July 2010* · Paid when employed on work located within a radius of 50km from Melbourne GPO. |
| Superannuation (OTE) required to be paid (but not paid) | · (Actual Wage + FTA) x 9% |
| Superannuation (Annual Leave) required to be paid (but not paid) | · Annual Leave Payment x 9% |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Award Rate of Pay (as at 15 July 2010) |
| Annual Leave Loading required to be paid (but not paid) | · 17.5% loading calculated on the Award Rate of Pay (as at 15 July 2010) and on FTA |
| Redundancy / Severance Pay | · Hours accrued (as per clause 17.4 of the Award) x Award Rate of Pay (as at 15 July 2010) · Calculated on a pro rata basis. |
*Periods are based on week ending
SCHEDULE SIX
PART ONE
SUMMARY OF CALCULATIONS - ELLIOT
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 19 February 2009 to 15 July 2010* |
| Award Classification | · CW(1)(c) |
| Award Hourly Rate of Pay (Base) | · $16.87 - 19 February 2009 to 30 June 2010* · $17.62 - 7 July 2010 to 15 July 2010* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $23.00 - 19 February 2009 to 7 May 2009* · $25.00 - 13 May 2009 to 8 October 2009* · $27.00 - 15 October 2009 to 15 July 2010* |
| Penalty Rates required to be applied (but not applied) | · Paid at 1.5 times Award Rate of Pay for first 2 hours and 2.0 times Award Rate of Pay thereafter. · All time worked after 12:00 pm on Saturday is paid at 2.0 times Award Rate of Pay. · Paid for hours worked beyond 8 hours per day and 38 hours per week and for time worked on weekends. |
| Crib Time required to be allowed (but not allowed) | · 20 minutes paid at applicable Award Rate of Pay - paid when overtime is worked on a Saturday or work on a Sunday after 4 hours work. · 30 minutes paid at applicable Award Rate of Pay for any further 4 hours worked. |
| Meal Allowance required to be paid (but not paid) | · $11.90 - 12 February 2009 to 15 July 2010* · Paid when 1.5 hours or more overtime is worked after ordinary hours. |
| Fares and Travel Allowance (FTA) required to be paid (but not paid) | · $16.50 per day - 12 February 2009 to 15 July 2010* · Paid when employed on work located within a radius of 50km from Melbourne GPO. |
| Superannuation (OTE) required to be paid (but not paid) | · (Actual Wage + FTA) x 9% |
| Superannuation (Annual Leave) required to be paid (but not paid) | · Annual Leave Payment x 9% |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Award Rate of Pay (as at 15 July 2010) |
| Annual Leave Loading required to be paid (but not paid) | · 17.5% loading calculated on the Award Rate of Pay (as at 15 July 2010) and on FTA |
| Redundancy / Severance Pay | · Hours accrued (as per clause 17.4 of the Award) x Award Rate of Pay (as at 15 July 2010) · Calculated on a pro rata basis. |
*Periods are based on week ending
SCHEDULE SEVEN
PART ONE
SUMMARY OF CALCULATIONS - LOWERY
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | Award Covered: · 5 April 2007 to 3 January 2008* Non-Award Covered: · 10 January 2008 to 15 July 2007* |
| Award Classification | · CW(3) |
| Award Hourly Rate of Pay (Base) | · $17.85 - 5 April 2007 to 27 September 2007* · $17.62 - 4 October 2007 to 3 January 2008* |
| Actual Hourly Rate of Pay Paid by the Respondent | Award Covered Period: · $27.00 - 5 April 2007 to 2 August 2007* · $30.00 - 9 August 2007 to 3 January 2008* Non-Award Covered Period: · $30.00 - 10 January 2008 to 24 July 2008* · $35.00 - 31 July 2008 to 15 July 2010* |
| Penalty Rates required to be applied (but not applied) | Award Covered Period Only: · Paid at 1.5 times Award Rate of Pay for first 2 hours and 2.0 times Award Rate of Pay thereafter. · All time worked after 12:00 pm on Saturday is paid at 2.0 times Award Rate of Pay. · Paid for hours worked beyond 8 hours per day and 38 hours per week and for time worked on weekends. |
| Crib Time required to be allowed (but not allowed) | Award Covered Period Only: · 20 minutes paid at applicable Award Rate of Pay - paid when overtime is worked on a Saturday or work on a Sunday after 4 hours work. · 30 minutes paid at applicable Award Rate of Pay for any further 4 hours worked. |
| Meal Allowance required to be paid (but not paid) | Award Covered Period Only: · $10.90 - 5 April 2007 to 27 September 2007* · $11.30 - 4 October 2007 to 3 January 2008* · Paid when 1.5 hours or more overtime is worked after ordinary hours. |
| Fares and Travel Allowance (FTA) required to be paid (but not paid) | Award Covered Period Only: · $15.40 per day - 5 April 2007 to 3 January 2008* · Paid when employed on work located within a radius of 50km from Melbourne GPO. |
| Superannuation (OTE) required to be paid (but not paid) | Award Covered Period Only: · (Actual Wage + FTA) x 9% |
| Superannuation (Annual Leave) required to be paid (but not paid) | Award Covered Period Only: · Annual Leave Payment x 9% |
| Annual Leave Payment required to be paid (but not paid) | Award Covered Period: · Hours accrued x Actual Rate of Pay (as at 15 July 2010) |
| Annual Leave Loading required to be paid (but not paid) | Award Covered Period Only: · 17.5% loading calculated on the Award Rate of Pay (as at 3 January 2008) and on FTA |
*Periods are based on week ending
SCHEDULE EIGHT
PART ONE
SUMMARY OF CALCULATIONS - HUNTER
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 19 July 2007 to 22 April 2010* |
| Award Classification | · C10 |
| Award Hourly Rate of Pay (Base) | · $16.30 - 19 July 2007 to 13 September 2007* · $16.57 - 11 October 2007 to 11 September 2008* · $17.14 - 9 October 2007 to 22 April 2010* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $35.00 - 19 July 2007 to 22 April 2010* |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Award Rate of Pay (as at 22 April 2010) |
| Annual Leave Loading required to be paid (but not paid) | · 17.5% loading calculated on the Award Rate of Pay (as at 22 April 2010) |
*Periods are based on month ending
SCHEDULE NINE
PART ONE
SUMMARY OF CALCULATIONS - GILLEN
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 5 April 2007 to 20 August 2008 |
| Award Classification | · CW(1)(c) |
| Award Hourly Rate of Pay (Base) | · $16.03 - 5 April 2007 to 26 April 2007* · $16.30 - 3 May 2007 to 20 August 2008* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $30.00 - 5 April 2007 to 20 August 2008 |
| Penalty Rates required to be applied (but not applied) | · Paid at 1.5 times Award Rate of Pay for first 2 hours and 2.0 times Award Rate of Pay thereafter. · All time worked after 12:00 pm on Saturday is paid at 2.0 times Award Rate of Pay. · Paid for hours worked beyond 8 hours per day and 38 hours per week and for time worked on weekends. |
| Crib Time required to be allowed (but not allowed) | · 20 minutes paid at applicable Award Rate of Pay - paid when overtime is worked on a Saturday or work on a Sunday after 4 hours work. · 30 minutes paid at applicable Award Rate of Pay for any further 4 hours worked. |
| Meal Allowance required to be paid (but not paid) | · $10.90 - 5 April 2007 to 19 April 2007* · $11.30 - 26 April 2008 to 20 August 2008* · Paid when 1.5 hours or more overtime is worked after ordinary hours. |
| Fares and Travel Allowance (FTA) required to be paid (but not paid) | · $15.40 per day - 5 April 2007 to 20 August 2008* · Paid when employed on work located within a radius of 50km from Melbourne GPO. |
| Superannuation (OTE) required to be paid (but not paid) | · (Actual Wage + FTA) x 9% |
| Superannuation (Annual Leave) required to be paid (but not paid) | · Annual Leave Payment x 9% |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Award Rate of Pay (as at 20 August 2008) |
| Annual Leave Loading required to be paid (but not paid) | · 17.5% loading calculated on the Award Rate of Pay (as at 20 August 2008) and on FTA |
| Redundancy / Severance Pay | · Hours accrued (as per clause 17.4 of the Award) x Award Rate of Pay (as at 20 August 2008) · Calculated on a pro rata basis. |
*Periods are based on week ending
SCHEDULE TEN
PART ONE
SUMMARY OF CALCULATIONS - DARRIGRAND
| Entitlement | Description / Method of Calculation |
| Relevant Period of Service | · 5 July 2007 to 12 August 2010* |
| Actual Hourly Rate of Pay Paid by the Respondent | · $28.00 - 5 July 2007 to 13 September 2007* · $30.00 - 20 September 2007 to 12 August 2010* |
| Annual Leave Payment required to be paid (but not paid) | · Hours accrued x Actual Rate of Pay (as at 12 August 2010) |
*Periods are based on week ending
see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 per Wilson and Dawson JJ at
p.37.1
[775] Defence, paras 3(a), (b).
It is important to note that as a result of the classification structure set out in clause 18.1.1 of the 2000 Award only containing classification levels CW1(c) and CW1(d) the references in clause 19.3.1(a) of the 2000 Award to classification levels CW1(a) and CWI(b) no longer apply.
In addition, the requirement that classification level CW1(c) applies to workers after 12 months in the industry also no longer applies as this would mean that workers with less than 12 months in the industry would not be covered by any classification level.
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