Fair Work Ombudsman v F.L. Press Pty Ltd
[2015] FCCA 1578
•18 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v F.L. PRESS PTY LTD & ANOR | [2015] FCCA 1578 |
| Catchwords: INDUSTRIAL LAW – Underpayment of wages – adverse action – coercion – termination of employment – redundancy. |
| Legislation: Workplace Relations Act 1996, ss.171, 182, 208, 717, 718, 719, cl.43 of sch.8 Fair Work Act 2009, ss.11, 15, 44, 45, 60, 61, 117, 119, 139, 340, 341, 342, 343, 360, 361, 380, 386, 539, 545, 546, 550, 701 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, item 11 of sch.2, items 5, 11 of sch.9, items 5, 16 of sch.16, item 13 of sch.18 Crimes Act 1914, s.4AA |
| Cases cited: Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 Jones v Dunkel (1959) 101 CLR 298 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Visscher v Giudice (2009) 239 CLR 361 Woolworths (SA) Pty Ltd v Russian (1996) 66 IR 13 Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 Squires v Flight Stewards Association of Australia (1982) 2 IR 155 Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 Health Services Union of Australia v Tasmania (1996) 73 IR 140 McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | F.L. PRESS PTY LTD (ACN 003 627 325) |
| Second Respondent: | THEODORE SKALKOS |
| File Number: | SYG 1437 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing date: | 12-13 March, 9-10 July 2013 |
| Date of Last Submission: | 24 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Darams |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Respondents: | Mr R. Moore |
| Solicitors for the Respondents: | Koutzoumis Lawyers |
ORDERS
The matter be listed for directions on 3 July 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1437 of 2012
| FAIR WORK OMBUDSMAN |
Applicant
And
| F.L. PRESS PTY LTD (ACN 003 627 325) |
First Respondent
| THEODORE SKALKOS |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION.................................................................................................... [1]
RELEVANT LEGISLATION
2006 - 30 June 2009 – Workplace Relations Act
Legislation........................................................................................................ [5]
Industrial instrument...................................................................................... [12]
1 July 2009 - 31 December 2009, Fair Work Act “bridging period”............. [15]
1 January 2010 - 2011, Fair Work Act – operation of modern awards and National Employment Standards
Industrial instrument...................................................................................... [19]
LegislationTermination and redundancy..................................................................... [24]
General protections.................................................................................. [28]
Liability as accessory............................................................................... [31]
Penalties and compensation..................................................................... [32]
Generally............................................................................................................. [35]
APPLICANT’S ALLEGATIONS......................................................................... [36]
Mr Jovic’s employment...................................................................................... [37]
Underpayment contraventions........................................................................... [38]
Termination contraventions................................................................................ [43]
General protection contraventions.................................................................... [47]
Mr Skalkos’s liability as accessory................................................................... [52]
EVIDENCE
Nikola Jovic......................................................................................................... [53]
Recruitment.................................................................................................... [54]
Employing entities......................................................................................... [56]
Work performed............................................................................................. [57]
Family business.............................................................................................. [66]
Relationship with Mr Skalkos....................................................................... [67]
Remuneration................................................................................................. [69]
Change from full-time work to part-time work........................................... [71]
Enquiry of and complaint to Ombudsman.................................................... [81]
Other staff....................................................................................................... [87]
Departure of Mr Gajeskov............................................................................ [88]
Termination of employment.......................................................................... [93]
Sequelae........................................................................................................ [101]
‘Events leading to termination of Employment with FL Press: Statement by Nikola Jovic’ [103]
Theodore Skalkos............................................................................................. [104]
Mr Jovic’s duties.......................................................................................... [105]
Mr Jovic’s remuneration............................................................................. [115]
Change from full-time to part-time work.................................................. [118]
Relationship with Mr Jovic......................................................................... [126]
Complaint to Ombudsman........................................................................... [127]
Termination of Mr Jovic’s employment.................................................... [129]
Other staff.................................................................................................... [131]
Raymond Wong................................................................................................. [132]
Jelena Rancic.................................................................................................... [151]
Other evidence.................................................................................................. [160]
APPLICANT’S SUBMISSIONS
Underpayment
Specialist Publications NAPSA.................................................................. [162]
Journalists Modern Award........................................................................... [164]
Termination entitlements................................................................................. [165]
General protections
Underpayments
State Award............................................................................................... [167]
Modern Award.......................................................................................... [169]
Termination entitlements....................................................................... [170]Adverse action.............................................................................................. [172]
Coercion....................................................................................................... [175]
Liability as accessory....................................................................................... [177]
RESPONDENTS’ SUBMISSIONS
Underpayments
State Award and NAPSA.............................................................................. [178]
Modern Award.............................................................................................. [180]
Work performed.......................................................................................... [182]
Termination entitlements................................................................................. [183]
Notice........................................................................................................... [184]
Redundancy pay............................................................................................ [185]
General protections
Adverse action
Generally................................................................................................. [186]
April 2010 - January 2011..................................................................... [188]
Termination in January 2011.................................................................. [189]Coercion....................................................................................................... [190]
Failure to call witnesses.................................................................................. [191]
Mr Skalkos........................................................................................................ [192]
CONSIDERATION
Witnesses.......................................................................................................... [193]
Was Mr Jovic underpaid?
The roles of Messrs Gajeskov and Jovic and Ms Rancic......................... [208]
Travel allowance........................................................................................... [216]
Business cards.............................................................................................. [218]
Conclusion................................................................................................... [219]
Termination and redundancy – April 2010..................................................... [228]
General protections – 2010 events
15 April 2010............................................................................................... [240]
19 April 2010............................................................................................... [242]
27 April 2010............................................................................................... [243]
15, 19, 27 April and 3 May 2010............................................................... [244]
September 2010........................................................................................... [245]
Adverse action.............................................................................................. [250]
Reasons for adverse action......................................................................... [252]
General protections – January 2011
Adverse action.............................................................................................. [259]
Reason for adverse action........................................................................... [260]
General protections – coercion...................................................................... [264]
FL Press’s contraventions................................................................................ [270]
Liability as accessory....................................................................................... [271]
ORDER................................................................................................................. [278]
INTRODUCTION
These proceedings are brought by the Fair Work Ombudsman (“Ombudsman”) under the Workplace Relations Act 1996 (“WR Act”) and the Fair Work Act 2009 (“FW Act”). The first respondent (“FL Press”) owns and publishes a Serbian language newspaper, the Novosti. The second respondent, Mr Skalkos, is FL Press’s sole director. Nikola Jovic worked for FL Press from 1 July 2003 until 11 January 2011. The Ombudsman alleges that FL Press failed to pay Mr Jovic minimum rates of pay and also failed to pay him redundancy pay and give him notice, or make payment in lieu, when his full-time employment was terminated.
The Ombudsman also alleges that Mr Jovic made an enquiry and complaint to her office and, as a result of Mr Jovic exercising his workplace rights in this respect, FL Press took adverse action against him from April 2010 which culminated in the termination of his employment. The Ombudsman further alleges that FL Press contravened s.343(1) of the FW Act by attempting to coerce Mr Jovic to not exercise his workplace rights. The Ombudsman alleges that Mr Skalkos has accessorial liability for FL Press’s contraventions of the FW Act referred to in this paragraph.
The Ombudsman seeks declarations that FL Press:
a)contravened s.182 of the WR Act and item 5 of sch.16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”); and
b)contravened ss.44, 45, 340 and 343 of the FW Act;
and that Mr Skalkos:
a)was involved in FL Press’s contraventions of ss.340 and 343 of the FW Act within the meaning of s.550(2) of the FW Act.
The Ombudsman also seeks:
a)an order that FL Press pay Mr Jovic $90,723.42 representing the underpayment of his wages and entitlements and interest on that sum; and
b)the imposition of pecuniary penalties for the respondents’ contraventions.
RELEVANT LEGISLATION
2006 - 30 June 2009 – Workplace Relations Act
Legislation
Certain of the conduct alleged against FL Press occurred before the WR Act was repealed by sch.1 to the FW (TPCA) Act and replaced by the FW Act. Nevertheless, item 11 of sch.2 to the FW (TPCA) Act provides that the WR Act continues to apply on and after its repeal in relation to conduct that occurred before the repeal. Consequently, the WR Act continues to apply to the events which occurred prior to 1 July 2009.
Part 3 of sch.8 to the WR Act preserved the Journalists (Specialist Publications) (State) Award (NSW) (“State Award”) as a notional agreement preserving State awards (“Specialist Publications NAPSA”) with the consequence, by virtue of s.208 of the WR Act (which was found in div.2 of pt.7 of the WR Act), that under the WR Act it was also a “preserved APCS”, i.e. Australian Pay and Classification Scale (“Specialist Publications APCS”).
Pursuant to s.171(3) of the WR Act, the Specialist Publications APCS was part of the Australian Fair Pay and Conditions Standard applicable to FL Press’s employees.
At the relevant time s.182(1) of the WR Act provided:
(1) If:
(a) the employment of an employee is covered by an APCS; and
(b) the employee is not an APCS piece rate employee;
the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro-rated for part hours) that is at least equal to the basic periodic rate of pay (the guaranteed basic periodic rate of pay) that is payable to the employee under the APCS.
Section 719 of the WR Act relevantly provided:
719 Imposition and recovery of penalties
…
(6)Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision … , the court may order the employer to pay to the employee the amount of the underpayment.
(7)Where, in a proceeding against an employer under this section, it appears to the eligible court that the employer has not paid an amount to a superannuation fund that the employer was required, under an applicable provision … , to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund.
…
(9)An order must not be made under subsection (6) or (7) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.
(10)A proceeding under this section in relation to a breach of an applicable provision must be commenced not later than 6 years after the commission of the breach.
Section 717 provided:
In this Part:
applicable provision, in relation to a person, means:
(a) a term of one of these that applies to the person:
…
(iv) a collective agreement.
Clause 43 of sch.8 to the WR Act provided that a notional agreement preserving State awards (“NAPSA”) could be enforced as if it were a collective agreement and that a workplace inspector had the same functions and powers in relation to NAPSAs as he or she had in relation to a collective agreement.
Industrial instrument
The Specialist Publications NAPSA provided:
1. AREA, INCIDENCE AND DURATION
…
(d)Subject to subclause (e), this award shall apply to employees employed as journalists, press artists and press photographers to the extent of the classifications in Clause 5 of the award …
(e)No employer who employs more than 20 full-time employees bound by this award shall be subject to this award, and this award shall not apply to the employees of any such employer. …
…
3. DEFINITIONS
…
(b)“Employee” means a member, or a person eligible to be a member, of the Media, Entertainment and Arts Alliance New South Wales, employed by an employer.
…
4. MINIMUM RATES OF PAYMENT
(a)Minimum rates of pay shall be as set out in Table 1 Rates of Pay, of Part B, Monetary Rates.
…
(c)In view of the nature of the specialist publications within the scope of this award, employees may, subject to the provisions of this subclause, from time to time be involved in a variety of aspects of their employer’s publication or publications, being aspects which do not fall within the scope of the definitions contained in clause 5, Classification Structure. Without limiting the generality of the foregoing, such aspects include taking photographs, writing captions for photographs, preparing drawings, graphs, art work and layout, and may include, by agreement, duties associated with the commercial, business and promotional activities of the publisher …
…
5. CLASSIFICATION STRUCTURE
(a) Employees shall be defined as follows:
“Editor” means an employee with responsibility to the publisher or his/her nominee for the content and/or appearance and/or quality of a publication, who writes or initiates and edits copy, pictures and drawings, supervises and disciplines staff, if any, and generally represents his or her publisher for the publisher’s publication internally and externally.
“Senior Sub-editor” means an employee who is directly responsible to the Editor or his/her nominee for the accuracy and style of material in the form of words, photographs or artwork submitted for publication by members of the staff or contributors, and his/her work may include some writing or re-writing and supervision of other sub-editors, if any. He or she would normally supervise technical, legal, layout and customer relation requirements of the Editor and publisher.
“Sub-editor” means an employee normally responsible to the Senior Sub-editor (or Senior Sub-editors) for the preparation of copy.
“Senior Writer” means an employee who, with minimum, if any, supervision, organises and prepares contributed material for submission to sub-editors or to printers and who initiates and writes original reports and features for publication.
“Writer” means an employee engaged in writing, organising and/or preparing contributed material under the supervision of the Editor.
…
(b)Employees defined in subclause (a) shall be graded in one of the following grades considered most appropriate by the employer: Grade 6, 5, 4, 3, 2 and 1, Trainee Year 2 and Trainee Year 1.
(c)Normally employees classified as editors, senior sub-editors or senior writers will commence at not less than the Grade 2 rate of pay.
…
25. REDUNDANCY
…
(m) Severance Pay
…
(B) Where an employee is 45 years of age or over, the entitlement shall be in accordance with the following scale:
Years of Service 45 Years of Age and Over Entitlement Less than 1 year Nil 1 year and less than 2 years 5 weeks 2 years and less than 3 years 8.75 weeks 3 years and less than 4 years 12.5 weeks 4 years and less than 5 years 15 weeks 5 years and less than 6 years 17.5 weeks 6 years and over 20 weeks
Table 1 of pt.B of the Specialist Publications NAPSA set out the monetary rates of pay for each classification. It contained two grades for trainees and six for journalists, of which Grade 6 was the most senior.
Rule 5 of the constitution of the Media, Entertainment and Arts Alliance New South Wales (”MEAA”) provided as follows:
PART A – Journals’ Section
(a) The Union shall consist of persons employed or engaged:
(1) As journalists, authors … ;
(2)In any branch of writing or drawing or photographic work for the press; …
(b)Only those persons who constantly or regularly perform substantially the work specified in Clause (a) of this Rule shall be eligible for membership.
1 July 2009 - 31 December 2009, Fair Work Act “bridging period”
The FW Act commenced on 1 July 2009 but modern awards and the National Employment Standards (“NES”) did not commence until 1 January 2010, the “FW (safety net provisions) commencement day”. While many provisions of the FW Act applied on and from 1 July 2009, as far as minimum employment standards and industrial instruments were concerned it was also a transitional (“bridging”) period during which pre-FW Act provisions continued to apply pending the FW (safety net provisions) commencement day.
As a preserved APCS under the WR Act, the Specialist Publications APCS was a transitional minimum wage instrument known pursuant to item 5(3) of sch.9 to the FW (TPCA) Act as a transitional APCS which continued in force until repealed by a modern award: item 11 of sch.9 to the FW (TPCA) Act. On and from 1 January 2010 it was replaced by the Journalists Published Media Award 2010 (“Journalists Modern Award”).
Item 5(1) of sch.9 to the FW (TPCA) Act provides that div.2 of pt.7 of the WR Act, which included s.182, continued to apply after the repeal date.
Item 5 of sch.16 to the FW (TPCA) Act states that a person must not contravene s.182 of the WR Act as that section continued to operate by virtue of the FW (TPCA) Act. Item 16(1) of sch.16 of the FW (TPCA) Act relevantly provides that the civil remedy provisions of the FW Act apply as if item 5 of sch.16 to the FW (TPCA) Act were a provision of the FW Act. Item 16 provides that the maximum pecuniary penalty for a contravention of item 5 of sch.16 to the FW (TPCA) Act is 60 penalty units for an individual. Section 546(2) of the FW Act has the effect that the maximum penalty for a corporation which has contravened item 5 of sch.16 of the FW (TPCA) Act is 300 penalty units.
1 January 2010 - 2011, Fair Work Act – operation of modern awards and National Employment Standards
Industrial instrument
The Journalists Modern Award provides:
Coverage
4.1This award covers employers throughout Australia in the published media industry with respect to their employees engaged in journalism in its literary, artistic and photographic branches and/or the gathering, writing or preparing of news matter or news commentaries, and their employees in the classifications listed in clause 13-Classifications …
…
12. Redundancy
12.1 Redundancy pay is provided for in the NES.
…
12.5 Transitional provisions
(a)Subject to clause 12.5(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a notional agreement preserving a State award:
(i) that would have applied to the employee immediately prior to 1 January 2010, if the employee had at that time been in their current circumstances of employment and no agreement-based transitional instrument or enterprise agreement had applied to the employee; and
(ii) that would have entitled the employee to redundancy pay in excess of the employee’s entitlement to redundancy pay, if any, under the NES.
(b)The employee’s entitlement to redundancy pay under the notional agreement preserving a State award is limited to the amount of redundancy pay which exceeds the employee’s entitlement to redundancy pay, if any, under the NES.
…
Clause 13 of the Journalists Modern Award provides for four principal classifications. Three concern cadet journalists and one concerns “editorial employees”. Clause 13.5 of that award provides in relation to bands one and two of the editorial employees classification:
(a) Band one
Editorial employees classified in band one have completed the training requirements of a cadetship or its equivalent and are gaining experience in a wide range of practical areas and/or undertaking additional training. They normally perform journalistic and photographic duties under broad supervision. As they undertake additional training and/or gain experience, they are assigned to duties requiring the exercise of independent initiative and judgment and/or the exercise of more advanced skills. Beginning as a Level 1 artist or photographer, they require decreasing supervision and exercise greater professional judgment and skills to Level 7.
(i)Band two
Editorial employees classified in band two have obtained wide practical experience and are exercising advanced skills. They are capable of working independently and of exercising initiative and judgment on difficult and responsible assignments. They may work either individually or as part of a team without direct supervision.
Clause 13.8 of the Journalists Modern Award also provides that an employee covered by a NAPSA at the time the Journalists Modern Award commenced is to be classified by reference to the translation table set out in sch.B to that award. The translation table in sch.B to that award identifies its band 2 level 8 classification as equivalent to, amongst other pre-FW Act classifications, the Specialist Publications NAPSA grade 4 classification.
Clause 14.1 of the Journalists Modern Award sets out the minimum wages for each pay classification. The effect of cl.A.2.3 of sch.A to that award was that the pay rates found in the transitional APCS continued to apply until the end of the last pay period commencing in June 2010. From the first pay period commencing after 1 July 2010 until the last pay period commencing in June 2011 the minimum weekly rate of pay prescribed for a band 2 level 8 classification was $939.20.
Schedule A to the Journalists Modern Award provides for the transition of wage rates from transitional APCSs to the modern award. It relevantly states:
Schedule A—Transitional Provisions
…
A.2.3 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned.
…
A.2.5From the following dates the employer must pay no less than the minimum wage for the classification in this award minus the specified proportion of the transitional amount:
First full pay period on or after 1 July 2010 80% 1 July 2011 60% …
Clause A.2.4 defines “transitional amount” to be the difference between the relevant minimum wage in the transitional APCS and the relevant minimum wage in the modern award.
Legislation
Termination and redundancy
Part 2-2 of the FW Act contains the NES. Division 11 of pt.2-2 is concerned with notice of termination and redundancy pay. By virtue of s.61(3), ss.117 and 119 are provisions of the NES. Section 117 provides:
117 Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1)An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Amount of notice or payment in lieu of notice
(2)The employer must not terminate the employee’s employment unless:
(a)the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b)the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
(3) Work out the minimum period of notice as follows:
(a) first, work out the period using the following table:
Period Employee’s period of continuous service with the employer at the end of the day the notice is given Period 1 Not more than 1 year 1 week 2 More than 1 year but not more than 3 years 2 weeks 3 More than 3 years but not more than 5 years 3 weeks 4 More than 5 years 4 weeks
(b)then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.
Section 119 provides:
119 Redundancy pay
Entitlement to redundancy pay
(1)An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
Amount of redundancy pay
(2)The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:
Redundancy pay period Employee’s period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
Section 44(1) provides that an employer must not contravene a provision of the NES. Section 539 provides that s.44(1) is a civil remedy provision.
Section 45 of the FW Act provides that a person must not contravene a term of a modern award and s.539 provides that s.45 is a civil remedy provision.
General protections
Part 3-1 of chp.3 of the FW Act provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and the exercise of those rights. Sections 340-343 of the FW Act are found in div.3 of pt.3-1 and relevantly provide:
340 Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
…
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; …
(b) …
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
(2) Adverse action includes:
(a)threatening to take action covered by the table in subsection (1); …
…
343 Coercion
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
(2) Subsection (1) does not apply to protected industrial action.
Section 361 of the FW Act is concerned with proving the reason for action alleged to be contrary to a provision of pt.3-1 of the FW Act. At all relevant times it provided:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.
Section 360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Liability as accessory
Section 550 of the Act provides:
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Penalties and compensation
Sections 539 and 546(2) of the FW Act provide that the maximum pecuniary penalty for a contravention of ss.44 and 340 of the FW Act and, by virtue of s.45, of cls.12.1, 12.5 and 14.1 of the Journalists Modern Award, is 60 penalty units for an individual and 300 penalty units for a corporation.
Since 28 December 2012 a penalty unit has been worth $170: s.4AA Crimes Act 1914. From 1997 until 27 December 2012 a penalty unit was worth $110.
Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of any of the civil remedy provisions.
Generally
Section 718 of the WR Act, item 13 of sch.18 to the FW (TPCA) Act and ss.539 and 701 of the FW Act empower the Ombudsman to bring these proceedings.
APPLICANT’S ALLEGATIONS
The applicant’s allegations made in the statement of claim are relevantly summarised below.
Mr Jovic’s employment
In the period 1 July 2003 to 11 January 2011 Mr Jovic was employed by FL Press as a journalist for the Novosti newspaper. From 1 July 2003 until 26 April 2010 he was employed on a full-time basis and from 27 April 2010 until 11 January 2011 he was employed on a part-time basis. The Ombudsman alleged that Mr Jovic performed the following duties:
a)writing newspaper articles;
b)reporting on significant events within the Serbian community;
c)taking photographs;
d)conducting interviews with local politicians and leaders within the Serbian community;
e)designing printing layouts;
f)preparing advertisements; and
g)translating advertisements and articles from English to Serbian.
Underpayment contraventions
The Ombudsman alleged that during his employment Mr Jovic was paid $14.58 per hour.
The Ombudsman alleged that from 27 March 2006 to 30 June 2009 FL Press was required to pay Mr Jovic the guaranteed rate of pay for the grade 4 classification prescribed by cl.4(a) and table 1 of pt.B of the Specialist Publications NAPSA pay scale. She alleged that Mr Jovic was entitled to be paid:
a)$23.10 per hour between 27 March 2006 and 30 November 2006;
b)$23.72 per hour between 1 December 2006 and 30 September 2007;
c)$23.87 per hour between 1 October 2007 and 30 September 2008; and
d)$24.47 per hour between 1 October 2008 and 30 June 2009.
The Ombudsman alleged that during this period FL Press had underpaid Mr Jovic $51,688.25 and as a consequence had contravened s.182(1) of the WR Act.
The Ombudsman alleged that from 1 July 2009 to 31 December 2009 FL Press was required to pay Mr Jovic an hourly rate of pay not less than $24.47 as set out in the Specialist Publications NAPSA pay scale. The Ombudsman alleged that Mr Jovic was paid $14.58 per hour which resulted in him being underpaid by $9,772.36. The Ombudsman alleged that by failing to comply with s.182(1) of the WR Act, FL Press contravened item 5 of sch.16 of the FW (TPCA) Act which is a civil remedy provision.
The Ombudsman alleged that between 1 January 2010 and 11 January 2011 Mr Jovic was entitled to be paid a rate of pay equal to the rate prescribed for the band 2 level 8 classification by cl.14.1 and A.2.5 of sch.A to the Journalists Modern Award. It was alleged that from 1 January 2010 to 30 June 2010 the prescribed rate was $24.47 and between 1 July 2010 and 11 January 2011 it was $24.72. The Ombudsman alleged that FL Press underpaid Mr Jovic by $11,954.90 and in doing so contravened s.45 of the FW Act, a civil remedy provision.
Termination contraventions
The Ombudsman alleged that on 27 April 2010 FL Press unilaterally changed the terms and conditions of Mr Jovic’s employment by changing his employment status from full-time to part-time and reducing his work hours from five days per week to two days per week, which amounted to a termination of his full-time employment (“first termination”). It was alleged that on 27 April 2010 Mr Jovic was provided with a document entitled “Re Change of Working Days and Termination Payments” and commenced working on a part-time basis. The Ombudsman alleged that as a result of the termination of Mr Jovic’s employment, and because he was over the age of forty-five and had been employed by FL Press for at least five years, FL Press was required to:
a)provide Mr Jovic with five weeks’ written notice of termination of his full-time employment; or
b)pay Mr Jovic five weeks’ wages in lieu of that notice being an amount of $4,469.30.
The Ombudsman alleged that by failing to give Mr Jovic five weeks’ notice of the termination of his full-time work or pay him five weeks’ wages in lieu, FL Press contravened s.117 of the FW Act and thereby contravened s.44(1) of the FW Act, a civil remedy provision.
The Ombudsman alleged that FL Press terminated Mr Jovic’s full-time employment because it had decided to reduce the frequency of the Novosti’s publication to once a week and therefore no longer required Mr Jovic to work on a full-time basis or required anyone else to do Mr Jovic’s full-time job. The Ombudsman alleged that in those circumstances, and by virtue of s.119 of the FW Act, cls.12.1 and 12.5 of the Journalists Modern Award and cl.25 of the Specialist Publications NAPSA, Mr Jovic was entitled to be paid twenty weeks of redundancy pay in the sum of $18,597.20 but was only paid $5,758.59, amounting to an underpayment of $12,838.61. It was alleged that in contravention of cl.12.5(a) of the Journalists Modern Award, FL Press failed to pay Mr Jovic his full redundancy pay and consequently contravened s.45 of the FW Act, a civil remedy provision.
The Ombudsman alleged that in total FL Press had underpaid Mr Jovic’s wages, redundancy pay and notice entitlements by $90,723.42.
General protection contraventions
On 6 April 2010 Mr Jovic telephoned the Ombudsman and made an enquiry about what he was entitled to be paid as a result of the termination of his full-time position. On 7 April 2010 Mr Jovic had a conversation with Mr Skalkos in which he informed Mr Skalkos that he had received advice from the Ombudsman that FL Press could not terminate his full-time employment without giving him five weeks’ notice and paying out his entitlements. The Ombudsman alleged that on 8 April 2010 in a meeting between Mr Jovic, Mr Skalkos and another of FL Press’s employees, Mr Gajeskov, Mr Skalkos informed Mr Jovic that he would be paid his annual leave and long service leave entitlements but would not receive five weeks’ notice or payment in lieu. Additionally, on 15 April 2010 and 19 April 2010, Mr Skalkos informed Mr Jovic that he would be paid his entitlements in instalments.
On 19 April 2010 Mr Jovic’s daughter lodged a complaint with the Ombudsman on behalf of Mr Jovic alleging that FL Press had underpaid him his employee entitlements. The Ombudsman alleged that between 7 April 2010 and 11 January 2011 the respondents knew that Mr Jovic had made an enquiry and lodged a complaint with the Ombudsman. It was alleged that the Ombudsman raised Mr Jovic’s complaint in correspondence to FL Press on a number of occasions and, further, that two Fair Work inspectors had discussed the complaint with Mr Skalkos at a meeting on 9 August 2010 at the FL Press premises.
The Ombudsman alleged that Mr Jovic had a workplace right under s.341(1) of the FW Act to a benefit under a workplace instrument and/or workplace law. He also had a right to make a complaint or enquiry to the Ombudsman in relation to the circumstances of his employment with FL Press, including matters relating to the termination of his full-time employment. The Ombudsman alleged that Mr Jovic exercised his right to make a complaint or enquiry and that following the complaint made to her on Mr Jovic’s behalf, and for reasons which included the fact that Mr Jovic had or proposed to exercise his workplace rights to have the benefit of an instrument or law and to make an enquiry, FL Press took the following adverse action against Mr Jovic:
a)on 15 April and 19 April 2010 Mr Skalkos threatened Mr Jovic by saying that he would not be paid anything if he did not agree to having his entitlements paid in instalments;
b)on 27 April 2010 Raymond Wong, FL Press’s pay roll officer:
i)attempted to force Mr Jovic to sign a statement, drafted for him, stating that he had requested and agreed to FL Press terminating his full-time position and having his entitlements paid in instalments; and
ii)threatened Mr Jovic with non-payment of his employee entitlements if he did not sign the statement;
c)in conversations between Mr Skalkos and Mr Jovic on 15, 19 and 27 April 2010 and in conversations between Mr Jovic and Mr Wong on 19 and 27 April and 3 May 2010, Mr Jovic was refused a written statement setting out the total monetary value of his employee entitlements;
d)from 2 September 2010 to 6 September 2010 Mr Skalkos forced Mr Jovic to assume an increased workload by instructing him to perform Mr Gajeskov’s duties whilst Mr Gajeskov was on leave and threatened him with dismissal if he was unable to complete his and Mr Gajeskov’s duties in his usual fifteen hours of work; and
e)on 11 January 2011 FL Press dismissed Mr Jovic from his employment.
The Ombudsman alleged that FL Press had taken adverse action against Mr Jovic by:
a)injuring him in his employment;
b)altering his position to his detriment; and
c)dismissing him
and that it had therefore contravened s.340(1) of the FW Act .
The Ombudsman alleged that on 10 January 2011 Mr Skalkos, in an intimidating and threatening tone, told Mr Jovic that if he withdrew his complaint he would not be terminated and that the Novosti would not be shut down. It was alleged that Mr Skalkos said this with the intention of coercing Mr Jovic into not exercising his workplace right to make a complaint or enquiry with the Ombudsman and that FL Press thereby contravened s.343(1) of the FW Act.
Mr Skalkos’s liability as accessory
The Ombudsman alleged that Mr Skalkos was involved in certain of FL Press’s alleged contraventions of the FW Act, namely the termination in January 2011, the conduct between 15 April 2010 and 11 January 2011 and the coercion. It was alleged that Mr Skalkos induced the contraventions and was knowingly concerned in them because he:
a)was the proprietor of the business and controlled it;
b)told Mr Jovic in April 2010 that he would not receive five weeks’ notice or payment in lieu;
c)told Mr Jovic in April 2010 that his entitlements would be paid out in a series of instalments;
d)told Mr Jovic in September 2010 to perform Mr Gajeskov’s duties while he was away on leave and to do so in his two days of work or he would be dismissed; and
e)told Mr Jovic in January 2011 that he would keep his job if he withdrew his complaint to the Ombudsman.
EVIDENCE
Nikola Jovic
Mr Jovic deposed that he was employed as a journalist reporting for the Novosti, a Serbian language newspaper, from May 1992 until 11 January 2011.
Recruitment
Mr Jovic deposed that in May 1992 he saw an advertisement in the Novosti and, given his journalistic experience as a freelance writer in Bosnia, he applied and subsequently attended an interview.
A week after his initial interview, Mr Jovic had a further interview with Mr Skalkos who, Mr Jovic deposed, described himself as the boss. Mr Jovic deposed that Mr Skalkos told him that the full-time role reporting for the Novosti would involve writing articles and conducting interviews for a wage of $14 an hour with standard leave entitlements. The following day Mr Jovic commenced work as a reporter for the Novosti on a full-time basis. He was not given a letter of offer or a contract of employment.
Employing entities
During the period Mr Jovic worked for the Novosti, he was employed by three separate companies which, he deposed, were owned by Mr Skalkos. His employee entitlements were carried over from company to company. From 1 July 2003 until 11 January 2011 Mr Jovic was employed by FL Press.
Work performed
Mr Jovic deposed that his duties as a journalist reporting for the Novosti centred on preparing the content and design of each edition of the paper and included:
a)writing newspaper articles;
b)reporting on significant events in the Serbian community;
c)taking photographs. Mr Jovic deposed that he took thousands of photographs as part of his employment and included them in his articles;
d)conducting interviews on a regular basis;
e)designing printing layouts;
f)preparing advertisements; and
g)translating advertisements and articles from English to Serbian.
He deposed that the type of content which he prepared for the Novosti included:
a)interviews with local politicians and leaders in the Serbian community;
b)articles promoting Serbian language schools in Cabramatta and Liverpool;
c)reports on local sporting events where the teams were of Serbian background, including interviews with athletes;
d)articles on numerous Serbian institutions in Australia;
e)translations of published articles into the Serbian language; and
f)articles relating to major news in Serbia and other former Yugoslavian states which he mainly researched and sourced from articles published on the internet.
Mr Jovic said that he had started writing articles immediately upon his employment and that Mr Skalkos had personally told him to take photographs and write articles. He deposed that no-one reviewed the content he prepared prior to its publication. Mr Jovic said that he had been the editor and that Joca Gajeskov had been editor-in-charge. He said that his title of editor appeared in the Novosti.
Mr Jovic deposed that for the majority of his employment at the Novosti, he and Mr Gajeskov each prepared half the pages to be published. Mr Jovic said that although it had not been his principal job, throughout his employment at the Novosti he did a small amount of pagemaker (collage) work in addition to his duties as a journalist. He deposed that he worked autonomously in designing the content for the newspaper.
Mr Jovic deposed that some of the material published in the Novosti was sourced from the internet, but only overseas news stories. He deposed that apart from material sourced from the internet, he never received material from external third party providers although Mr Gajeskov had received some material relating to sport from external providers.
Mr Jovic annexed to his affidavit sworn on 22 October 2012 four articles published in the Novosti in 2004, 2005, 2006 and 2010 in which he was credited as the author. He attached a further twenty-five such articles to his affidavit sworn on 19 February 2013. Mr Jovic deposed that he attended the events referred to in the articles, observed and recorded events which happened, and wrote the text of each article. He estimated that he had written about four thousand articles for the Novosti.
Mr Jovic deposed that as part of his duties he was required to prepare and design advertisements. He deposed that the person in charge of advertising at FL Press would provide him with an advertising contract which would include the details to be included in the advertisement and that he would then write and design the advertisement. Mr Jovic said that his work on advertisements was somewhat repetitive because the Novosti had a set format and advertisements repeated from week to week.
Mr Jovic deposed that he was regularly required to translate documents from English to Serbian. Typically, the person in charge of advertising would provide him with a media release, supplement or advertisement in English and ask him to translate the document into Serbian. Mr Jovic deposed that he would then translate the document into Serbian and design the layout of the translated document for publication.
Mr Jovic deposed that during his employment he was provided, unsolicited, with business cards which stated his position as either “Editor – Novosti” or “Journalist – Novosti”. Mr Jovic deposed that he had never asked Mr Skalkos for those business cards or said that he needed them to promote his family business.
Family business
Mr Jovic deposed that as a hobby he operated a photography business which specialised in photographing and videotaping personal events such as weddings and christenings. He deposed that the events he attended in relation to his role at the Novosti were, in contrast, events of interest to the broader Serbian community such as politics, sports, religion, economy, business and culture. He said that he had worked on his business on weekends but that if he had to work for the Novosti, that work took priority.
Relationship with Mr Skalkos
Mr Jovic deposed that Mr Skalkos would often give him direction on certain duties, such as reporting on certain events. He deposed that when he did so, Mr Skalkos would often say words to the effect of “You will do as I say”. Mr Jovic deposed that whilst he worked autonomously, if he wished to make decisions regarding the Novosti which were not directly related to the preparation of the content for the Novosti, he had to seek Mr Skalkos’s permission. Mr Jovic deposed that when he wished to take a period of leave, he had to obtain permission from Mr Skalkos.
Mr Jovic also gave evidence concerning certain of Mr Skalkos’s alleged behaviour towards him, which was adduced subject to a ruling on its relevance. I have concluded that it was not relevant to whether the respondents contravened the statutory provisions cited earlier and so it will not be taken into account.
Remuneration
Mr Jovic deposed that he did not receive a pay rise between 1992 and 2004 and that when he requested one in 2004 Mr Skalkos agreed to pay him $70 a week for his travel and equipment expenses.
Mr Jovic also deposed that his family business was occasionally provided with free advertising in the Novosti but he was never informed that this constituted part of his salary.He deposed that when he commenced his employment Mr Skalkos told him that advertising was free for FL Press employees.
Change from full-time work to part-time work
On 30 March 2010 Mr Jovic attended a meeting with Mr Skalkos and Mr Gajeskov. He deposed that Mr Skalkos informed them that commencing on 19 April 2010 the publication of the Novosti would be reduced from twice a week to once a week. Mr Skalkos also informed them that they would only work on Mondays and Tuesdays and would be paid $300 a week. Mr Jovic agreed that at one point during the 30 March 2010 meeting, Mr Skalkos told him that if he decided to accept the part-time working arrangements and the payment of his entitlements by instalments, he would put this in writing for him to sign.
Mr Jovic deposed that between 12 April 2010 and 17 April 2010 he had about ten conversations with Mr Skalkos concerning the monetary value of his entitlements. Mr Jovic said that Mr Skalkos told him that he would be paid his accrued annual and long service leave entitlements and that he had told Mr Skalkos that he was also entitled to five weeks’ pay in lieu of notice. He was of this understanding because of information obtained by his daughter from the Ombudsman. Mr Jovic said that Mr Skalkos told him that he was not entitled to a five week notice payment because his employment was continuing.
Mr Jovic deposed that on 15 April 2010 he attended a meeting with Mr Skalkos and Mr Gajeskov during which the following conversation took place:
Mr Skalkos:From now on, Nikola will only work one day per week. Joca can work full-time.
Mr Jovic:Why am I only able to work one day per week, when only last week you said I could work two?
Mr Skalkos: Alright, you can both work two days per week.
Mr Jovic: What about my entitlements?
Mr Skalkos:You will receive your redundancy entitlements by me paying you $5000 lump sum. I will then pay the rest to you in instalments, by you continuing to receive your full-time salary while working part-time until your entitlements have been paid out.
Mr Jovic:Can you please provide me with the total value of my redundancy and other entitlements in writing?
Mr Skalkos:If you are not happy with what you are offered, you won’t get anything. You are an idiot, I will pay you what you want. [sic]
Mr Jovic deposed that during the conversation, Mr Skalkos stood up abruptly in a forceful way and leaned across the table towards him in a threatening manner. He deposed that he felt intimidated by Mr Skalkos’s body language and distressed because he was worried that he would not be paid his entitlements.
Mr Jovic deposed that on 19 April 2010, in a further meeting with Mr Skalkos, Mr Gajeskov and Mr Wong, the following conversation occurred:
Mr Skalkos:You and Joca will be working two days a week, starting next week. I will pay you $2,500 into your bank account initially. The rest of your entitlements will be paid over the next 25 weeks in weekly instalments. The payout will be close to $10,000.
Mr Jovic:I have asked you many times for a written statement of my entitlements. I want to know what my entitlements are, how they have been calculated, and what the amounts relate to.
Mr Skalkos: Raymond [Wong] has the details.
Mr Jovic deposed that Mr Wong showed him a piece of paper bearing a series of numbers which he did not understand. He deposed that Mr Skalkos refused to give him a copy of the document, saying:
… If you aren’t happy then just leave. You can take me to court and you won’t get a cent.
On 26 April 2010 Mr Jovic started working two days a week (on Mondays and Tuesdays). He was paid wages of $218 per week and travel allowance of $28 per week. During this time, the Novosti’s editions were reduced from two a week to one. Mr Jovic said that he did not have a choice in the matter and decided to continue working two days a week despite a disagreement between him and Mr Skalkos over entitlements.
Mr Jovic deposed that on 27 April 2010 Mr Wong approached his workstation and provided him a document entitled “Re Change of Working Days and Termination Payments” which set out the reduction of his days of work and stated that once it was signed he would be paid a lump sum of $2,500 as part payment for his entitlements and would also continue to receive his full week’s pay in order to pay out the balance of his entitlements. The document further stated that Mr Jovic would be paid $9,926.00 gross for all his entitlements.
Mr Jovic deposed that Mr Wong told him that Mr Skalkos had said that he had to sign the document but that he refused to sign because he wanted someone to show him how the figure given for his entitlements was calculated. He said that Mr Wong told him that he could not make any payments of leave entitlements until the document had been signed and that Mr Skalkos told him that he would get nothing if he did not sign or went to court.
Annexed to Mr Jovic’s affidavit sworn on 19 February 2013 were transcriptions of notes from his daily notebook which, in relation to 27 April 2010, relevantly said:
Paymaster advises that if I do not sign I will not be paid any redundancy. He comes a second time at my desk and advises if I don’t sign I will not be paid out any redundancy, holidays or long service leave. Raymond (paymaster) at this point tells me Mr Skalkos has received a letter from Fairwork and is not happy!
Mr Jovic deposed that on 3 May 2010 Mr Wong refused to show him how his entitlements had been calculated. He denied arguing with Mr Wong but did state that Mr Wong had shouted at him because he did not know what Mr Jovic wanted. Mr Jovic deposed that shortly afterwards Mr Skalkos called him into his office and in a loud and aggressive tone called him “sick” and “crazy” and told him that he would not get anything. Mr Jovic’s notebook recorded that meeting in the following terms:
Mr Skalkos requests I come to his office and asks why I have made a complaint to the Ombudsman. I advise him I want what I am entitled to and that by law he must pay my entitlements. He advises he will pay me what he wants to pay me and that I can take him to court and will not get anything.
On 4 May 2010 Mr Jovic was paid $2,500 in addition to his weekly wage. Although he only worked two days a week, he continued to be paid his full-time wages from 4 May 2010 until 31 August 2010. Mr Jovic deposed that he understood that he was paid in that manner to rectify the underpayment of his entitlements.
Enquiry of and complaint to Ombudsman
Mr Jovic deposed that after his 30 March 2010 meeting with Mr Skalkos and Mr Gajeskov, his daughter contacted the Ombudsman on his behalf. On 6 April 2010 she reported that she had been advised that his employment had been terminated by the change to part-time work and that he was entitled to five weeks’ notice and to have his entitlements paid out.
Mr Jovic deposed that on 7 April 2010 he told Mr Skalkos of the advice he had received from the Ombudsman and that on 8 April 2010 he again raised his entitlements at a meeting with Mr Skalkos and Mr Gajeskov. Mr Jovic deposed that Mr Skalkos later told him that he would be paid his annual and long service leave entitlements but would not receive an amount in lieu of notice because he was still employed.
On 19 April 2010 Mr Jovic lodged a complaint with the Ombudsman regarding the change to his working hours and Mr Skalkos’s refusal to pay him his entitlements.
Mr Jovic deposed that shortly after his conversation with Mr Wong on 27 April 2010 during which he refused to sign the document Mr Wong put before him, Mr Skalkos called him into his office and said:
See this piece of paper. It is a letter from the Fair Work Ombudsman. You can send it back to them. Send it back to them because you aren’t getting a cent.
Mr Jovic deposed that Mr Skalkos rose from his chair and thrust his arms up in a threatening manner. He deposed that he felt scared as he believed that Mr Skalkos would physically hurt him. He further deposed that he was afraid that Mr Skalkos’s treatment of him would worsen because he had lodged a complaint with the Ombudsman.
Mr Jovic deposed that between 27 April 2010 and 11 January 2011 he had many conversations with Mr Skalkos about his complaint to the Ombudsman. He deposed that Mr Skalkos would shout in a loud and angry tone of voice and say words to the effect of:
How dare you do this to me? How dare you do this to my business? You are crazy. You are a sick man. You aren’t going to get a cent you know. I will make sure you won’t get anything. You are an idiot.
Other staff
Mr Jovic deposed that he did not report to Mr Gajeskov, was never directed to do so and was not provided with anything in writing which said that he had to report to Mr Gajeskov.
Departure of Mr Gajeskov
On Thursday 2 September 2010 Mr Gajeskov’s wife rang Mr Jovic and told him that Mr Gajeskov was unwell and would not be able to come to work “this week”. Mr Jovic deposed that when he advised Mr Skalkos of this, he was told to prepare the paper in his two rostered days of work and that, if it was impossible as Mr Jovic claimed, he should “go home”.
Mr Jovic deposed that on 6 September 2010 he received another telephone call from Mrs Gajeskov who told him that her husband had gone to Romania. Mr Jovic deposed that when he arrived at work he told Mr Skalkos this and that they then had the following conversation:
Mr Skalkos: I am closing the Novosti newspaper. Go home.
Mr Jovic:If you are terminating me, you need to give me something in writing.
Mr Skalkos: Okay, sit here and don’t do anything.
Mr Skalkos then told him that he had to have the Novosti ready for publication in his usual two day working week. He deposed that he told Mr Skalkos that that was impossible and asked him to allow another journalist, Jelena Rancic, to come and assist, a request to which Mr Skalkos agreed.
Mr Jovic agreed that Mr Gajeskov never returned to the Novosti and that for the remainder of his employment he worked with Ms Rancic, to whom he gave instructions. He said that he helped Ms Rancic at the paper, told her what needed to be done and offered her support. He denied that she had been employed in a position more senior than his or that he had reported to her.
Mr Jovic agreed that his duties in translating advertisements, the format of the paper and his workstation were the same when he worked with Mr Gajeskov and when he worked with Ms Rancic.
Termination of employment
On 3 January 2011 with Ms Rancic Mr Jovic attended a meeting in Mr Skalkos’s office. He deposed to the following conversation:
Mr Skalkos:The Novosti Newspaper will be discontinued. The final issue will be published two days from now. Then you will cease working for me.
Mr Jovic:If you are firing me, then I would like to be provided with written notice.
Mr Skalkos:I won’t give you anything I don’t want to give you. You are a sick man.
Mr Jovic: It is my legal entitlement.
Mr Skalkos:Because you have been so difficult, your last day of work will now be tomorrow. I will give you written notice then. Jelena, put a notice in the paper that this will be the last issue.
Mr Jovic deposed that he felt angry because he believed that Mr Skalkos had no reason to terminate his employment and distressed because he did not know how he would support himself without a job. Mr Jovic attended work on 4 January 2011 and, together with Mr Rancic, completed a draft of the content and design for the next edition of the Novosti. He deposed that when he saw the draft, he noticed that Ms Rancic had not placed a notice stating that that was the last edition of the Novosti.
Mr Jovic deposed that on 5 January 2011 he telephoned Centrelink to find out how he could receive unemployment benefits and was told that he needed a termination letter from his employer. He attended work the next day and asked for a termination letter from Mr Skalkos, who said:
Get out you idiot. You can’t be here. You won’t get anything, if you don’t leave, I will call the police.
…
Fine, if you insist I will give you written notice.
Mr Jovic deposed that he was provided with a termination letter signed by Mr Skalkos and dated 4 January 2011 which stated:
Please be advised that your employment will be terminated on 11 January 2011.
This letter serves as an official notice by giving 1 week notice period.
Mr Jovic denied ever speaking to Mr Wong about his termination letter. He believed that he could only speak to Mr Skalkos as he was the proprietor.
Mr Jovic deposed that during the conversation on 6 January 2011, Mr Skalkos had also asked him to come to work on the following Monday and Tuesday to produce one more edition of the paper and that he had agreed because he had felt intimated by Mr Skalkos.
Mr Jovic deposed that on 10 January 2011 Mr Skalkos approached him at work and told him that if he dropped his complaint with the Ombudsman he could keep his job and the newspaper would not be closed. He said that he had not told anyone of this conversation because he had been scared and feared for his life. Mr Jovic said that although Ms Rancic worked in Mr Gajeskov’s office, he had not told her about the conversation because she had started to become close to Mr Skalkos.
Mr Jovic deposed that on 12 January 2011 he received a telephone call from Ms Rancic who told him that Mr Skalkos was not closing the Novosti, that she had been asked to work full-time and that Branka Zivkoc would start working one day a week.
Mr Jovic said that after making telephone arrangements with Mr Skalkos to do so, he returned to FL Press on 14 January 2011 to pick up his pay slip from Mr Wong.
Sequelae
Mr Jovic deposed that as a result of the events at the Novosti he suffered from deep depression and anxiety, had a permanent tremor in his hands, a tremor in his voice, constant stomach pain, chest pain and a racing heart. He deposed that since he ceased working for Mr Skalkos his chest pain had improved but he continued to experience the other problems.
Mr Jovic deposed that since May 2011 he had sought alternative employment, listing FL Press as a previous employer, but had not been invited to any interviews. Mr Jovic deposed that as a result of his failure to secure employment, he had enrolled in a TAFE course and intended to seek new employment when he completed the course.
‘Events leading to termination of Employment with FL Press: Statement by Nikola Jovic’
In cross-examination, Mr Jovic was referred to the translation of his notebook which was annexed to his affidavit sworn on 19 February 2013 and titled “‘Events leading to termination of Employment with FL Press: Statement by Nikola Jovic”. He said it was a translated, typed version prepared by him and his daughter on 15 April 2011, as the date appearing under his name on the last page of the document recorded, for Fair Work Australia proceedings.
Theodore Skalkos
Mr Skalkos rejected the proposition that Mr Jovic had worked as a journalist for the Novosti or that he had interviewed Mr Jovic before he commenced his employment in 1992.
Mr Jovic’s duties
Mr Skalkos deposed that when Mr Jovic commenced work in 1992 he was employed as a pagemaker (collage), although he did not identify an accepted definition of this job classification or its source. Mr Skalkos deposed that Mr Jovic’s duties were given to him by his supervisor, Mr Gajeskov, and that he was trained on the job. In 1992 his duties included receiving handwritten copy from the chief editor and giving it to the transcriptionist who would type it for formatting and printing. Mr Jovic would then take the proof version, cut its rough edges off, apply glue where required, collate pages and glue photographs to construct a draft or “mock up” of the final paper. The mock up would be worked on further by the printers before it was finalised.
Mr Skalkos deposed that after 29 June 2006 Mr Jovic was not required to glue material together because by then he could create the Novosti’s layout on computer.
Mr Skalkos deposed that the information published in the Novosti was increasingly sent to the Novosti or downloaded from the internet. Mr Skalkos deposed that from about 2006 the process for gathering news was outsourced in the sense that the Novosti had arrangements with overseas news providers who emailed content. Local content was sent by various individuals and organisations in the Australian Serbian community. Mr Skalkos deposed that Mr Jovic would transform the material into a format for publication before passing it to the printers.
Mr Skalkos deposed that Mr Jovic:
a)was not employed principally to write articles but may have provided short comments or opinion from time to time in relation to material provided to him for publication;
b)provided accounts of events within the Serbian community which he attended as part of his family business;
c)was not required to conduct interviews as part of his usual duties;
d)did not take photographs for the Novosti although he offered for publication photographs taken as part of his family business. Mr Skalkos deposed that Mr Jovic was promoting his business and exhibiting the quality of his work;
e)was not responsible for the final design of the printing layout which was done by the printers;
f)did not prepare or design any advertisement as this was done by the graphic designers. Mr Skalkos deposed that Mr Jovic merely provided the designers with information for the advertisements and then checked the designed advertisements;
g)occasionally assisted in translating articles interesting to the Serbian community given to him from within the office, for example, from another of FL Press’s foreign language publications, the Greek Herald. Mr Skalkos deposed that although Mr Jovic might have helped with this, it was principally Mr Gajeskov’s responsibility; and
h)did not perform the same work as Mr Gajeskov. Mr Skalkos deposed that Mr Gajeskov performed the following duties which Mr Jovic was not required to perform:
i)based on invitations issued to FL Press, he attended and reported on events within the Serbian community;
ii)took photographs at events, prepared copy on the events and captioned photographs;
iii)prior to the production run, discussed with the printers and graphic designers the final print layout, including advertisements; and
iv)translated advertisements and articles from English to Serbian.
Mr Skalkos deposed that on one occasion he and Mr Jovic had the following conversation:
Mr Jovic:Do you have any objection to me having a business card?
Mr Skalkos: What do you need a business card for?
Mr Jovic:I want to be able to hand it out to people when I am at functions associated with the business I run in order to show them that I work here and I am someone of importance or who is to be respected.
Mr Skalkos:I have no problem. Talk to the printers or the designers. What do you want to call yourself?
Mr Jovic: Can I use ‘editor’ or ‘journalist’?
Mr Skalkos: If you want to.
Mr Skalkos deposed that had had no problem with Mr Jovic’s request as FL Press could easily design and print the cards. He deposed that he also did not have a problem with Mr Jovic’s request that he identify himself as a journalist or editor because he was aware of Mr Jovic’s true role. Mr Skalkos deposed that he also chose to assist Mr Jovic’s business in the hope that he would receive some benefits for his own businesses.
In his oral evidence, Mr Skalkos said that he had never seen Mr Jovic’s business cards and had never been told by Mr Jovic that he was going to use the title of editor or journalist on them. Mr Skalkos said that he had told Mr Jovic to do what he wanted in order to help his family business and it had not mattered what he wrote on the cards. Mr Skalkos disagreed with the proposition that he had allowed Mr Jovic to use the journalist or editor titles on his cards, because Mr Jovic had not been a journalist or editor of the Novosti. However, he said he would not have had a problem with Mr Jovic handing out such cards because he did not care what Mr Jovic did with his family business and had told him that he could do what he needed to help his business. Mr Skalkos said that his employees made their own business cards and put whatever title they wanted on them, which did not worry or concern him although if someone misrepresented themselves he would look into it.
Mr Skalkos deposed that when Mr Jovic commenced his employment with FL Press in 2003 he was a director and shareholder of the company and responsible for its day to day management. From 25 June 2004 until 3 March 2008 he was bankrupt and not a director of the company although he attended the FL Press premises. He was discharged from bankruptcy on 3 March 2008 at which point he resumed the day to day management of the company.
Mr Skalkos deposed that Mr Jovic reported directly to the nominated editor, first Mr Gajeskov and then Ms Rancic, and that his own day to day supervision of Mr Jovic was minimal.
Mr Skalkos deposed that as he had no knowledge of any upcoming events or news within the Serbian community, he never directly asked Mr Jovic to report on events. He deposed that the decision to cover or attend events was the responsibility of Novosti’s editor.
Mr Jovic’s remuneration
Mr Skalkos deposed that when Mr Jovic commenced work in 1992 his position was administrative and clerical and he was paid under the then-applicable clerical award. He deposed that Mr Jovic’s remuneration package changed over time and came to include a base annual salary, a travel allowance and, as a fringe benefit, advertising for his family business in the Novosti. Mr Skalkos deposed that he and Mr Jovic discussed and agreed on the latter’s remuneration package “over the years”, “most recently” on behalf of FL Press.
Mr Skalkos deposed that Mr Jovic was allowed to use FL Press’s equipment, such as digital processors, digital scanners and colour copiers, to conduct his family business and had flexible working hours in order to meet his family business commitments. Mr Skalkos deposed that when Mr Jovic’s hours were reduced in April 2010, he continued to receive an annual salary based on his reduced hours, a travel allowance and advertising for his family business.
Mr Skalkos deposed that he was not responsible for any payroll-related matters such as pay slips and notices and that if an issue of that sort was raised with him, he referred employees to Mr Wong. He said that Mr Wong was responsible for determining which award applied to each employee and for ensuring that FL Press’s employees received the pay to which they were entitled. He said that if an employee was paid below their award rate it was Mr Wong’s fault. He said that he had never personally made an assessment of whether the clerical award was applicable to Mr Jovic’s employment – it was Mr Wong who did that. Mr Skalkos said that he had never discussed Mr Jovic’s remuneration package.
Change from full-time to part-time work
Mr Skalkos deposed that he told Messrs Jovic and Gajeskov in a meeting in March 2010 that he proposed to reduce the Novosti’s publication frequency from twice a week to once a week as from 19 April 2010. In the meeting Mr Skalkos proposed that they work two days a week and receive reduced wages reflective of the change in hours.
Mr Skalkos deposed that he had subsequent meetings with Messrs Jovic and Gajeskov at which the arrangements which would apply if they accepted the reduced hours and pay were discussed. He deposed that, without mentioning that he had received advice from the Ombudsman, Mr Jovic told him of his understanding that he was entitled to payments for accrued leave and notice as a result of the change in his work hours. Mr Skalkos deposed that after speaking to Mr Wong he advised Mr Jovic that he believed, because his employment was continuing, that there was no termination and so no entitlement to notice or a redundancy payment. He also advised them that if they wanted to be paid their annual and long service leave entitlements, he would pay those over time and, if the proposal was acceptable to them, he would have a document prepared for them to sign.
Mr Skalkos denied Mr Jovic’s allegation that on 15 April 2010 he had said that Mr Jovic would get nothing if he did not accept what was offered.
Mr Skalkos said that he had not discussed with Mr Wong how Mr Jovic’s redundancy entitlement was to be calculated; Mr Wong just calculated it and told him the figure. However, they did discuss how long it would take to pay out Mr Jovic’s entitlement by instalments. He denied having known about Mr Jovic’s application to the Ombudsman at the time he and Mr Wong discussed the drafting of the document which Mr Jovic was later asked to sign.
Mr Skalkos deposed that he might have had a meeting with Messrs Jovic and Gajeskov on 19 April 2010 but stated that Mr Jovic had not sought, and had not been refused, a copy of a document showing the calculation of his entitlements. Mr Skalkos also denied having said to Mr Jovic that if he was not happy he could leave and take him to court and would receive nothing.
Mr Skalkos deposed that Mr Wong had advised him that on 27 April 2010 Mr Jovic had refused to sign the document which Mr Wong had prepared describing how his entitlements would be paid out. Mr Skalkos deposed that he then told Mr Wong to not make any payments to Mr Jovic but subsequently instructed Mr Wong to pay Mr Jovic according to the arrangements set out in the document. In his oral evidence, Mr Skalkos initially denied having told Mr Wong to not pay Mr Jovic unless he signed the document setting out his entitlements but then, when Mr Wong’s evidence on the question was put to him, Mr Skalkos said that he could not remember whether he had said anything to Mr Wong.
Mr Skalkos deposed that on 3 May 2010 he had a conversation with Mr Jovic about his claim to entitlements which he believed FL Press were not paying him. Mr Skalkos deposed that he told Mr Jovic that he relied on Mr Wong’s calculations and accepted them as correct and that:
If you have a different view then you can go to court about it and stop bothering Raymond about it. At the end of the day someone will be right and someone will be wrong. Raymond has told me he has worked it all out correctly. Everyone in the office is becoming sick of you ranting and raving every day. It is affecting morale in the office. Everyone is happy and you keep whinging. I consider you will not get anymore. If it is proved to me to be wrong then I will make whatever further payment to you in relation to the entitlements.
Mr Skalkos deposed that he had not had any discussions with Mr Jovic about shutting the Novosti down.
Relationship with Mr Jovic
Mr Skalkos deposed that he did not consider that he had had a difficult relationship with Mr Jovic or that Mr Jovic was scared of him. Mr Skalkos deposed that there might have been times when he expressed in a forthright manner his displeasure about employees’ conduct or performance and that this might have caused some offence.
Complaint to Ombudsman
Mr Skalkos deposed that around 19 April 2010 he had no knowledge that Mr Jovic had made a compliant to the Ombudsman. He also denied that he had a conversation with Mr Jovic on 27 April 2010 during which he (Mr Skalkos) referred to a letter from the Ombudsman.
Mr Skalkos said that he found out that Mr Jovic had made a complaint when he was visited by two women from the Ombudsman’s office but could not recall the date of the visit. After being pressed in cross-examination he later said that he had become aware that Mr Jovic had made a complaint when he received a letter from the Ombudsman dated 22 April 2010.
Because the change in Mr Jovic’s employment circumstances amounted to a termination, he was also potentially entitled to pay in lieu of notice. He would not have such an entitlement if the termination was deemed by an award to not be a termination, as implied by the respondents’ submission that Mr Jovic had simply been put on lower-paid duties pursuant to cl.12.2 of the Journalists Modern Award. However, that issue need not be considered as I find that the termination of Mr Jovic’s original employment was not effected pursuant to a term of that award. This is because his new employment was on the basis of fewer hours, not duties paid at a rate lower than his previous work had been remunerated. In any event, even if cl.12.2 had applied, its terms make clear that Mr Jovic would have been entitled to some pay in lieu of notice:
12.2 Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.
Mr Jovic was entitled to five weeks’ notice if his employment was to be terminated. I find that he was told on 30 March 2010 that as from 19 April 2010 the Novosti was to reduce its frequency of publication. As his last day of full-time work was 23 April 2010, he therefore had three weeks and four days’ notice and was accordingly entitled to a payment equivalent to one week and one day’s wages in lieu of the remaining portion of the required period of notice.
Compensation orders should be made reflecting these conclusions but they depend on ascertainment of the applicable pay rate and the total of any redundancy payments made in 2010.
General protections – 2010 events
15 April 2010
Mr Jovic’s evidence was that during the discussion on 15 April 2010 Mr Skalkos said to him that if he was not happy with what he was offered, being, I infer, the proposal concerning the payout of his entitlements associated with the reduction in his working hours, he would get nothing. Mr Skalkos denied this allegation.
Because I prefer Mr Jovic’s evidence to Mr Skalkos’s where they differ, I find that Mr Skalkos did say to Mr Jovic that he would get nothing unless he agreed to the payments which FL Press proposed to make to him following the reduction of his work days to two a week.
19 April 2010
For the same reasons, I find that Mr Skalkos did tell Mr Jovic on 19 April 2010 that if he was unhappy about not getting a copy of Mr Wong’s calculations, he could leave and commence court action and would receive nothing. Given that the Novosti was reducing its frequency of publication and reducing the staff’s working hours, it is unlikely that Mr Skalkos would have been concerned if Mr Jovic left.
27 April 2010
Mr Jovic deposed that on 27 April 2010 Mr Wong said that he would not be paid his redundancy entitlements if he did not sign the document Mr Wong handed to him that day. Mr Wong’s evidence was that he told Mr Jovic that unless he signed the document he could not pay him more than his wages for time worked. I accept Mr Jovic’s evidence.
15, 19, 27 April and 3 May 2010
The Ombudsman alleged that on 15, 19 and 27 April 2010 Mr Skalkos refused to provide Mr Jovic with a written statement setting out the total monetary value of his employee entitlements. She further alleged that Mr Wong had done the same thing on 19 and 27 April 2010 and on 3 May 2010. Again, I accept Mr Jovic on these issues.
September 2010
Mr Jovic’s evidence concerning the period surrounding Mr Gajeskov’s departure and Ms Rancic’s permanent appointment to the Novosti was to the effect that he had initially been advised that Mr Gajeskov was ill and would not be coming to work, was later told that Mr Gajeskov had gone to Romania and that, on each of the two occasions he discussed Mr Gajeskov’s absence with Mr Skalkos, he was directed to produce the Novosti on his own in his two day working week or go home. He also alleged that Mr Skalkos’s initial response to being informed that Mr Gajeskov had gone overseas was to announce that the paper would close. The upshot of their conversation on the second occasion was that Ms Rancic was invited to return to the Novosti.
This account was supported by Mr Jovic’s translated notebook.
Ms Rancic said that she came in because Mr Gajeskov had asked her to before he went away on leave.
Mr Skalkos said that he had not told Mr Jovic to go home on either occasion and said that although he and Mr Jovic discussed Mr Gajeskov being on leave in Romania, there had been no discussion of the Novosti closing.
Mr Jovic’s account is the more detailed and is supported by contemporaneous notes. Ms Rancic and Mr Skalkos say different things. I accept Mr Jovic’s account as correct.
Adverse action
The Ombudsman alleged that the actions of FL Press, through Mr Skalkos and Mr Wong, amounted to adverse action because they threatened Mr Jovic with injury in his employment and alteration of his position to his prejudice. Adverse action includes threats to take adverse action: s.342(2) FW Act. With the exception of the refusal to provide Mr Jovic with a written statement setting out the total monetary value of his employee entitlements, the conduct in question threatened treatment of Mr Jovic which would have been substantially different, in an injurious or prejudicial way, to the manner in which he had ordinarily been treated until then and would have amounted to an injury in his employment: Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164. Such treatment would also have altered his position to his prejudice: Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 17-18.
However, the refusal to provide Mr Jovic with a statement of the value of his entitlements was a different matter. The evidence did not indicate that such a refusal represented a detrimental alteration of his position, in that the prior availability of such statements was not demonstrated, and did not prove an injury to Mr Jovic in his employment, as that term has been defined in the authorities such as Childs v Metropolitan Transport Trust (1981) IAS Current Review 946, Squires v Flight Stewards Association of Australia, Health Services Union of Australia v Tasmania (1996) 73 IR 140 and McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111. Consequently, I find that that conduct did not amount to adverse action and need not be considered further.
Reasons for adverse action
The Ombudsman alleged that the adverse action she alleged against FL Press had been taken for reasons which included the fact that Mr Jovic had the right to five weeks’ notice of the termination of his full-time employment or pay in lieu of notice, the right to twenty weeks’ redundancy pay upon the termination of his full-time employment and the right to make a complaint or enquiry into matters associated with his employment with FL Press, specifically matters relating to the termination of his full-time employment in April 2010.
The Ombudsman further alleged that an additional reason the adverse action was taken was the fact that Mr Jovic had made an enquiry of and a complaint to her. As I prefer Mr Jovic’s evidence to Mr Skalkos’s I find that on 7 April 2010 Mr Jovic did tell Mr Skalkos that he had made enquiries of the Ombudsman. I also note Mr Wong’s evidence that around this time Mr Skalkos told him that Mr Jovic had “put the case to the court already” and that Mr Jovic’s contemporaneous notes, which I accept, record Mr Wong and Mr Skalkos referring on 27 April and 3 May 2010 respectively to Mr Jovic having complained to the Ombudsman. Those references are consistent with Mr Skalkos having by that time received the Ombudsman’s letter of 22 April 2010 advising him that Mr Jovic had made a complaint.
Those allegations having been made, a rebuttable presumption arose under s.361 of the FW Act that FL Press had been motivated by those considerations to take the adverse action in question. As already noted, it is not necessary to consider in this context the allegation that Mr Jovic was denied a statement of his entitlements.
The terms of the letter which Mr Jovic was pressed to sign did not advantage him but did advantage FL Press by making it appear as if he had not been made redundant but had asked for a change in his working arrangements, an appearance which might have been sufficient to deny Mr Jovic his notice and redundancy entitlements. Particularly in the context of FL Press’s awareness that Mr Jovic had complained to the Ombudsman, those matters provided a strong motive for FL Press to have Mr Jovic agree to its proposal and sign the letter and for it to push him to agree and to sign.
Mr Skalkos was the person who prompted the adverse action which I have found occurred in April 2010, Mr Wong doing no more than implementing his directions. Mr Skalkos’s evidence was not sufficiently focussed or credible to rebut the presumption, which was also supported by the surrounding circumstances, that Mr Jovic’s workplace rights as identified by the Ombudsman and the enquiry and complaint he had made to her were matters which motivated FL Press to make the threats to him on 15, 19 and 27 April 2010.
I therefore find that that conduct contravened s.340 of the FW Act.
Although Mr Skalkos denied Mr Jovic’s allegations concerning the threats to dismiss him in September 2010 unless he performed Mr Gajeskov’s job as well as his own, I have found that Mr Skalkos did engage in that conduct. Mr Skalkos’s evidence did not address the motivation for that conduct, presumably because he denied behaving in the manner alleged. In such circumstances, FL Press did not succeed in rebutting the statutory presumption that that action was taken for the prohibited reasons alleged. I therefore find that these aspects of the allegation are also made out and that the conduct in question in September 2010 contravened s.340 of the FW Act.
General protections – January 2011
Adverse action
In light of my findings concerning the credibility of the principal actors’ accounts of events in January 2011, I find that Mr Jovic was dismissed from his employment in January 2011 and did not resign. Section 342 of the FW Act provides that dismissal from employment is adverse action.
Reason for adverse action
The Ombudsman alleged that this adverse action had been taken for reasons which included the fact that Mr Jovic had the right to five weeks’ notice of the termination of his full-time employment or pay in lieu of notice, the right to twenty weeks’ redundancy pay upon the termination of his full-time employment and the right to make a complaint about or enquiry into matters associated with his employment with FL Press, specifically matters relating to the termination of his full-time employment in April 2010.
A rebuttable presumption therefore arose under s.361 of the FW Act that FL Press had been motivated by those considerations to dismiss Mr Jovic from his employment.
The evidence of Mr Skalkos and Mr Wong was directed to proving that Mr Jovic resigned and that he had not been dismissed, a version of events which I have rejected. Unsurprisingly in the circumstances, they did not seek to explain why Mr Jovic was dismissed, Mr Skalkos relevantly saying only that in January 2011 had had no intention of dismissing Mr Jovic. My finding on the termination entails a rejection of that evidence. As a result of all these matters, I find that the s.361 presumption has not been rebutted and that the Ombudsman’s allegation has been made out.
I find that Mr Jovic’s dismissal contravened s.340 of the FW Act.
General protections – coercion
The Ombudsman alleged that on 10 January 2011 Mr Skalkos told Mr Jovic that if he withdrew his complaint to the Ombudsman he would not be terminated and that the Novosti would not be shut down. Given my view of the witnesses, I accept that this event occurred. The question therefore becomes whether Mr Skalkos intended to coerce Mr Jovic into not exercising his industrial rights.
Intent to coerce contrary to s.343 of the FW Act involves two elements. The first is an intent that pressure be exerted which will negate choice. The second is that the exertion of that pressure will involve conduct that is unlawful, illegitimate or unconscionable: Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at 187 [71].
The respondents submitted that there could not have been any coercion because such rights as Mr Jovic had, had already been exercised and the prohibition on coercion was directed to preventing the exercise of as yet unexercised rights. I am not of the view that s.343(1) should be read in such a restrictive way. It would be artificial to limit the prohibition on coercion to events yet to happen and to ignore the need to protect parties from being pressured into withdrawing complaints already made. I do not believe that the terms of s.343 require such an interpretation or that the Parliament intended the section to operate in that manner.
However, what is missing in the proof of the allegation is evidence of a degree of compulsion or pressure sufficient to negate Mr Jovic’s choice whether or not to withdraw his complaint to the Ombudsman. As Weinberg J said in National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114:
… what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply. (emphasis in original) (at 143 [103])
His Honour continued:
… there remains a clear distinction between offering a person an incentive to do something, and acting with intent to coerce. An incentive, no matter how powerful, can still, as a matter of practical reality, be refused. Coercion involves negation of choice. (at 145 [115])
In this case, I am not persuaded that what Mr Skalkos said amounted to compulsion or could form the basis for an inference that it had been intended as such. What he offered was an inducement. As this essential element of the allegation has not been made out it is not necessary to consider why Mr Skalkos said what he said in this connection.
In the circumstances it is also not necessary to decide whether the offer was unlawful, illegitimate or unconscionable, a question to which submissions were not addressed.
FL Press’s contraventions
I find that FL Press contravened:
a)s.182(1) of the WR Act, item 5 of sch.16 of the FW (TPCA) Act and s.45 of the FW Act by reason of its underpayment of Mr Jovic’s ordinary time wages;
b)s.117 of the FW Act by failing to pay Mr Jovic one week and one days’ wages in lieu of notice of termination;
c)s.45 of the FW Act by failing to pay Mr Jovic’s full entitlements to redundancy pay upon the termination of his full-time employment in April 2010;
d)s.340 of the FW Act by taking adverse action against Mr Jovic on 15 April 2010 by threatening to injure him in his employment and to alter his position to his prejudice;
e)s.340 of the FW Act by taking adverse action against Mr Jovic on 19 April 2010 by threatening to injure him in his employment and to alter his position to his prejudice;
f)s.340 of the FW Act by taking adverse action against Mr Jovic on 27 April 2010 by threatening to injure him in his employment and to alter his position to his prejudice;
g)s.340 of the FW Act by taking adverse action against Mr Jovic from 2 to 6 September 2010 by threatening to injure him in his employment and to alter his position to his prejudice; and
h)s.340 of the FW Act by taking adverse action against Mr Jovic on 11 January 2011 by dismissing him from his employment.
Liability as accessory
The Ombudsman alleged that Mr Skalkos induced and was knowingly concerned in FL Press’s contraventions of the FW Act’s general protections provisions. The contraventions which have been proved are:
a)Mr Skalkos’s threat on 15 April and 19 April 2010 that Mr Jovic would not be paid anything if he did not agree to having his entitlements paid in instalments;
b)Mr Wong’s:
i)attempt on 27 April 2010 to force Mr Jovic to sign a statement stating that he requested and agreed to FL Press terminating his full-time position and having his entitlements paid in instalments; and
ii)threat to Mr Jovic on 27 April 2010 with non-payment of his employee entitlements if he did not sign the statement;
c)Mr Skalkos’s requirement in September 2010 that Mr Jovic assume an increased workload and his threat to dismiss him if he was unable to complete his and Mr Gajeskov’s duties in his usual fifteen hours of work; and
d)the dismissal of Mr Jovic from his employment on 11 January 2011.
The Ombudsman alleged that Mr Skalkos was involved in those contraventions because he:
a)was the proprietor of the business and controlled it;
b)told Mr Jovic in April 2010 that he would not receive five weeks’ notice or payment in lieu;
c)told Mr Jovic in April 2010 that his entitlements would be paid out in a series of instalments; and
d)told Mr Jovic in September 2010 to perform Mr Gajeskov’s duties while he was away on leave and to do so in his two days of work or he would be dismissed.
After being discharged from bankruptcy it is apparent, and I find, that Mr Skalkos resumed the principal managerial role at FL Press. Consequently, his actions carried the authority of that position. I have found that Mr Skalkos threatened Mr Jovic on 15 and 19 April 2010 with non-payment of his entitlements unless he agreed to those entitlements being paid in instalments. I therefore find that Mr Skalkos was knowingly concerned in FL Press’s adverse action contraventions in relation to that conduct.
Similarly, the threat of non-payment of entitlements made to Mr Jovic by Mr Wong on 27 April 2010 was made at the instigation of Mr Skalkos, Mr Wong being no more than Mr Skalkos’s messenger on that occasion. I find that Mr Skalkos was knowingly concerned in that contravention by FL Press of s.340 of the FW Act.
As with the contraventions on 15 and 19 April 2010, Mr Skalkos was the person who initiated and effected FL Press’s threats made to Mr Jovic in September 2010 that if he did not perform Mr Gajeskov’s job as well as his own in his ordinary two days of work he would be dismissed. Mr Skalkos was knowingly concerned in that contravention of s.340 of the FW Act.
The evidence also supports a finding that the dismissal of Mr Jovic from his employment in January 2011 was initiated by Mr Skalkos. I have found that Mr Jovic did not resign but was terminated and I find that Mr Wong did not make any decision to dismiss Mr Jovic. Again, Mr Wong only passed information from one person to another and implemented Mr Skalkos’s instruction to draft a letter of termination. I find that the decision to dismiss Mr Jovic was taken by Mr Skalkos and that he was, therefore, knowingly concerned in that decision and in that contravention of s.340 of the FW Act.
As Mr Skalkos was knowingly concerned in all those contraventions, I find for the purposes of s.550 of the FW Act that he was involved in them all.
ORDER
The matter will be listed on 3 July 2015 for directions concerning the compensation and penalty orders to be made in light of the above findings.
I certify that the preceding two hundred and seventy-eight (278) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 18 June 2015
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