Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2)
[2018] FCCA 2299
•24 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v A TO Z CATERING SOLUTION PTY LIMITED & ANOR (No.2) | [2018] FCCA 2299 |
| Catchwords: INDUSTRIAL LAW – Whether applicant has proved contraventions of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth) alleged in statement of claim – whether applicant has proved director involved in contraventions – whether proof of involvement in contraventions of award requires knowledge of existence of award as opposed to knowledge of facts that give rise to liability under the award – principles concerning involvement in another person’s contraventions discussed. INDUSTRIAL LAW – EVIDENCE – Whether judicial notice may be taken of the contents of an award or of other industrial instruments. |
| Legislation: Club Employees (State) Award Competition and Consumer Act 2010 (Cth) |
| Cases cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 Giorgianni v R (1985) 156 CLR 473 Johnson v Youden [1950] 1 K.B.544 Jones v Dunkel (1959) 101 CLR 298 Mathai v Nelson [2012] FCA 1448 Mid-North Electricity Company Limited v Rutherford [1927] SASR 273 Potter v Fair Work Ombudsman [2014] FCA 187 Ramsay v Pigram (1968) 118 CLR 271 Richardson and Wrench (Holdings) Pty Ltd v LigonNo 174 Pty Ltd [1994] FCA 1222 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 Tomlison v Ramsay Food Processing Pty Ltd [2015] HCA 28 Transport Industries Insurance Company v Longmuir [1997] 1 VR 125 Yorke v Lucas (1985) 158 CLR 661 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | A TO Z CATERING SOLUTION PTY LIMITED (ACN 155 365 370 ) |
| Second Respondent: | MOHAMMED MOSEEM YASIN |
| File Number: | SYG 3448 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 7, 8, 21 February 2017 & 5 April 2017 |
| Date of Last Submission: | 19 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Easton |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Respondents: | Mr I Latham |
| Solicitors for the Respondents: | Segelov Taylor Lawyers |
IN RELATION TO THE CAUSES OF ACTION PLEADED AGAINST THE SECOND RESPONDENT THE COURT DECLARES THAT:
The first respondent engaged in the conduct identified in the first column of the Schedule to these orders (Schedule) in contravention of the provisions of the Fair Work Act 2009 (Cth) (FW Act) and the Fair Work Regulations 2009 (Cth) (Regulations) identified in the second column of the Schedule.
The second respondent was involved in the first respondent’s contraventions referred to in declaration 1 identified in the third column of the Schedule.
THE COURT ORDERS THAT:
The matter be listed for directions at a date to be fixed for the purpose of the Court being informed of what further declarations or orders the parties submit should be made against the first respondent or the second respondent having regard to the findings made in the reasons for judgment on the basis of which declarations 1 and 2 have been made, and to set the matter down for hearing on the question of penalties.
SCHEDULE
| Contravening conduct | Contraventions | Involvement of second respondent | Paragraph in judgment |
| For the week ending on 7 July 2013 the first respondent (AZC) paid Mr Biasio $780 on account of wages, but failed to pay or pay in full Mr Biasio: a. $57.21 for the first two hours of overtime, Monday to Friday Span at time and a half; b. $438.61 for overtime, Monday to Friday Span at double time; c. $66.74 for 2 hours overtime, Saturday Span at time and three quarters; and d. $343.26 for 9 hours overtime, Saturday Span at double time. | The conduct was contrary to cl.28.2 of the Registered and Licensed Club Award 2010 (Award), and therefore the conduct contravened s.45 of Fair Work Act 2009 (Cth) (FW Act). | Not established | 103(a) 104 310 |
| For the week ending on 14 July 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: a. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; b. $114.42 for 3 hours overtime, Monday to Friday Span at double time; c. $66.74 for 2 hours overtime, Saturday Span at time and three quarters; and d. $362.33 for 9.5 hours overtime, Saturday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(b) 104 310 |
| For the week ending on 21 July 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: a. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; b. $152.56 for 4 hours overtime, Monday to Friday Span at double time; c. $66.74 for 2 hours overtime, Saturday Span at time and three quarters; and d. $343.26 for 9 hours overtime, Saturday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(c) 104 310 |
| For the week ending on 28 July 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: a. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; b. $190.70 for 5 hours overtime, Monday to Friday Span at double time; and c. $400.47 for 10.5 hours overtime, Sunday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(d) 104 310 |
| For the week ending on 4 August 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: a. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; b. $171.63 for 4.5 hours overtime, Monday to Friday Span at double time; and c. $400.47 for 10.5 hours overtime, Sunday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(e) 104 310 |
| For the week ending on 11 August 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: a. $167.80 being the 5.5 (non-overtime) hours on Sunday; and b. $190.70 for 5 hours overtime, Sunday Span at double time. | The conduct was contrary to cl.28.2 of Award and, in the case of the failure to pay the $167.80 for the 5.5 (non-overtime) on Sunday, contrary to cl.29 of the Award, and therefore the conduct contravened s.45 of the FW Act. | Not established | 103(f) 104 310 |
| For the week ending on 18 August 2013 AZC paid Mr Biasio $740 on account of wages; but failed to pay or pay in full Mr Biasio: a. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; b. $133.49 for 3.5 hours overtime, Monday to Friday Span at double time; and c. $400.47 for 10.5 hours overtime, Sunday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(g) 104 310 |
| In September 2013 AZC paid Mr Biasio $250, but failed to pay to Mr Biasio in full $410 for 21.5 hours ordinary time. | The conduct was contrary to cl.17.1 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(h) 104 310 |
| Once in each of the 21 weeks during the period from 19 July 2013 to December 2013 AZC paid to Ms Abdulofski $250 for at least 25 hours’ worth of work performed in each week; but AZC failed to pay to Ms Abdulofski: a. for the 25 hours she performed each week an amount calculated by applying the minimum award rate of $17.78 per hour; b. at least 9 hours’ worth of Late Work for the weeks ending 3 and 10 November 2013; c. in each of the weeks ending 3 and 10 November 2013 amounts calculated at the rate of $24.89 per hour for the total of 8 hours of Saturday work Ms Abdulofski performed; and d. in each of the weeks ending 3 and 10 November 2013 amounts calculated at the rate of $28.29 per hour for the total of 15 hours of Sunday work Ms Abdulofski performed. | The conduct was contrary to cl.17.1 and cl.29 of Award and therefore the conduct contravened s.45 of FW Act. | Established | 121 122 306(e) |
| Once in each of the weeks during: a. the period from 1 October 2013 to 30 January 2014 AZC paid to Ms Chalker an amount for work performed calculated by multiplying the hours she worked by the rate of $20 per hour; b. the period from 1 February 2014 to 17 April 2014 AZC paid to Ms Chalker an amount for work performed calculated by multiplying the hours she worked by the rate of $18 per hour; but: c. AZC failed to pay to Ms Chalker in each of the weeks it made a payment to her an amount calculated by applying the minimum rate of $21.87 per hour provided for by the Award to the number of hours Ms Chalker worked; d. AZC failed to pay Ms Chalker the penalty rate loading for the 11.5 hours she worked on Saturdays, and the penalty rate loading for the 3 hours she worked on a Sunday; and e. AZC failed to pay Ms Chalker any penalty rate loading for the 20 hours of work she performed over Good Friday, Easter Saturday or Easter Sunday. | The conduct was contrary to cl.17.1 and cl.29 of the Award and therefore contravened s.45 of the FW Act. | Established | 132 133 306(e) |
| Once in each of the 16 weeks during the period from 1 July 2013 to 3 November 2013 AZC paid to Ms P Fulmer an amount for work performed calculated by multiplying the hours she worked by the rate of $20 per hour; but AZC failed to pay to Ms P Fulmer in each of the weeks it made a payment to her: a. in relation to ordinary hours worked in that week an amount calculated by applying the minimum rate of $21.87 per hour provided for by the Award to the number of ordinary hours worked in that week; b. in relation to hours worked on a Saturday an amount calculated by applying the minimum rate of $25.35 per hour provided for by the Award to the number of hours worked on a Saturday; and c. in relation to hours worked on a Sunday an amount calculated by applying the minimum rate of $28.85 per hour provided for by the Award to the number of hours worked on a Sunday. | The conduct was contrary to cl.17.1 and cl.29 of the Award and therefore contravened s.45 of the FW Act | Established | 142 143 306(e) |
| Once in each of the 5 weeks during the period from 9 July 2013 to 16 August 2013 AZC paid Ms Busby an amount for 22.5 hours work performed calculated by multiplying the hours she worked by the rate of $20 per hour; but AZC failed to pay to Ms Busby an amount calculated by applying the minimum rate of $21.87 per hour provided for by the Award to the number of ordinary hours worked in that week. | The conduct was contrary to cl.17.1 of the Award and therefore contravened s.45 of the FW Act. | Established | 146 147 306(e) |
| AZC failed to reimburse Ms Chalker $60 being the amount Ms Chalker paid to acquire a shirt AZC required her to wear while working. | The conduct was contrary to cl.18.1 of the Award and therefore contravened s.45 of the FW Act. | Established | 163 317 |
| AZC failed to make superannuation contributions in relation to Mr Biasio. | The conduct was contrary to cl.23.2 of the Award and therefore contravened s.45 of the FW Act. | Established | 168 321 |
| AZC failed to make superannuation contributions in relation to Ms Chalker. | The conduct was contrary to cl.23.2 of the Award and therefore contravened s.45 of the FW Act. | Established | 173 321 |
| AZC failed to make superannuation contributions in relation to Ms P Fulmer. | The conduct was contrary to cl.23.2 of the Award and therefore contravened s.45 of the FW Act. | Established | 175 321 |
| AZC failed to make superannuation contributions in relation to Ms Busby. | The conduct was contrary to cl.23.2 of the Award and therefore contravened s.45 of the FW Act. | Established | 177 321 |
| AZC failed to pay to Mr Biasio accrued annual leave or a 17.5% loading on the accrued annual leave. | The conduct was contrary to: a. s.90 of the FW Act and therefore contravened s.44(1) of the FW Act; and b. cl.30.3 of the Award and therefore contravened s.45 of the FW Act. | Established | 185 325 |
| AZC failed to pay to Ms Abdulofski accrued annual leave and a 17.5% loading on the accrued annual leave. | The conduct was contrary to: a. s.90 of the FW Act and therefore contravened s.44(1) of the FW Act; and b. cl.30.3 of the Award and therefore contravened s.45 of the FW Act. | Established | 187 325 |
| AZC failed to pay Ms Abdulofski money in lieu of notice. | The conduct was contrary to s.117(2) of the FW Act and therefore contravened s.44(1) of the FW Act. | Not established | 194 326 |
| AZC failed to provide written notice of termination of employment to each of Mr Biasio and Ms Abdulofski. | The conduct was contrary to s.117(1) of the FW Act and therefore contravened s.44(1) of the FW Act. | Not established | 198 327 |
| AZC failed to provide to each of Mr Biasio, Ms P Fulmer, Ms Chalker, Ms K Fulmer, Ms Abdulofski, Ms Polsen, and Ms Busby a Fair Work Information Sheet. | The conduct was contrary to s.125 of the FW Act and therefore contravened s.44(1) of the FW Act. | Established | 202 332 |
| AZC deducted $60 from the wages of Ms Chalker. | The conduct contravened s.323(1)(a) of the FW Act. | Established | 206 333 |
| AZC failed to provide to each of Mr Biasio, Ms P Fulmer, Ms K Fulmer, Ms Chalker, Ms Polsen, Ms Abdulofski, Ms Busby, and Ms Sparks a payslip within one working day of each day on which they were paid an amount on account of their wages. | The conduct contravened s.536 of the FW Act. | Established | 214 337 |
| AZC failed to make and keep records in relation to its employees of the sort required to be kept by reg.3.33, reg.3.34, and reg.3.36 of the FW Regulations. | The conduct contravened s.535 of the FW Act. | Established | 239 242 340 |
| AZC failed to ensure that a record it was required to keep under the FW Act and FW Regulations was not false or misleading | The conduct contravened reg.3.44(1) of the Fair Work Regulations 2009 (Cth) (FW Regulations). | Established | 247 248 251 346 |
| AZC made use of an employee record AZC was required to keep under the FW Act or the FW Regulations knowing the entry was false or misleading. | The conduct contravened reg.3.44(6) of the FW Regulations | Established | 248 251 346 |
| AZC dismissed Ms Chalker from her employment because Ms Chalker exercised a “workplace right” as that expression is defined in s.341(1)(c) of the FW Act. | The conduct contravened s.340 of the FW Act. | Involvement not alleged | 266 |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3448 of 2014
| FAIR WORK OMBUDSMAN |
Applicant
And
| A TO Z CATERING SOLUTION PTY LIMITED (ACN 155 365 370 ) |
First Respondent
| MOHAMMED MOSEEM YASIN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the applicant (FWO) alleges that during the period commencing on 1 July 2013 and ending on 23 April 2014 (relevant period) the first respondent (AZC) contravened a number of provisions of the Fair Work Act 2009 (Cth) (FW Act) and of the Fair Work Regulations 2009 (Cth) (FW Regulations), and that the second respondent, Mr Yasin, was involved in those contraventions. The contraventions are alleged to have occurred in relation to one or more of a number of persons whom the FWO alleges AZC employed during the relevant period (Employees).
The FWO alleges AZC engaged, and Mr Yasin was involved, in the following contravening conduct:
a)contrary to s.45 of the FW Act AZC failed to pay the Employees their full entitlements under the Registered and Licensed Club Award 2010 (Award), being the award the FWO alleges applied to AZC and the Employees during the relevant period;
b)contrary to s.45 of the FW Act AZC failed to reimburse two Employees amounts they spent to acquire clothing AZC required the two Employees to wear during their employment but instead, contrary to s.323 of the FW Act, AZC deducted these amounts from wages due to the two Employees;
c)contrary to s.45 of the FW Act AZC failed to pay to five of the Employees superannuation contributions to avoid liability to pay a superannuation guarantee charge under the Superannuation Guarantee (Administration) Act 1992 (Cth);
d)contrary to s.44 of the FW Act AZC failed to pay to three Employees their accrued annual leave entitlements together with loading when they ended their employment with AZC;
e)contrary to s.44 of the FW Act AZC failed to provide one of the Employees sufficient notice of her termination or make a payment in lieu of notice;
f)contrary to s.117(2) and, therefore, s.44(1) of the FW Act AZC failed to provide to two of the Employees written notice of the day of termination of their employment;
g)contrary to s.125 and, therefore, s.44(1) of the FW Act AZC failed to give to all but one of the Employees a Fair Work Information Statement before or as soon as practicable after that Employee commenced his or her employment with AZC;
h)contrary to s.323 of the FW Act AZC made unauthorised deductions from wages due to two of the Employees;
i)contrary to s.340(1) of the FW Act AZC took adverse action against one of the Employees;
j)contrary to s.536(1) of the FW Act AZC failed to give a payslip to each of the Employees within one working day of paying the Employee;
k)contrary to s.535(1) of the FW Act AZC failed to make and keep employee records of the kind required by the FW Regulations;
l)contrary to reg.3.44(1) of the FW Regulations AZC failed to ensure that documents it kept were not false or misleading; and
m)contrary to reg.3.44(6) of the FW Regulations AZC made use of false records.
The FWO has identified in a statement of claim the contravening conduct it alleges AZC and Mr Yasin engaged in. AZC filed points of defence in which it admits most of the contravening conduct alleged in the statement of claim.[1] Mr Yasin also filed a document that is described as “Points of Defence”. That document, however, is not in truth a defence because it says nothing more than that Mr Yasin “exercises his privilege against penalty and does not plead to each paragraph”.
[1] These admissions may be of limited practical consequence because in written submissions filed after the hearing on behalf of Mr Yasin, it was stated AZC has gone into administration.
Course of hearing and issues
In the course of final address it became apparent the FWO was proceeding on the assumption that the FWO was not obliged to prove the matters alleged in the statement of claim that had been admitted by AZC in its defence, even though Mr Yasin had elected not to plead to any of the allegations made in the statement of claim, including those which AZC admitted in its defence. In other words the FWO assumed that the admissions AZC made in its points of defence were or ought to be treated as admissions by Mr Yasin. I indicated to counsel for the FWO that I had difficulty accepting that admissions made by AZC in its defence were binding on or could be treated as admissions by Mr Yasin.
It was not open to the FWO to assume she did not have to prove as against Mr Yasin those parts of the statement of claim AZC had admitted. The causes of action based on contraventions of the FW Act and the FW Regulations the FWO pleads against AZC are distinct from the causes of action the FWO pleads against Mr Yasin. That is so even though each of the elements of the causes of action under the FW Act and the FW Regulations the FWO pleads against AZC are also elements of the causes of action under the FW Act and the FW Regulations the FWO pleads against Mr Yasin. The FWO does not allege, and counsel for the FWO did not submit, that Mr Yasin was privy in interest with AZC such that admissions AZC made in its points of defence bind Mr Yasin.[2] In those circumstances Mr Yasin’s having asserted his right to claim privilege against exposure to penalty means the FWO has the burden of proving as against Mr Yasin all of the allegations made in the statement of claim, including those that AZC has admitted.
[2] For a discussion of the notion of “privy in interest” see Tomlison v Ramsay Food Processing Pty Ltd [2015] HCA 28 and, in particular, at [17] referring to Barwick CJ’s observation in Ramsay v Pigram (1968) 118 CLR 271 at 279 that “the basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy”.
Because the FWO assumed that in her case against Mr Yasin the FWO could rely on the admissions AZC made in its defence, the FWO’s outline of closing submissions did not address the evidence on which the FWO relies in relation to the many allegations made in the statement of claim that AZC admits. In particular the FWO’s outline of closing submissions did not address how the rates the statement of claim alleged were payable to the Employees under the Award were arrived at, how the number of hours each Employee is alleged in the schedules to the statement of claim to have worked were calculated, how the times and days on which it is alleged in the schedules to the statement of claim the Employees worked were determined, and how other amounts – such as the superannuation guarantee charge for each of the relevant Employees and the amounts of accrued annual leave – were calculated. Nor did counsel for the FWO address these matters in closing submissions.
In the course of my discussing with counsel for the FWO whether it was open to the FWO to rely on AZC’s admissions in her case against Mr Yasin, counsel informed me he believed the evidence the FWO had already tendered established each of the allegations made in the statement of claim. At the end of the hearing, therefore, I directed the FWO file and serve a schedule which identifies each contravention of the FW Act (and the FW Regulations) AZC admits it engaged in and, in relation to each such contravention, the evidence the FWO submits establishes that contravention. I also directed that the respondents may, if they so wish, file any submission in response to such schedule. The FWO filed a schedule (Schedule of Evidence of Contraventions), and Mr Yasin filed submissions in reply.
Another issue arose, this time after the hearing; and this related to a submission counsel for Mr Yasin made in response to the Schedule of Evidence of Contraventions about my ability to inform myself of the terms of the Award. Counsel submitted I could not inform myself of the terms of the Award because I could only do so if evidence of the terms of Award were tendered and admitted, but no such evidence was tendered or admitted. The matter was listed before me on 5 April 2017 to hear submissions about whether I could take judicial notice of the Award, and of the licence “Rules Club Wagga Wagga” was alleged to have held under the Liquor Act 2007 (NSW).
In the course of the hearing on 5 April 2017 it also became apparent there was a degree of complexity surrounding the determination of the minimum rates the statement of claim alleged were payable under the Award in relation to each of the Employees (alleged Award rates). That complexity arises from the alleged Award rates being derived from a State award. The determination of the correct rates payable under the Award, therefore, requires the identification and understanding of the relevant transitional provisions under the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act), and the identification of the determinations by wage setting tribunals that are relevant to the derivation of the alleged Award rates.
At the conclusion of the hearing I directed the FWO to file and serve a document identifying the documents that are accessible on the website of the Fair Work Commission which the FWO submits establishes the alleged Award rates. The FWO filed a document titled “Outline of Instruments Underpinning the Australian Pay and Classification Scale Derived for the Club Employees (State) Award and rates Alleged in the Statement of Claim”. That document not only identifies what it submits are the relevant instruments; it also attempts to explain the steps by which the alleged Award rates were derived from the State award, having regard to the instruments and determinations the document identifies.
The upshot is that each allegation made in the statement of claim, including the derivation of the alleged Award rates, is in issue between the FWO and Mr Yasin. In these reasons for judgment, therefore, I consider whether, on the evidence before me, the FWO has proved on the balance of probabilities that AZC engaged in the contravening conduct alleged in the statement of claim, whether or not the alleged conduct has been admitted by AZC, and whether Mr Yasin was involved in that conduct. These reasons, therefore, are arranged as follows:
a)First, I set out the allegations of fact made in the statement of claim.
b)Second, I consider whether I can or should take judicial notice of the terms of the Award and the contents of other instruments and documents.
c)Third, I consider whether the alleged Award rates are the rates that were payable to each Employee under the Award.
d)Fourth, I consider the evidence in relation to each alleged contravention of the FW Act and the FW Regulations by AZC.
e)Fifth, I consider the evidence in relation to Mr Yasin’s alleged involvement in those contraventions of the FW Act and the FW Regulations by AZC in which the FWO alleges Mr Yasin was involved.
The statement of claim
The statement of claim sets out the following alleged facts.
a)The operations of AZC during the relevant period, the Employees, and the persons involved in the management of AZC’s operations.
b)The duties each of the Employees performed during the relevant period.
c)The industrial instrument that applied to AZC’s employment of the Employees, namely, the Award.
d)The alleged Award rates payable to each of the Employees during the relevant period.
e)The extent to which AZC underpaid each of the Employees during the relevant period.
f)AZC failing to reimburse two Employees for acquiring clothing AZC required the Employees to wear.
g)AZC’s terminating the employment of one of the Employees without giving that Employee one week’s notice or payment in lieu of that notice.
h)AZC’s failure to provide to two of the Employees written notice of the day of termination of their employment.
i)AZC’s failure to provide a Fair Work Information Statement to all but one of the Employees before or as soon as practicable after each Employee commenced his or her employment with AZC.
j)AZC taking adverse action against one of the Employees.
k)AZC deducting amounts out of wages payable to two of the Employees.
l)AZC’s failure to provide payslips.
m)AZC’s failure to keep employment records.
n)AZC’s making and keeping false records.
o)AZC’s making use of false records.
p)Mr Yasin’s involvement in AZC’s contraventions.
I will set out the material allegations made in the statement of claim under each of these headings. For ease of expression I will not preface each alleged fact I set out below with the word “alleged” or “allegedly”, it being understood that what I set out in the remaining section of these reasons are the allegations made in the statement of claim, none of which is admitted by Mr Yasin. It should also be understood that each of the matters I set out in the next section is alleged to have occurred during the relevant period.
AZC and Mr Yasin’s management of AZC
AZC operated a catering business that was contracted to supply labour to the Riverina Australian Football Club Limited in Wagga Wagga, New South Wales (Rules Club).[3] Mr Yasin was the sole director, and one of three shareholders of AZC. He was responsible for the overall direction, management, and supervision of AZC, including decisions concerning AZC’s employees.[4]
[3] SOC, [2(e)]
[4] SOC, [4]
The Employees and their positions
AZC employed the Employees whose names, period of employment, and positions were as follows:
Name[5]
Period of employment[6]
Position/duties[7]
Robert Biasio
01.07.13 – 20.08.13
Cook, fulltime
Kylie Polsen[8]
01.07.13 – 14.09.13[9]
Cook, fulltime
Kylie Polsen
15.09.13 - 08.02.14[10]
Cook, casual
Sally Abdulofski
19.07.13 – 08.12.13
Cook, part-time
Meghan Chalker
01.10.13 – 23.04.14
Waitperson, casual
Pauline Fulmer
01.07.13 – 03.11.13
Waitperson, casual
Kathleen Busby
05.07.13 – 04.10.13
Waitperson, casual
Marney Sparks
Nov.2013 – 20.04.2014
Waitperson, casual
Kayla Fulmer
Jul.2013 – Dec.2013
Waitperson, casual
[5] SOC, [2(f)]
[6] SOC, [2(f)]
[7] SOC, [5]-[22]
[8] In the statement of claim the name “Polson” and “Polsen” are both used. In these reasons I use “Polsen”.
[9] SOC, [7]
[10] SOC, [8]
Award coverage
The Award covered AZC, and it applied to AZC and the Employees. As a consequence:[11]
a)Mr Biasio and Ms Polsen each performed the duties of a “Cook (tradesperson) grade 3” as defined in subclause C.3.6 of Schedule C to the Award;[12]
b)Ms Abdulofski performed the duties of a “Cook grade 1” as defined in subclause C.3.4 of Schedule C to the Award;[13] and
c)Ms Chalker, Ms P Fulmer, Ms Busby, Ms Sparks, and Ms K Fulmer each performed the duties of a “Food and beverage attendant grade 2” as defined in subclause C.2.2 of Schedule C to the Award.[14]
[11] SOC, [24]
[12] SOC, [25]
[13] SOC, [26]
[14] SOC, [27]
The rates payable under the Award
The Award required AZC to pay the Employees amounts at the following rates for ordinary hours worked from Monday to Friday:
Name
Fulltime/part-time
Rate per hour
Robert Biasio
Fulltime
$19.07[15]
Kylie Polsen
Fulltime
$19.07[16]
Kylie Polsen
Casual
$23.84[17]
Sally Abdulofski
Part-time
$17.78[18]
Meghan Chalker
Casual
$21.87[19]
Pauline Fulmer
Casual
$21.87[20]
Kathleen Busby
Casual
$21.87[21]
Marney Sparks
Casual (Nov.2013 – 21.02.14)
$14.81[22]
Marney Sparks
Casual (22.02.14 – 20.04.14)
$16.62[23]
[15] SOC, [28(a)]
[16] SOC, [28(b)]
[17] SOC, [30]
[18] SOC, [29]
[19] SOC, [31]
[20] SOC, [31]
[21] SOC, [31]
[22] SOC, [32(a)]
[23] SOC, [32(b)]
Clause A7.3 of the Award required AZC to pay the following Employees who worked ordinary hours on Saturdays 120% of the applicable minimum wage rate as follows:[24]
[24] SOC, [52]. In the submission titled “Calculation of Saturday, Sunday and Public Holiday Penalty Rates Alleged in Statement of Claim”, at [2], the FWO submits the 120% alleged in paragraph 51 of the statement of claim is incorrect, and that the correct rate is 140%, and it is on the basis of this rate that the amounts stated in paragraph 52 of the statement of claim have been calculated.
Name
Period for which rates apply
Rate per hour for Saturdays
Kylie Polsen
Financial year starting 01.07.13 (fulltime period)
$26.69
Kylie Polsen
Financial year starting 01.07.13 (casual period)
$27.65
Sally Abdulofski
Financial year starting 01.07.13
$24.89
Meghan Chalker
Financial year starting 01.07.13
$25.37
Pauline Fulmer
Financial year starting 01.07.13
$25.37
Kathleen Busby
Financial year starting 01.07.13
$25.37
Marney Sparks
22.02.14 – 20.04.14
$19.27
Clause A.7.3 of the Award required AZC to pay the following Employees who worked ordinary hours on Sundays at 140% of the applicable minimum wage rate as follows:[25]
[25] SOC, [60]. In the submission titled “Calculation of Saturday, Sunday and Public Holiday Penalty Rates Alleged in Statement of Claim”, at [4], the FWO submits the 140% alleged in paragraph 59 the statement of claim is incorrect, and that the correct rate is 160%, and it is on the basis of this rate that the amounts stated in paragraph 60 of the statement of claim have been calculated.
Name
Period for which rates apply
Rate per hour for Sundays
Robert Biasio
Financial year starting 01.07.13
$30.51
Sally Abdulofski
Financial year starting 01.07.13
$28.44
Meghan Chalker
Financial year starting 01.07.13
$28.87
Pauline Fulmer
Financial year starting 01.07.13
$28.87
Kathleen Busby
Financial year starting 01.07.13
$28.87
Clause A.7.3 of the Award required AZC to pay the following Employees who worked ordinary hours on a public holiday at 200% of the applicable minimum wage rate as follows:[26]
[26] SOC, [68]. In the submission titled “Calculation of Saturday, Sunday and Public Holiday Penalty Rates Alleged in Statement of Claim”, at [6], the FWO submits the 200% alleged in the statement of claim is incorrect, and that the correct rate is 120%, and it is on the basis of this rate that the amounts stated in paragraph 68 of the statement of claim have been calculated.
Name
Public holiday worked
Period for which rates apply
Rate per hour for public holidays
Sally Abdulofski
07.10.13
Financial year starting 01.07.13
$39.11
Meghan Chalker
18, 19, 20, 21 April 2014
Financial year starting 01.07.13
$39.36
Marney Sparks
01.01.14
From Nov.2013 to 21.02.14
$26.66
Clause A.7.3 of the Award required AZC to pay Employees an additional penalty of $1.52 per hour, being 8% of the standard hourly rate for ordinary hours worked between 7.00 pm and midnight Monday to Friday (Late Work).[27]
[27] SOC, [75], [76]
Clause 28.2 of the Award required AZC to pay fulltime cooks overtime rates as follows (overtime rates):
a)for Monday to Friday, time and a half for the first two hours and double time after the first two hours (Monday to Friday Span);
b)for midnight Friday to midnight Saturday (Saturday Span), time and three quarters for the first two hours and double time after the first two hours; and
c)for midnight Saturday to midnight Sunday (Sunday Span), double time for all time worked;
and, for the financial year starting on 1 July 2013, the rates for time and half, time and three quarters, and double time were the rates were $28.60, $33.37, and $38.13 respectively.[28]
[28] SOC, [82]-[84]
Failure to pay full amounts under Award
AZC failed to pay amounts it was required by the Award to pay to the Employees for ordinary hours worked Monday to Friday:
a)Mr Biasio worked 21.5 ordinary hours as a cook, as a consequence of which AZC was required to pay him a total of $410.01. AZC, however, paid Mr Biasio a total of $250, which was $160.01 less than what AZC was required to pay him.[29]
b)Ms Abdulofski worked 295 ordinary hours as a cook, as a consequence of which AZC was required to pay her a total of $5,245.10. AZC, however, paid Ms Abdulofski a total of $2,950, which was $2,295.10 less than what AZC was required to pay her.[30]
c)Ms Polsen worked 270.05 casually loaded ordinary hours as a cook, as a consequence of which AZC was required to pay her a total of $6,446.02. AZC, however, paid Ms Polsen a total of $5,410, which was $1,036.02 less than what AZC was required to pay her.[31]
d)Ms Chalker, Ms P Fulmer, and Ms Busby worked 93, 300, and 62.75 casually loaded ordinary hours as food and beverage attendants respectively, as a consequence of which AZC was required to pay them a total of $2,033.91, $6,561, and $1,372.34 respectively. AZC, however, paid Ms Chalker, Ms P Fulmer, and Ms Busby $1,860, $6,000, and $1,197.53 respectively, which was $173.91, $561, and $174.81 less than the amounts AZC required to pay them respectively.[32]
[29] SOC, [35], [37], [38], [39], [40], Sch.1
[30] SOC, [36], [37], [38], [39], [41], Sch.1
[31] SOC, [43], [45] - [50] Sch.2
[32] SOC, [44] - [50]- Sch.2
AZC failed to pay amounts it was required by the Award to pay to the Employees for ordinary hours worked on Saturdays as follows:[33]
[33] SOC, [53] - [58], Sch.3
Name
Hours worked
Entitlement
Amount paid
Underpayment
Kylie Polsen (fulltime period)
104.5
$2,789.11
$2,337.72
$451.39
Kylie Polsen (casual period)
40
$1,106.00
$800.00
$306.00
Sally Abdulofski
31.5
$784.04
$315.00
$469.04
Meghan Chalker
11.5
$291.76
$230.00
$61.76
Pauline Fulmer
45
$1,141.65
$900.00
$241.65
Kathleen Busby
29.5
$748.42
$558.84
$189.58
Marney Sparks (after 22.02.14)
17.5
$337.23
$314.00
$23.23
AZC failed to pay amounts it was required by the Award to pay to the Employees for ordinary hours worked on Sundays as follows:[34]
[34] SOC, [59] - [66], Sch. 4
Name
Hours paid
Entitlement
Amount paid
Underpayment
Robert Biasio
5.5
$167.81
$107.09
$60.72
Sally Abdulofski
154.5
$4,393.98
$1,545.00
$2,848.98
Meghan Chalker
5
$144.35
$100.00
$44.35
Pauline Fulmer
45
$1,299.15
$900.00
$399.15
Kathleen Busby
12
$346.44
$218.63
$127.81
AZC failed to pay amounts it was required by the Award to pay to the Employees for ordinary hours worked on public holidays as follows:[35]
[35] SOC, [67] - [74], Sch. 5
Name
Hours paid
Entitlement
Amount paid
Underpayment
Sally Abdulofski
3.5
$136.89
$35.00
$101.89
Meghan Chalker
32.5
$1,279.20
$705.00
$574.20
Marney Sparks
4.5
$119.97
$90.00
$29.97
AZC failed to pay amounts it was required by the Award to pay to the Employees for Late Work as follows:[36]
[36] SOC, [75] - [81], Sch. 6
Name
Hours of Late Work
Entitlement
Robert Biasio
59.5
$90.44
Kylie Polsen (fulltime period)
82.5
$125.40
Sally Abdulofski
9
$13.68
Meghan Chalker
11
$16.72
Kathleen Busby
32.25
$49.02
AZC failed to pay to those Employees who were fulltime cooks overtime rates as follows:[37]
a)Mr Biasio worked a total of 16.5 hours, 26.5 hours, 6 hours, 27.5 hours, and 36.5 hours respectively for the first two hours of overtime worked on Monday to Friday, after the first two hours of overtime on Monday to Friday, the first two hours overtime during the Saturday Span, after the first two hours of overtime during the Saturday Span, and all hours worked during the Sunday Span. As a consequence, AZC was required to pay Mr Biasio amounts totalling $471.90, $1,010.45, $200.22, $1,048.56, and $1,391.75 respectively for that work, but it failed to do so.
b)Ms Polsen worked during the fulltime period a total of 0.5 hours, 5 hours, 9 hours, and 90 hours respectively for the first two hours of overtime on Monday to Friday, the first two hours overtime during the Saturday Span, after the first two hours of overtime during the Saturday Span, and all hours worked on the Sunday span. As a consequence, AZC was required to pay Ms Polsen amounts totalling $14.30, $166.85, $343.17, and $3,431.70 for that work, but it failed to do so.
[37] SOC, [82] - [88], Sch. 7
Unauthorised deductions from wages
Under cl.18.1(b)(ii) of the Award, AZC was required to reimburse any employee for the costs of purchasing clothing which AZC required the employee to wear.[38] In around January 2014 AZC required Ms Sparks and Ms Chalker to wear a special item of clothing, namely a shirt embroidered with the words “Rules Club” (Rules Club shirt).[39] AZC deducted $60 from the wages paid to Ms Sparks and Ms Chalker but, contrary to cl.18.1(b)(ii) of the Award, and hence s.45 of the FW Act, AZC failed to reimburse Ms Sparks and Ms Chalker for the cost of purchasing the Rules Club shirts.[40]
[38] SOC, [90]
[39] SOC, [91], [92]
[40] SOC, [90] – [98]
Failure to pay superannuation
Clause 23.2 of the Award required AZC to make such superannuation contributions to a superannuation fund for the benefit of the Employees to avoid AZC from being required to pay the superannuation guarantee charge under superannuation legislation.[41] AZC failed to make such contributions for the following Employees:[42]
[41] SOC, [99]
[42] SOC, [101], Sch. 8
Name
Ordinary time paid
Superannuation payable
Robert Biasio
$5,470.00
$505.95
Kylie Polsen (fulltime position
$9,350.00
$864.88
Kylie Polsen (casual position)
$5,970.00
$552.23
Meghan Chalker
$2,175.00
$201.19
Pauline Fulmer
$7,700.00
$712.25
Kathleen Busby
$1,475.00
$136.44
Failure to pay accrued annual leave on termination
This part of the statement of claim is directed to Mr Biasio, Ms Polsen (during her fulltime period of work), and Ms Abdulofski. It is alleged that these three Employees ended their employment with AZC on 20 August 2013, on 8 February 2014, and on 8 December 2013, respectively.[43] On the days Mr Biasio, Ms Polsen, and Ms Abdulofski ended their employment with AZC, they each had accrued annual leave by operation of s.87(2) of the FW Act. Under s.90(2) of the FW Act AZC was required to pay to Mr Biasio, Ms Polsen, and Ms Abdulofski the amount that would have been payable to them had they taken their accrued but untaken annual leave. That included a loading of 17.5% as required by cl.30.3 of the Award.[44] The amounts AZC was required to pay each of Mr Biasio, Ms Polsen, and Ms Abdulofski when they ended their employment were $444.52 (together with a loading of $77.80), $611.38 (together with a loading of $106.99), and $740.36 (together with a loading of $129.56) respectively.[45] Contrary to s.44 of the FW Act, AZC did not pay these amounts due to Mr Biasio, Ms Polsen, and Ms Abdulofski.[46]
[43] SOC, [105]
[44] SOC, [107]
[45] SOC, [108] - [110], Sch. 9
[46] SOC, [111]
Failure to make payment in lieu of notice
This part of the statement of claim relates to Ms Abdulofski, and may be summarised as follows:[47]
a)On a Friday in December 2013 Mr Ben Kaylock, the head chef of AZC, gave Ms Abdulofski verbal notice that her employment would be terminated following her shift on the following Sunday.
b)Ms Abdulofski worked her normal hours for the remainder of the week and ceased her employment with AZC at the end of her shift on Sunday.
c)At the time she was given the verbal notice, Ms Abdulofski had worked for AZC for a continuous period of less than one year.
d)Under s.117(2) of the FW Act Ms Abdulofski was entitled to be given at least one week’s notice or payment in lieu of notice of at least the amount AZC would have been liable to pay Ms Abdulofski for the hours she would have worked had her employment continued until the end of the minimum notice period.
e)According to her normal pattern of work, had Ms Abdulofski continued to work until the end of the minimum notice period she would have worked at least an additional 13 ordinary hours at the ordinary casual loading rate provided for by the Award, and would have earned $231.14.
f)AZC did not pay to Ms Abdulofski at least $231.14 in lieu of notice and, thus, contravened s.44 of the FW Act.
[47] SOC, [114] - [121]
Failure to provide written notice of termination
This part of the statement of claim relates to Mr Biasio and Ms Abdulofski. It alleges that AZC terminated the employment of Mr Biasio and Ms Abdulofski on 20 August 2014 and in December 2013 respectively but without giving them, as it was required to do under s.117(1) of the FW Act, written notice of the day of the termination.[48]
[48] SOC, [122] - [126]
Failure to provide Fair Work Information Statement
AZC failed to provide to all but one of the Employees, as it was required to do under s.125(1) of the FW Act, a Fair Work Information Statement on or as soon as practicable after the Employees started their employment with AZC.[49]
[49] SOC, [127] - [130]
Failure to pay wages in full to employees
This part of the statement of claim relates to the allegation that AZC deducted from the amounts due to Ms Chalker and to Ms Sparks amounts of $60 which represented the costs of the Rules Club shirts AZC required Ms Chalker and Ms Sparks to wear; and it relies on s.323 and s.324 of the FW Act. Subsection 323(1) of the FW Act relevantly provides that an employer must pay an employee amounts payable to the employee in relation to the performance of work in full, except as provided by s.324.[50]
[50] SOC, [131]-[135]
Adverse action
This part of the statement of claim relates to Ms Chalker, and may be summarised as follows:
a)From about 1 February 2014 to 21 April 2014 Ms Chalker was rostered to work an average of 20 hours per week, with her hours being primarily performed on a Friday, Saturday, or Sunday.[51]
b)On or around 6 April 2014 Ms Chalker made a complaint or an inquiry in relation to her entitlement to being paid penalty rates, such complaint or inquiry having been made by Ms Chalker writing the words “weekend rates???” on her “Time and Pay Sheet”; and that such complaint or inquiry related to her employment and thus constituted the exercise by Ms Chalker of a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act.[52]
c)Between 21 April 2014 and 23 April 2014, Mr Kaylock offered Ms Chalker that if she agreed to “go off the books” again, she would be paid a higher hourly rate, but without “weekend rates”, and no tax, but Ms Chalker refused the offer.[53] Ms Chalker’s refusal constituted a complaint or inquiry in relation to her employment, and that constituted the exercise by Ms Chalker of a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act.[54]
d)After the last-mentioned conversation, AZC reduced Ms Chalker’s rostered hours for the Anzac Day long weekend of 2014 from 11 hours to 3 hours;[55] and AZC did not roster Ms Chalker to work any further shifts after 24 April 2014.[56] These matters injured Ms Chalker in her employment, or constituted an alteration in Ms Chalker’s position to her prejudice, and thus constituted AZC’s taking adverse action against Ms Chalker.[57]
e)AZC took the adverse action against Ms Chalker because she made the complaints and inquiries in relation to her employment referred to above, and thus because of or for a reason that included her exercising workplace rights.
f)By taking adverse action because, or for reasons that included Ms Chalker’s exercising a workplace right, AZC contravened s.340 of the FW Act.
[51] SOC, [138]
[52] SOC, [139], [140]
[53] SOC, [141]
[54] SOC, [142]
[55] SOC, [144]
[56] SOC, [145]
[57] SOC, [146], [148], [149]
Failure to provide payslips
AZC did not provide to any of the Employees payslips it was required by s.536(1) of the FW Act to provide.[58] The effect of AZC’s defence is to put these matters in issue.[59]
[58] SOC, [152] - [155]
[59] POD, [25]-[28]
Failure to keep employment records
AZC did not, as it was required to do by s.535(1) of the FW Act, make and keep employee records of the kind specified by the FW Regulations. In particular:
a)AZC did not, as it was required to do by reg.3.33(1) of the FW Regulations, keep a record setting out the rate of remuneration at which each of the Employees were paid, including the gross and net amounts paid, and any deductions made from the gross amounts;[60]
b)AZC did not, as it was required to do by reg.3.34 of the FW Regulations, make records of the number of overtime hours worked by the fulltime cooks (these being Mr Biasio and Ms Polsen during her period);[61] and
c)AZC did not, as it was required to do by reg.3.36(1) of the FW Regulations, make records of the annual leave taken by Mr Biasio, Ms Polsen, and Ms Abdulofski, and the balance of their entitlement to annual leave.[62]
[60] SOC, [157], [161]
[61] SOC, [158], [160]
[62] SOC, [159], [160]
Making, keeping, and using false records
The allegations made in this part of the statement of claim may be summarised as follows:
a)On or about 17 January 2014 an inspector employed by the FWO (FWI Bodkin) requested AZC provide to the FWO employee records, including payroll advice records, payslips, and attendance records from 1 December 2013 to 17 January 2014.[63]
b)On or before 4 February 2014 AZC made and kept “Time and Pay Advices” for Ms Chalker for the weeks ending 8 and 15 December 2013, and 19 January 2014; for Ms Sparks for the week ending 8 January 2014; and for Ms K Fulmer for the weeks ending 8 and 15 December 2013 (Weekend Rate Records).[64]
c)The Weekend Rate Records were false and misleading because they recorded that each of Ms Chalker, Ms Sparks, and Ms K Fulmer were paid at the rate of $30 per hour whereas in truth they were each paid at the rate of $20 per hour; and because they did not specify the correct gross and net amounts paid to Ms Chalker, Ms Sparks and Ms K Fulmer.[65]
d)Mr Yasin knew the Weekend Rate Records were false and misleading.[66]
e)Further, AZC provided the Weekend Rate Records to FWI Bodkin, and by doing so AZC, with the knowledge of Mr Yasin, made use of the false information contained in those records.[67]
[63] SOC, [165]
[64] SOC, [166]
[65] SOC, [166], [167], [168]
[66] SOC, [170]
[67] SOC, [172] - [176]
Accessorial liability of Mr Yasin
The statement of claim does not allege Mr Yasin engaged in the specific conduct that it alleges constitutes AZC’s contraventions of the FW Act. The statement of claim instead alleges that Mr Yasin performed particular functions in the management of AZC in general, and in the management of AZC’s dealings with its employees and the FWO; and that he performed various tasks. These include the following:[68]
a)Mr Yasin was responsible for the management and control of AZC’s business, including its overall direction, management, and supervision.
b)Mr Yasin made decisions on behalf of AZC’s business, or was ultimately responsible for AZC’s decisions in relation to the recruitment or engagement of employees, the terms and conditions on which such employees would be engaged, and the payments made to such employees.
c)Mr Yasin was identified in the “Employer Information Form” dated 24 January 2014 as the authorised contact for AZC, and the person who was authorised to make changes to or update information on behalf of AZC.
d)Mr Yasin signed the “Training Contracts” and tax file declarations of AZC.
e)Mr Yasin was the person with whom the FWO dealt during the course of her investigations of AZC, and who provided records and information to the FWO on behalf of AZC.
[68] SOC, [179]
The statement of claim also alleges that Mr Yasin had knowledge of a number of matters including the following:[69]
a)The Employees were employed by AZC.
b)AZC “was award regulated”.
c)Mr Yasin was obliged to find out what award or industrial instrument covered the Employees, and that the Award covered AZC and applied to the Employees.
d)From time to time some of the Employees worked ordinary hours on Saturdays, Sundays, public holidays, Late Hours, and hours in excess of 38 hours per week.
e)The amounts that AZC paid to the Employees.
f)From or around January 2014 some Employees were required to wear the Rules Club shirt.
[69] SOC, [180]
On the basis of these allegations the statement of claim alleges Mr Yasin was engaged in every contravention of the FW Act in which AZC engaged, except s.340 of the FW Act.[70]
[70] SOC, [181]
Judicial notice of Award and other information
As I noted at the beginning of these reasons, at the conclusion of the hearing I directed the FWO file and serve a schedule identifying the evidence for each of the contraventions of the FW Act AZC admitted it contravened; and the FWO filed and served the Schedule of Evidence of Contraventions. The first set of allegations made in the statement of claim for which that schedule sought to identify the evidence are those made in paragraphs 2(e), 2(f), 3, and 24 of the Statement of Claim:
2.The First Respondent is and was at all material times:
. . .
(e)the operator of a catering business, which during the Contravention Period was contracted to supply labour to the Riverina Australian Football Club Limited (ABN 43 000 753 604) (Rules Club), located at corner Fernleigh & Glenfield Roads Wagga Wagga NSW 2650;
(f)the entity that employed [the Employees]
. . .
3.At all relevant times the Rules Club held a club licence under the Liquor Act 2007 (NSW)
. . .
24. At all relevant times during the Contravention Period:
(a)The First Respondent was covered by the Registered and Licensed Club Award 2010 (Modern Award); and
(b)The Modern Award applied to the First Respondent and the Employees.
PARTICULARS
A. Pursuant to section 49 of the FW Act and subclause 2.1 of the Modern Award, the Modern Award commenced on 1 January 2010.
B. Pursuant to subsections 47(1) and 48(1) of the FW Act, a modern award applies to an employer if it is expressed to cover the employer, the modern award is in operation and no other provision of the FW Act provides or has the effect that the modern award does not cover the employer.
C. Subclause 4.1 of the Modern Award sets out the coverage of the Modern Award as follows:
The Modern Award covers employers of employees engaged in the performance of all or any work in or in connection with or for clubs registered or recognised under State, Territory or Commonwealth legislation and their employees in the classifications within Schedule C – Classification Definitions.
D. The term ‘club’ is defined in subclause 3.1 of the Modern Award as follows:
Club means any club which is registered and licensed under the provisions of relevant State or Commonwealth Statutes (Liquor and/or Gaming Acts, Associations’ Incorporation Acts or Corporations Acts) and which is established and operates on a not-for-profit basis for the benefit of members and the community.
E. By reason of the matters pleaded in paragraphs 2(e) and 3 above, at all relevant times the First Respondent’s catering business at the Rules Club operated “in or in connection with or for clubs”.
F. By reason of the matters pleaded in paragraphs 5 to 22, when the Employees performed work for the First Respondent at the Rules Club they fell within the scope of the classification structure provided at Schedule C of the Modern Award.
Counsel for Mr Yasin filed and served written submissions in response to the Schedule of Evidence of Contraventions. Counsel submitted that although there was in evidence what appeared to be a copy of the Award, that copy was out of date and provided the Court no assistance in determining the obligations the Award imposed during the relevant period.[71] In the remainder of Mr Yasin’s written submissions it was submitted there was not before the Court evidence of the Award. That led to the matter being relisted before me and, on 5 April 2017, I heard submissions on three matters.
[71] Submissions of the respondent on evidence on the contraventions relevant to the second respondent, [4]-[5].
The first matter was whether, as the FWO submitted, it was open to me to take judicial notice of the Award either under s.143 or s.144 of the Evidence Act 1995 (Cth) (Evidence Act). The second matter was whether I would take judicial notice that the Rules Club held a licence under the Liquor Act 2007 (NSW). The third matter related to the rates each of the Employees was entitled to be paid under the Award. The rates themselves are not apparent on the face of the Award. Instead, they have been derived through a number of steps, the starting point of which, as will appear later in these reasons, is the Club Employees (State) Award, being an award made by the Industrial Relations Commission of New South Wales and which was later renamed the NSW Club Employees (State) Award (State Clubs Award). The question that arose in relation to this third matter is whether I could take judicial notice under s.144 of the Evidence Act of the contents of the underlying instruments and other documents on the basis of which the rates stated in the statement of claim are alleged to have been derived from the State Clubs Award and from other instruments and wage setting tribunals. In this section of my reasons I will deal with the first two matters. The third matter requires more detailed consideration, and, for that reason, will be dealt with in a separate section headed “Minimum wage rates payable under the Award”.
Judicial notice of Award
Counsel for Mr Yasin submitted that the contents of the Award needed to be proved like any other document. Counsel relied on the judgment of the Full Court of the Supreme Court of South Australia in Mid-North Electricity Company Limited v Rutherford.[72] That was an appeal from a judgment refusing an action for wages which were said to have been payable under an award made under the Conciliation and Arbitration Act 1904-1926 (Cth) (CC Act). Section 91 of the CC Act provided for the proof of an award made under that Act by tendering a sealed or certified copy of the award; but the purported award on which the plaintiff in Rutherford relied was not sealed or certified. Napier J, delivering the judgment of the Court, held that the purported award was not evidence of any award made under the CC Act.
[72] [1927] SASR 273
The decision in Rutherford is not relevant to the question of whether I may take judicial notice of the Award. In Rutherford Napier J noted there was no “statutory provision which enables the Court to take judicial notice of the award”; but in the case before me the FWO submits there are statutory provisions that permit me to take judicial notice of the Award, namely s.143 and s.144 of the Evidence Act. I need only refer to s.144(1) of the Evidence Act which provides as follows:
Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
Counsel for the FWO referred me to s.168(1) of the FW Act which provides that if the Fair Work Commission (FWC) makes a determination under Part 2.3 or Part 2.6 of the FW Act varying a modern award, the FWC must publish the award as soon as practicable; and under s.168(2) of the FW Act, the publication may be on the FWC’s website or by any other means the FWC considers appropriate.
At the hearing I suggested to counsel for Mr Yasin that I go off the bench and I myself access the FWC website for the purpose of determining whether I could access the Award (and also documents relevant to whether AZC held a licence under the Liquor Act 2007 (NSW)). There being no objection, I did as I proposed and after 51 minutes I resumed the hearing holding a hard copy of the Award and other documents that I had accessed and downloaded from the FWC website during the short adjournment. When I resumed the hearing I informed the parties that the time I had taken was not due to any slow internet connection or difficulty in locating the documents, but in collating the documents that were accessed.[73] I then marked the various documents for identification, including the Award, which I marked “MFI2”.
[73] T12.30 (05.04.2017)
On the basis of these matters, including s.168 of the FW Act, I am of the opinion that knowledge about the contents of Award is not reasonably open to question, and that such knowledge is capable of verification by reference to MFI2, the authority of which cannot reasonably be questioned. In those circumstances it was not necessary for the FWO to tender a document or any other evidence to prove the terms of the Award; and that it is open to me to inform myself of the contents of the Award by reference to MFI2.
MFI2 is the version of the Award that was current at the time of the hearing before me. The version of the Award that is relevant to the proceeding before me is the version that existed during the relevant period. As was noted by counsel for the FWO, [74] the FWC does not maintain on its website historical versions of modern awards. The FWC maintains on its website, however, determinations it has made from time to time. There is already in evidence, however, an earlier version of the Award dated 18 February 2011.[75] I will infer that terms that are expressed in identical terms in both the 18 February 2011 version of the Award and the MFI2 version of the Award existed as terms of the Award during the relevant period. For ease of expression I will refer to the Award in the present tense, it being understood that I am concerned with the Award as it applied during the relevant period.
Judicial notice Rules Club held licence under Liquor Act 2007(NSW)
[74] Outline of Instruments Underpinning the Australian Pay and Classification Scale Derived from the Club Employees (State) Award and Rates Alleged in Statement of Claim, [11], [12, n.11]
[75] Exhibit DL1, behind tab 49
I undertook a similar exercise about whether the Rules Club held a licence under the Liquor Act 2007 (NSW). During the short adjournment I accessed a website known as “Service NSW” and, after clicking a number of web links came to a page headed “Liquor Licence” which states as follows:
CURRENT
RIVERINA AUSTRALIAN FOOTBALL CLUB LIMITED
RIVERINA AUSTRALIAN FOOTBALL CLUB LTD
No. LIQC300231496
START: >> END:
03/08/1973 N/A
I arranged hard copies of the documents to be made and, when I resumed the hearing, marked the documents “MFI6”. On the basis of these matters, there can be no doubt that MFI6 is a copy of the records maintained in relation to the licensing of persons under the Liquor Act 2007 (NSW), that the authority of MFI6 as a true copy of those records to the extent they relate to the Rules Club cannot reasonably be questioned; and that those records verify knowledge that the Rules Club was registered under the Liquor Act 2007 (NSW).
Even if I were not entitled to take judicial notice of the matters I accessed from the “Service NSW” website, I would have inferred from the evidence before me - which shows that AZC provided food catering services in the Rules Club throughout the relevant period - that the Rules Club held a license under the Liquor Act 2007 (NSW). The basis of that inference would be that the Rules Club would not have been permitted to operate without a licence.
Minimum wage rates payable under the Award
The statement of claim alleges that during the relevant period the Award required particular hourly rates be paid to particular classes of employees (these being the “alleged Award rates” to which I referred at the beginning of these reasons); and that the Employees fell into one of three classes of persons provided for by the Award. Mr Biasio and Ms Polsen are each alleged to have been a “Cook (tradesperson) Grade 3”,[76] Ms Abdulofski is alleged to have been a “Cook Grade 1”,[77] and each of Ms Chalker, Ms P Fulmer, Ms Busby, and Ms Sparks is alleged to have been a “Food and beverage attendant grade 2”.[78] The statement of claim alleges there were six minimum hourly wage rates payable under the Award in relation to these classifications: $19.07 per hour for ordinary hours worked on a Monday to a Friday for a “Cook (tradesperson) grade 3”;[79] $17.78 per hour for ordinary hours worked on a Monday to a Friday for a “Cook grade 1”;[80] a casually loaded minimum hourly rate of $23.84 for ordinary hours worked on a Monday to a Friday for a “Cook (tradesperson) grade 3”;[81] a casually loaded minimum hourly rate of $21.87 for ordinary hours worked on a Monday to a Friday for a “Food and beverage attendant grade 2” (adult);[82] a casually loaded minimum hourly rate of $14.81 for ordinary hours worked on a Monday to a Friday for a 17 year old “Food and beverage attendant”;[83] and a casually loaded minimum hourly rate of $16.62 for ordinary hours worked on a Monday to a Friday for an 18 year old “Food and beverage attendant”.[84]
[76] SOC, [25]
[77] SOC, [26]
[78] SOC, [27]
[79] SOC, [28]
[80] SOC, [29]
[81] SOC, [30]
[82] SOC, [31]
[83] SOC, [32], particulars, [E]
[84] SOC, [32], particulars, [E]
The statement of claim does not allege the Award itself expressly specifies the alleged Award rates during the relevant period. It alleges that the rates were payable under the Award having regard to various steps the Award assumes have been undertaken, or having regard to the existence of certain states of affairs which the terms of the Award make relevant to the determination of the rates payable under it; and these matters are particularised in the statement of claim. Viewed on their own, however, the meaning of the particulars is difficult to comprehend; and that is because they assume familiarity with provisions contained in the Work Choices Act and FW Act, and with determinations made by the Australian Fair Pay Commission and the Australian Industrial Relation Commission (AIRC) after the Work Choices Act came into effect, and by the FWC after 1 July 2009 when the FW Act came into effect. It will be necessary, therefore, to trace the relevant enactments and determinations. The starting point is the Work Choices Act.
Background
One of the objects of the Work Choices Act was to extend federal industrial law to “constitutional corporations” in general, being corporations to which paragraph 51(xx) of the Constitution applies.[85] State awards, however, covered many such corporations, and the rights and obligations provided by those awards became the subject of transitional provisions. These were included in Part 3 of Schedule 8 to the Workplace Relations Act 1996 (Cth) (WR Act) which identified State awards that covered constitutional corporations as “notional agreement preserving State awards” (NAPSAs). That expression was defined in cl.1 of Schedule 8 to the WR Act to mean an “agreement that is taken to come into operation under clause 31” of Schedule 8. Clause 31 provided that if, at the time of commencement of the Work Choices Act, the terms and conditions of employment of one or more employees in a single business or part of a single business were not determined by “State employment agreement” and were determined, in whole or in part, under a “State award” or a “State or Territory industrial law”, a NAPSA was taken to have come into effect “in respect of the business or that part of the business”.
[85] Workplace Relations Act 1996 (Cth), s.4
NAPSAs were intended to operate for only three years. Clause 38A of Schedule 8 to the WR Act provided that NAPSAs were to cease to operate at the end of 31 December 2009 unless a later day were to be prescribed by the regulations. The WR Act contemplated, however, that provisions contained in NAPSAs for determining one or more basic periodic rates of pay, or basic piece rates of pay, payable to employees would be regulated by Part 7 of the WR Act that regulated the “Australian Pay and Classification Scale” (APCS). That expression was defined in s.201 of the WR Act to mean “a set of provisions relating to pay and loadings for particular employees that complies with” Subdivision H of Division 2 of Part 7 of the WR Act. The set of provisions was identified in s.202 of the WR Act, and were divided into those that must be included, and those that may be included in an APCS. The provisions that must be included consisted of, among other provisions, “rate provisions determining basic periodic rates of pay for employees whose employment is covered by the APCS”, “if the rate provisions determine different rates of pay for employees of different classifications, provisions describing those classifications”; the provisions that may be included consisted of, among other provisions, “casual loading provisions determining casual loadings for employees whose employment is covered by the APCS”, and “if the casual loading provisions determine different casual loadings for employees of different classifications - provisions describing those classifications”.
Subsection 208(1) of the WR Act brought the rate provisions of NAPSAs within the operation of that part of the WR Act that dealt with the APCS by including NAPSAs within the definition of a “pre-reform wage instrument” contained in s.178 of the WR Act, and by providing that “rate provisions determining one or more basic periodic rates of pay, or basic piece rates of pay, payable to employees” in NAPSAs, would, on the commencement of the Work Choices Act, be taken to be “a preserved APCS” that included:
(a) those rate provisions;
(b)if those rate provisions determine different basic periodic rates of pay, or different basic piece rates of pay, for employees of different classifications - the provisions of the instrument that describe those classifications; and
(c)any casual loading provisions of the instrument that determine casual loadings payable to employees, other than employees for whom the instrument provides basic piece rates of pay; and
(d)if the casual loading provisions determine different casual loadings for employees of different classifications - the provisions of the instrument that describe those classifications; and
(e)any provisions of the instrument that determine, in relation to employees to whom training arrangements apply, whether hours attending off-the-job training (including hours attending an educational institution) count as hours for which a basic periodicrate of pay is payable; and
(f)any frequency of paymentprovisions for the instrument; and
(g) the coverage provisions for the instrument.
Of some importance is the expression “basic periodic rate of pay” which is defined in s.178 of the WR Act to mean “a rate of pay for a period worked (however the rate is described) that does not include incentive-based payments and bonuses, loadings, monetary allowances, penalty rates or any other similar separately identifiable entitlements”.
There were a number of consequences to the deeming provision provided for by s.208(1) of the WR Act. One of these was that, under s.216 of WR Act, the Australian Fair Pay Commission could adjust the basic period rate of pay provisions contained in NAPSAs.
Not only did the Work Choices Act contemplate that the rate and other provisions of NAPSAs would be regulated by those provisions of the WR Act that applied to the APCS; the Work Choices Act contemplated that NAPSAs, like other awards that had effect immediately before the commencement of the Work Choices Act, would be subjected to the award modernisation process that was provided for by Part 10A of the WR Act. Section 576C of the WR Act required award modernisation to be conducted in accordance with an award modernisation request made by the Minister for Employment and Workplace Relations; and the Minister made such a request on 28 March 2008.[86] On 30 April 2008 a Full Bench of the AIRC was constituted to undertake the process,[87] and in a subsequent decision included the hospitality industry in the priority list of industries that would be the subject of the award modernisation process.[88] The Minister’s request required the AIRC to “formulate awards which apply to corporations throughout Australia in the industry or occupation concerned, replacing many hundreds of federal and state awards containing a wide diversity of terms and conditions”.[89]
[86] [2008] AIRCFB 1000, [1]
[87] [2008] AIRCFB 550, [1]
[88] [2008] AIRCFB 550, [34]
[89] [2009] AIRCFB 826, [3]
On 1 July 2009 the FW Act came into effect together with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (FW Transition Act). Item 5(3)(a) of Schedule 9 to the FW Transition Act provides that “an APCS . . . continues as a transitional APCS”. Also relevant is item 2(1) of Schedule 5 to the FW Transition Act which provides that the AIRC is to “continue and complete the award modernisation process provided for by Part 10A of the WR Act”.
On 4 September 2009 the AIRC published “each of the Stage 3 modern awards”, one of which was the Award.[90] The Award superseded a number of NAPSAs, including the State Clubs Award.
[90] [2009] AIRCFB 826
The Award
There are a number of matters provided for by the Award that are relevant to the issues before me. First, the Award defines the employers and employees it covers, namely “employers of employees engaged in the performance of all or any work in or in connection with or for clubs registered or recognised under State, Territory or Commonwealth legislation and their employees in the classifications” identified in Schedule C to the Award.[91] Relevant are the following classifications identified in Schedule C to the Award:
a)“Food and beverage attendant grade 2”, being an employee who has not reached the appropriate level of training and who is engaged in any of the activities of supplying, dispensing, or mixing of liquor, assisting in the cellar or bottle department, undertaking general waiting duties of both food and/or beverage including cleaning of tables, receipt of monies, attending a snack bar and engaged on delivery duties.[92]
b)“Cook grade 1”, being an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking, or butchering.[93]
c)“Cook (tradesperson) grade 3”, being “a commi [sic] chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test, and who is engaged in cooking, baking, pastry cooking or butchering duties”.[94]
[91] Award, [4.1]
[92] Award, Schedule C, [C.2.2]
[93] Award, Schedule C, [C.3.5]
[94] Award, Schedule C, [C.3.5]
Second, the Award provides that employees may be employed fulltime, part-time, or as casuals.[95] A fulltime employee is one who is engaged as such, employed in a classification in Schedule C to the Award, and is engaged to work 38 hours per week or, where the employee is on a roster, an average of 38 hours per week “over the roster cycle”.[96] A casual employee is one who is “engaged and paid as such”.[97]
[95] Award, [10.1]
[96] Award, [10.3]
[97] Award, [10.5(a)]
Third, cl.17.2 of the Award provides for the weekly and hourly amounts for each classification of employee.[98] Relevant to the proceeding before me are the following alleged Award rates:[99]
[98] Award, [17.2]
[99] These are the rates as at 1 July 2013. The rates alleged in the statement of claim are the rates stated in the Outline of Instruments Underpinning the Australian Pay and Classification Scale Derived from the Club Employees (State) Award and Rates Alleged in Statement of Claim. I consider later whether these are the correct rates during the relevant period.
Level
Classification
Minimum weekly wage
Minimum hourly wage
2
Cook grade 1 (which is relevant to Ms Abdulofski)
$675.64
$17.78
4
Cook (tradesperson) grade 3 (which is relevant to Mr Biasio and Ms Polsen)
$724.66
$19.07
2
Food and beverage attendant grade 2 (which is relevant to the other Employees)
$17.494737
(before 25% casual loading)
The rates identified in the table contained in cl.17.2 are made relevant by cl.17.1 of the Award, which provides:
An adult employee within a level specified in the following table . . . will be paid not less than the rate per week assigned to the classification, as defined in Schedule C – Classification Definitions, for the area in which such employee is working. . . .
Fourth, the Award provides for the payment of additional amounts to those stated in the table in clause 17.2. The additional amounts include a 25% loading for casual work on Monday to Friday, a 50%, 75%, and 150% loading for fulltime and casual work on Saturday, Sunday, and on a public holiday respectively;[100] a 10% penalty for work undertaken from 7.00 pm to midnight on Mondays to Fridays (this being the “Late Work”); and a 15% penalty for work undertaken from midnight to 7.00 am on Monday to Friday.[101]
[100] Award, [29.1]
[101] Award, [29.4]
Fifth, the Award provides for the payment of overtime at overtime rates. The Award relevantly provides as follows:
a)The hours of work for a fulltime employee are “an average of 38 per week”.[102]
b)The average of 38 hours per week could be worked in any one or in any combination of the methods specified in cl.26.3, as agreed between the employer and employee.[103]
c)All work in excess of the average 38 hour per week was to be paid at the following rates:[104]
i)Monday to Friday inclusive – time and a half for the first two hours and double time for all work after the first two hours (being the “Monday to Friday Span”);
ii)between midnight Friday and midnight Saturday (being the “Saturday Span”) – time and three-quarters for the first two hours and double time for all work after the first two hours;
iii)between midnight Saturday and midnight Sunday (being the “Sunday Span”) – double time for all time worked;
iv)all work performed on a public holiday – double time and a half for all time worked, with a minimum payment of four hours at the rate of double time and a half; and
v)all work performed on an employee’s rostered day off – double time, with a minimum payment of four hours at the rate of double time.
[102] Cl.26.1
[103] Cl.26.3, cl.26.4
[104] Cl.28.2
Sixth, the Award provides for the payment of wages for junior employees. Those rates are expressed to be a percentage of the rates payable under cl.17.2 of the Award, and they differ according to the age of the employee. The percentages for 17, 18, 19, and 20 year olds are respectively 60%, 70%, 85%, and 100% of the minimum rate prescribed for the adult classification appropriate to the work performed.[105]
[105] Award, [17.5]
Seventh, the Award provides for the means and time by which wages must be paid. Relevant to the proceeding before me are the following clauses:
21.1Except upon the termination of employment all wages including overtime will be paid on any day other than Friday, Saturday or Sunday in each week. However, by agreement between the employer and the majority of employees in the workplace, in a week where a holiday occurs payment of wages may be made on a Friday.
21.2By agreement between the employer and the employee wages may be paid either weekly or fortnightly by one of the following means:
(a)cash;
(b)cheque; or
(c)payment into employee’s bank account by electronic funds transfer, without cost to the employee.
21.3However, an employer may pay an employee weekly by cash without consultation.
I also find that had AZC complied with s.125 of the FW Act, it would have complied by Mr Yasin providing, or by Mr Yasin instructing others to provide a FWI statement to each of Mr Biasio, Ms Polsen, Ms Abdulofski, Ms P Fulmer, Ms Chalker, and Ms K Fulmer, and Ms Busby. The basis of that finding is the finding I have already made that during the relevant period Mr Yasin was the person solely responsible for the management of AZC’s business. Given these findings, I also find that Mr Yasin knew no FWI Statement was given to any of Mr Biasio, Ms Polsen, Ms Abdulofski, Ms P Fulmer, Ms Chalker, and Ms K Fulmer, and Ms Busby.
I find, therefore, that Mr Yasin was involved in AZC’s contraventions of s.44(1) of the FW Act constituted by AZC’s failure to give a FWI Statement to any of Mr Biasio, Ms Polsen, Ms Abdulofski, Ms P Fulmer, Ms Chalker, and Ms K Fulmer, and Ms Busby before or as soon as practicable after each of these Employees started their employment with AZC.
Claimed involvement in contravention of s.323(1)(a) of the FW Act – failure to pay wages in full
I have found that there had been deducted from Ms Chalker’s wages $60 for the Rules Club shirt and that as a consequence AZC contravened s.323(1)(a) of the FW Act. There is no direct evidence Mr Yasin knew of the deduction. I have found, however, that Mr Yasin was solely responsible for the management of AZC’s business. In those circumstances, it is reasonably open to me to find, and I do find, that the requirement that Ms Chalker wear the Rules Club shirt was a requirement Mr Yasin imposed on employees, as was the requirement that the employees, such as Ms Chalker, would pay for the shirt by having the cost of the shirt deducted from his or her wages. I am satisfied, therefore, that Mr Yasin was concerned with or otherwise knew of the essential elements of this contravention.
Claimed involvement in contravention of s.536 of the FW Act – failure to provide payslips
I have found that AZC failed to provide to each of the Employees a payslip within one working day of paying an amount to each of the Employees in relation to the work they each performed during their employment with AZC; that AZC failed to do so on each occasion each of the Employees were paid; and that on each occasion AZC failed to provide a payslip to each of the Employees AZC contravened s.536 of the FW Act.
The elements of each of the contraventions are:
a)each of the Employees performed work;
b)each of the Employees was paid for the work they he or she performed; and
c)none of the Employees was provided with a payslip within one working day of their having been paid for the work they performed.
I find that had AZC complied with s.536 of the FW Act, it would have been Mr Yasin or some other person whom Mr Yasin would have instructed, who would have provided the payslips to the Employees. I make this finding on basis of the previous findings I have made, namely that during the relevant period: Mr Yasin administered the system of payment of wages to the non-fulltime Employees; Mr Yasin was involved in the payment of the non-fulltime Employees and that he was involved in the payment of Mr Biasio’s wages; and during the relevant period Mr Yasin was the person solely responsible for the management of AZC’s business. I also find that Mr Yasin knew during the relevant period and on each occasion AZC was required to provide payslips that no payslips were provided to any of the Employees within one working day of their having been paid for the work they performed.
I find, therefore, that Mr Yasin was involved in each of the contraventions of s.536 of the FW Act I have found AZC engaged in.
Claimed involvement in contravention of s.535 of the FW Act – failure to make and keep records
I have found that AZC contravened s.535 of the FW Act by not making and keeping records that s.535 and the FW Regulations required AZC to make. I find that had AZC complied with s.535 of the FW Act, it would have been Mr Yasin who would have kept and maintained those records for AZC, or he would have instructed another person to keep and maintain those records. I base that finding on the previous findings I have made, namely that during the relevant period: Mr Yasin administered the system of payment of wages to the non-fulltime Employees; Mr Yasin was involved in the payment of wages to the non-fulltime Employees and that he was involved in the payment of Mr Biasio’s wages; and during the relevant period Mr Yasin was the person solely responsible for the management of AZC’s business. These findings are further supported by evidence that suggests Mr Yasin was responsible for maintaining records and attending to the regulatory aspects of the employment of AZC’s employees, including the Employees. That evidence includes the following:
a)According to Mr Biasio, in July 2013 he had a conversation with Mr Yasin in which Mr Biasio enquired whether Mr Yasin had “got the Host Plus account details off me for the super”. Mr Yasin said he had, that it was “all right”, and that he “got them here on the desk”.[460]
b)According to Mr Biasio, in August 2013 he had a telephone conversation with Mr Yasin in which Mr Biasio requested “a copy of all of my pay slips and my last pay”. Mr Yasin responded by stating that he “shouldn’t have to do it because” Mr Biasio was “only here a short time”, and that Mr Yasin “should just be able to pay you cash for the short amount of time you were employed”. After Mr Biasio insisted that he “would prefer it to be on the record, with tax and everything”, Mr Yasin said there would be “no problem”.[461]
c)According to Ms Chalker, at a meeting of employees held in January 2014 in the bistro with most of the other staff of AZC, Mr Yasin passed around a pile of “TFN declarations” stating “you are going on the books. You need to fill out these forms”.[462]
d)The communications with FWI Bodkin to which I refer in the next section of these reasons.
[460] Biasio affidavit, [25]
[461] Biasio affidavit, [50]
[462] Chalker affidavit, [53]
On the basis of this evidence I also find that Mr Yasin knew that AZC did not make and keep records in relation to the Employees of the sort s.535 of the FW Act required it to make and keep.
I find, therefore, that Mr Yasin was involved in AZC’s contraventions of s.535 of the FW Act,
Claimed involvement in contravention making and keeping of false records – reg.3.44(1) and reg.3.44(6)
I have found that:
a)the Produced Time Sheets record information of the sort reg.3.33 of the FW Regulations requires an employer to make and keep and, therefore, the information recorded in those documents was a record that AZC was required to keep under the FW Act;
b)the Produced Time Sheets record information that is false or misleading, that information being representations to the effect that Ms Chalker, Ms K Fulmer, and Ms Sparks has been paid overtime at the rate of $30 per hour (False Information);
c)by making false and misleading records AZC failed to ensure that the records contained in Produced Time Sheets, being records it was required to keep, was not false or misleading; and
d)by providing the Produced Times Sheets to the FWO, AZC has used a record that is false or misleading.
I indicated I would consider whether AZC knew that the False Information contained in the Produced Time Sheets was false or misleading when I consider the question of whether Mr Yasin was involved in a contravention of reg.3.44(1) or reg.3.44(6) of the FW Regulations.
I find that it was Mr Yasin who included the False Information in the Produced Time Sheets. I base that finding on the evidence I set out in the previous section of these reasons that suggests Mr Yasin was responsible for maintaining records and attending to the regulatory aspects of the employment of AZC’s employees, including the Employees. I rely more particularly on the following evidence:
a)Mr Yasin nominated himself in the “Entity information Form” Mr Yasin provided to FWI Bodkin as the “authorised contact person” for AZC;
b)in his telephone conversation with FWI Bodkin on 20 January 2014 Mr Yasin stated that the “records will be produced as soon as possible”;
c)in his telephone conversation with FWI Bodkin on 30 January 2014 Mr Yasin stated he had “sent records” the previous day;
d)it was Mr Yasin who provided the documents to the FWO office in Wagga Wagga on 6 February 2014 which included a handwritten list of employees, the hourly rates, and whether or not AZC had made superannuation contributions; and
e)Mr Yasin stated in his letter dated 10 February 2014 to FWI Bodkin that “I do not keep these records after I lodged BAS statements. I was not aware that I needed to keep these documents”.
I also find that:
a)the False Information, once Mr Yasin included it in the Produced Time Sheets, constituted an entry in an employee record AZC was required to be made by the FW Act and the FW Regulations; and
b)it was Mr Yasin who sent the Produced Time Sheets to the FWO.
I finally consider whether Mr Yasin knew whether the False Information was false or misleading and whether he knew that at the time he provided to the FWO the Produced Time Sheets they contained the False Information. As I have already noted, the False Information represented Ms Chalker, Ms K Fulmer, and Ms Sparks had been paid at the overtime rate of $30 per hour. That was false and misleading because these three Employees were paid at the flat rate of $20 per hour throughout their employment. Mr Yasin knew that each of these Employees was paid at the rate of $20 per hour because these Employees were non-fulltime Employees, and I have found that in the manner I have described Mr Yasin participated in the payment of wages to the non-fulltime Employees.
For these reasons, I find that:
a)Mr Yasin knew that the False Information was false and misleading at the time he recorded it in the Produced Time Sheets and at the time he produced the Produced Time Sheets to the FWO and at the time he sent the Produced Time Sheets to the FWO;
b)being the controller of AZC the knowledge Mr Yasin had is to be attributed to AZC;
c)AZC therefore:
i)in contravention of reg.3.44(1) of the FW Regulations, failed to ensure that the Produced Time Sheets, which purported to include a record the FW Act and the FW Regulations required AZC to keep, included a record which is not false or misleading; and
ii)in contravention of reg.3.44(6) of the FW Regulations, made use of the entry that recorded the False Information by providing to the FWO the Produced Time Sheets knowing that the entry was false or misleading.
d)Mr Yasin was involved in AZC’s contraventions of reg.3.44(1) and 3.44(6) of the FW Regulations.
Conclusion and disposition
I have annexed to these reasons a schedule (Schedule) which:
a)identifies AZC’s conduct I have found constituted a contravention of a provision or provisions of the FW Act or of the FW Regulations;
b)identifies the term of the Award, and the provision of the FW Act or the FW Regulations I have found the conduct contravened; and
c)notes whether Mr Yasin was involved in AZC’s contravening conduct.
I am conscious that AZC’s contraventions of the FW Act and the FW Regulations I have found on the basis of the evidence before me differ from the contraventions AZC has admitted in its defence. If I were to make declarations and orders against AZC based on the admissions it has made in its defence, therefore, they would to some extent be inconsistent with the declarations and orders that I would make against Mr Yasin based on the findings set out in these reasons for judgment. That by itself, however, should not prevent me from making declarations and orders against AZC based on the admissions it has made that are separate from declarations and orders that I propose to make against Mr Yasin based on the findings set out in these reasons for judgment.
At this stage, therefore, I propose to make declarations as against Mr Yasin only, these being to the effect that AZC contravened the FW Act and the FW Regulations in the manner set out in the Schedule, and that Mr Yasin was involved in the contraventions the Schedule identifies he was involved in. Given that AZC appears to have gone into administration, there may be no utility in my making separate orders against AZC. Nevertheless, if any of the parties consider there to be any utility in my making declarations and orders against AZC, I will provide the parties an opportunity to formulate declarations and orders the parties agree or contend should be made against AZC, given the admissions AZC has made and, to the extent it has not made admissions, the findings contained in these reasons for judgment.
I propose, therefore, to list the matter for a directions hearing on a day convenient to the Court and the parties for the purpose of my being informed of what further declarations or orders the parties submit should be made against AZC or Mr Yasin or both having regard to the findings I have made in these reasons for judgment, and to set the matter down for hearing on the question of penalties.
I certify that the preceding three hundred and fifty (350) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 24 August 2018
SCHEDULE
| Contravening conduct | Contraventions | Involvement of second respondent | Paragraph in judgment |
| For the week ending on 7 July 2013 the first respondent (AZC) paid Mr Biasio $780 on account of wages, but failed to pay or pay in full Mr Biasio: e. $57.21 for the first two hours of overtime, Monday to Friday Span at time and a half; f. $438.61 for overtime, Monday to Friday Span at double time; g. $66.74 for 2 hours overtime, Saturday Span at time and three quarters; and h. $343.26 for 9 hours overtime, Saturday Span at double time. | The conduct was contrary to cl.28.2 of the Registered and Licensed Club Award 2010 (Award), and therefore the conduct contravened s.45 of Fair Work Act 2009 (Cth) (FW Act). | Not established | 103(a) 104 310 |
| For the week ending on 14 July 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: e. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; f. $114.42 for 3 hours overtime, Monday to Friday Span at double time; g. $66.74 for 2 hours overtime, Saturday Span at time and three quarters; and h. $362.33 for 9.5 hours overtime, Saturday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(b) 104 310 |
| For the week ending on 21 July 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: e. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; f. $152.56 for 4 hours overtime, Monday to Friday Span at double time; g. $66.74 for 2 hours overtime, Saturday Span at time and three quarters; and h. $343.26 for 9 hours overtime, Saturday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(c) 104 310 |
| For the week ending on 28 July 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: d. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; e. $190.70 for 5 hours overtime, Monday to Friday Span at double time; and f. $400.47 for 10.5 hours overtime, Sunday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(d) 104 310 |
| For the week ending on 4 August 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: d. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; e. $171.63 for 4.5 hours overtime, Monday to Friday Span at double time; and f. $400.47 for 10.5 hours overtime, Sunday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(e) 104 310 |
| For the week ending on 11 August 2013 AZC paid Mr Biasio $740 on account of wages, but failed to pay or pay in full Mr Biasio: c. $167.80 being the 5.5 (non-overtime) hours on Sunday; and d. $190.70 for 5 hours overtime, Sunday Span at double time. | The conduct was contrary to cl.28.2 of Award and, in the case of the failure to pay the $167.80 for the 5.5 (non-overtime) on Sunday, contrary to cl.29 of the Award, and therefore the conduct contravened s.45 of the FW Act. | Not established | 103(f) 104 310 |
| For the week ending on 18 August 2013 AZC paid Mr Biasio $740 on account of wages; but failed to pay or pay in full Mr Biasio: d. $57.21 for 2 hours overtime, Monday to Friday Span at time and a half; e. $133.49 for 3.5 hours overtime, Monday to Friday Span at double time; and f. $400.47 for 10.5 hours overtime, Sunday Span at double time. | The conduct was contrary to cl.28.2 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(g) 104 310 |
| In September 2013 AZC paid Mr Biasio $250, but failed to pay to Mr Biasio in full $410 for 21.5 hours ordinary time. | The conduct was contrary to cl.17.1 of Award and therefore the conduct contravened s.45 of FW Act. | Not established | 103(h) 104 310 |
| Once in each of the 21 weeks during the period from 19 July 2013 to December 2013 AZC paid to Ms Abdulofski $250 for at least 25 hours’ worth of work performed in each week; but AZC failed to pay to Ms Abdulofski: e. for the 25 hours she performed each week an amount calculated by applying the minimum award rate of $17.78 per hour; f. at least 9 hours’ worth of Late Work for the weeks ending 3 and 10 November 2013; g. in each of the weeks ending 3 and 10 November 2013 amounts calculated at the rate of $24.89 per hour for the total of 8 hours of Saturday work Ms Abdulofski performed; and h. in each of the weeks ending 3 and 10 November 2013 amounts calculated at the rate of $28.29 per hour for the total of 15 hours of Sunday work Ms Abdulofski performed. | The conduct was contrary to cl.17.1 and cl.29 of Award and therefore the conduct contravened s.45 of FW Act. | Established | 121 122 306(e) |
| Once in each of the weeks during: f. the period from 1 October 2013 to 30 January 2014 AZC paid to Ms Chalker an amount for work performed calculated by multiplying the hours she worked by the rate of $20 per hour; g. the period from 1 February 2014 to 17 April 2014 AZC paid to Ms Chalker an amount for work performed calculated by multiplying the hours she worked by the rate of $18 per hour; but: h. AZC failed to pay to Ms Chalker in each of the weeks it made a payment to her an amount calculated by applying the minimum rate of $21.87 per hour provided for by the Award to the number of hours Ms Chalker worked; i. AZC failed to pay Ms Chalker the penalty rate loading for the 11.5 hours she worked on Saturdays, and the penalty rate loading for the 3 hours she worked on a Sunday; and j. AZC failed to pay Ms Chalker any penalty rate loading for the 20 hours of work she performed over Good Friday, Easter Saturday or Easter Sunday. | The conduct was contrary to cl.17.1 and cl.29 of the Award and therefore contravened s.45 of the FW Act. | Established | 132 133 306(e) |
| Once in each of the 16 weeks during the period from 1 July 2013 to 3 November 2013 AZC paid to Ms P Fulmer an amount for work performed calculated by multiplying the hours she worked by the rate of $20 per hour; but AZC failed to pay to Ms P Fulmer in each of the weeks it made a payment to her: d. in relation to ordinary hours worked in that week an amount calculated by applying the minimum rate of $21.87 per hour provided for by the Award to the number of ordinary hours worked in that week; e. in relation to hours worked on a Saturday an amount calculated by applying the minimum rate of $25.35 per hour provided for by the Award to the number of hours worked on a Saturday; and f. in relation to hours worked on a Sunday an amount calculated by applying the minimum rate of $28.85 per hour provided for by the Award to the number of hours worked on a Sunday. | The conduct was contrary to cl.17.1 and cl.29 of the Award and therefore contravened s.45 of the FW Act | Established | 142 143 306(e) |
| Once in each of the 5 weeks during the period from 9 July 2013 to 16 August 2013 AZC paid Ms Busby an amount for 22.5 hours work performed calculated by multiplying the hours she worked by the rate of $20 per hour; but AZC failed to pay to Ms Busby an amount calculated by applying the minimum rate of $21.87 per hour provided for by the Award to the number of ordinary hours worked in that week. | The conduct was contrary to cl.17.1 of the Award and therefore contravened s.45 of the FW Act. | Established | 146 147 306(e) |
| AZC failed to reimburse Ms Chalker $60 being the amount Ms Chalker paid to acquire a shirt AZC required her to wear while working. | The conduct was contrary to cl.18.1 of the Award and therefore contravened s.45 of the FW Act. | Established | 163 317 |
| AZC failed to make superannuation contributions in relation to Mr Biasio. | The conduct was contrary to cl.23.2 of the Award and therefore contravened s.45 of the FW Act. | Established | 168 321 |
| AZC failed to make superannuation contributions in relation to Ms Chalker. | The conduct was contrary to cl.23.2 of the Award and therefore contravened s.45 of the FW Act. | Established | 173 321 |
| AZC failed to make superannuation contributions in relation to Ms P Fulmer. | The conduct was contrary to cl.23.2 of the Award and therefore contravened s.45 of the FW Act. | Established | 175 321 |
| AZC failed to make superannuation contributions in relation to Ms Busby. | The conduct was contrary to cl.23.2 of the Award and therefore contravened s.45 of the FW Act. | Established | 177 321 |
| AZC failed to pay to Mr Biasio accrued annual leave or a 17.5% loading on the accrued annual leave. | The conduct was contrary to: a. s.90 of the FW Act and therefore contravened s.44(1) of the FW Act; and b. cl.30.3 of the Award and therefore contravened s.45 of the FW Act. | Established | 185 325 |
| AZC failed to pay to Ms Abdulofski accrued annual leave and a 17.5% loading on the accrued annual leave. | The conduct was contrary to: a. s.90 of the FW Act and therefore contravened s.44(1) of the FW Act; and b. cl.30.3 of the Award and therefore contravened s.45 of the FW Act. | Established | 187 325 |
| AZC failed to pay Ms Abdulofski money in lieu of notice. | The conduct was contrary to s.117(2) of the FW Act and therefore contravened s.44(1) of the FW Act. | Not established | 194 326 |
| AZC failed to provide written notice of termination of employment to each of Mr Biasio and Ms Abdulofski. | The conduct was contrary to s.117(1) of the FW Act and therefore contravened s.44(1) of the FW Act. | Not established | 198 327 |
| AZC failed to provide to each of Mr Biasio, Ms P Fulmer, Ms Chalker, Ms K Fulmer, Ms Abdulofski, Ms Polsen, and Ms Busby a Fair Work Information Sheet. | The conduct was contrary to s.125 of the FW Act and therefore contravened s.44(1) of the FW Act. | Established | 202 332 |
| AZC deducted $60 from the wages of Ms Chalker. | The conduct contravened s.323(1)(a) of the FW Act. | Established | 206 333 |
| AZC failed to provide to each of Mr Biasio, Ms P Fulmer, Ms K Fulmer, Ms Chalker, Ms Polsen, Ms Abdulofski, Ms Busby, and Ms Sparks a payslip within one working day of each day on which they were paid an amount on account of their wages. | The conduct contravened s.536 of the FW Act. | Established | 214 337 |
| AZC failed to make and keep records in relation to its employees of the sort required to be kept by reg.3.33, reg.3.34, and reg.3.36 of the FW Regulations. | The conduct contravened s.535 of the FW Act. | Established | 239 242 340 |
| AZC failed to ensure that a record it was required to keep under the FW Act and FW Regulations was not false or misleading | The conduct contravened reg.3.44(1) of the Fair Work Regulations 2009 (Cth) (FW Regulations). | Established | 247 248 251 346 |
| AZC made use of an employee record AZC was required to keep under the FW Act or the FW Regulations knowing the entry was false or misleading. | The conduct contravened reg.3.44(6) of the FW Regulations | Established | 248 251 346 |
| AZC dismissed Ms Chalker from her employment because Ms Chalker exercised a “workplace right” as that expression is defined in s.341(1)(c) of the FW Act. | The conduct contravened s.340 of the FW Act. | Involvement not alleged | 266 |
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