Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4)
[2021] FCA 1242
•14 October 2021
FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242
File number(s): ACD 41 of 2018 Judgment of: KATZMANN J Date of judgment: 14 October 2021 Catchwords: INDUSTRIAL LAW — allegations of multiple contraventions of numerous civil penalty provisions of the Fair Work Act 2009 (Cth) relating to employment of seven massage therapists recruited to work from the Philippines — which, if any, award applied — whether employer contravened s 45 of the Act by failing to pay minimum wages, public holiday and overtime rates — whether employer contravened s 44 by failing to comply with National Employment Standards — where employees worked long hours, were required to be available to perform massages throughout the time the employer’s premises were open to the public and were not paid overtime rates, whether employees were requested or required to work unreasonable hours contrary to s 62(1) — whether employer failed to pay untaken annual leave entitlements on termination as required by s 90(2) — whether employer failed to give employees a Fair Work Information Statement in accordance with s 125 — whether sufficient for employer to put a copy on a wall in the staff room— whether by making deductions from their wages purportedly to repay loans in the absence of written authorisations, employer acted contrary to s 323(1) — where employer allegedly required employees to return a portion of their salaries in cash, whether employer required employees to spend amounts from their wages for the benefit of the employer contrary to s 325(1)
INDUSTRIAL LAW — adverse action — whether employer took adverse action against employees in contravention of s 340 by threatening to repatriate them to the Philippines if they exercised their workplace rights to make a complaint or inquiry — whether employer took adverse action against employees in contravention of s 351 by reason of their race, national extraction and/or social origin
INDUSTRIAL LAW — coercion — whether employer threatened to return employees to the Philippines or have their families there killed if they reported their working conditions to authorities in contravention of s 343(1)
INDUSTRIAL LAW — record keeping contraventions — whether employer made or kept records and/or pay slips of the kind prescribed by the Fair Work Regulations 2009 (Cth) — whether employer contravened s 535(1) by failing to make and keep records of the number of overtime hours worked or the start and finish times of overtime hours worked contrary to reg 3.34; of the periods of annual leave taken and the balance of their entitlements to annual leave from time to time contrary to reg 3.36(1); and of the nature of the termination of the employees’ employment contrary to reg 3.40 — whether pay records false or misleading to employer’s knowledge in contravention of reg 3.44(1) — whether employer made use of entries in employee records knowing the entries were false or misleading — whether employer failed to provide pay slips to employees for parts of their periods of employment in contravention of s 536(1) and whether employer contravened s 536(2) because pay slips did not include certain information prescribed by reg 3.46
ACCESSORIAL LIABILITY — whether sole director of employer who recruited employees and who was admittedly responsible for the overall direction, management and supervision of employer’s operations was knowingly concerned in employer’s contraventions — whether supervisory employee was knowingly concerned in some of the contraventions
CORPORATIONS — deed of company arrangement — where employer had entered into a deed of company arrangement and the employees in question were parties to the deed and had been paid according to its terms, whether deed extinguishes the underlying liability — whether Ombudsman a creditor —whether an order of any kind could be made against employer
PRACTICE AND PROCEDURE — whether leave should be granted to Ombudsman to amend pleadings after conclusion of hearing
Words & phrases: “give”, “require”, “spend”, “in his or her employment”, “race”, “national extraction”, “social origin” Legislation: Acts Interpretation Act 1901 (Cth) ss 15AA, 46
Bankruptcy Act 1966 (Cth) s 82(3)
Conciliation and Arbitration Act 1904 (Cth) s 5(1) (repealed)
Corporations Act 2001 (Cth) ss 435A, 435C, 444A(4), 444D(1), 473B, 553, 553B
Evidence Act 1995 (Cth) s 140
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 9, subitem 5
Fair Work Act 2009 (Cth) ss 3, 11, 12, 14, 26, 27, 44(1), 45, 46, 47, 48(4), 48, 61, 62, 90, 116, 117, 124, 125, 153, 194, 195, 323, 324, 325, 326, 327, 336, 340, 341, 342, 343, 348, 351, 360, 361, 535, 536, 545(3), 546(1), 549, 551, 682, 771, 772, 723, 793
Federal Court of Australia Act 1976 (Cth) s 37M
Migration Act 1958 (Cth) ss 140UA, 140V, 140X, 140XB, 140XC, 235, 245AB, 245AG, 245AR, 245AS
Racial Discrimination Act 1975 (Cth) ss 10, 15(1)
Fair Work Regulations 2009 (Cth) regs 2.02, 2.12, 3.33, 3.34, 3.36, 3.40, 3.44(1), 3.44(6), 3.46(2)
Federal Court Rules 2011 (Cth) rr 1.32, 1.40, 8.21, 16.08, 16.53
Legal Services Directions 2017 (Cth) App B, cl 2
Migration Regulations 1994 (Cth) reg 2.79(2)
Proceeds of Crime Regulations 2002 (Cth) reg 6(l)
Confiscation of Criminal Assets Act 2003 (ACT) ss 84(1), 85(1)
Crimes Act 1900 (ACT) s 30
Criminal Code 2002 (ACT) ss 62, 64
Discrimination Act 1991 (ACT) ss 7(1), 10
Equal Opportunity Act 1984 (Vic) s 4 (repealed)
Equal Opportunity Act 2010 (Vic) s 4
Hair and Beauty Industry Award 2010 ccl 3.1, 4, 7, 17, Sch B
Health Professionals and Support Services Award 2010 ccl 3.1, 4, 7, 11.2, 14, 15, 18.5(a), 23, 24, 28.1, 32.2, A.2.5, A.5, A.7.3, B.1, Sch C
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) Art 1.1
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Cth)
Explanatory Memorandum to the Corporate Law Reform Bill 1992 (Cth)
Explanatory Memorandum to the Fair Work Bill 2008 (Cth)
Cases cited: 4 yearly review of modern awards – Health Professionals and Support Services Award 2010 [2019] FWCFB 8538
Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 21 ACLC 1810; 46 ACSR 504; 179 FLR 1
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134
Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560; 58 ACSR 22; 200 FLR 332; 24 ACLC 657
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262
Australian Communications and Media Authority v Mobilegate Ltd (a company incorporated in Hong Kong) (No 8) [2010] FCA 1197; 275 ALR 293
Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521
Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2016] FCA 1246
Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442
Australian Education Union v Victoria (Department of Education and Early Childhood Development) (2015) 239 FCR 461
Australian Medical Council v Wilson (1996) 68 FCR 46
Australian Securities and Investments Commission v Adler [2002] NSWSC 171; 41 ACSR 72; 20 ACLC 576; 168 FLR 253
Australian Securities and Investments Commission v Lawrenson Light Metal Die Casting Pty Limited [1999] VSC 500; 33 ACSR 288; 158 FLR 307
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Banque Commerciale SA (in liq) v Akhil Holdings Limited (1990) 169 CLR 279
BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton (2011) 82 NSWLR 336
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Brash Holdings Ltd (Administrator appointed) v Katile Pty Ltd [1996] 1 VR 24
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Caason Investments Pty Ltd v Cao (2015) 236 FCR 322
Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261
Chief Executive Offıcer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161
Chong v CC Containers Pty Ltd [2015] 49 VR 402
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46
City of Swan v Lehman Brothers Australia Ltd (subject to a Deed of Company Arrangement) (2009) 179 FCR 243
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Commonwealth v McEvoy (1999) 94 FCR 341
Community and Public Sector Union (CPSU) v Telstra Corp Ltd (No 2) (2000) 101 FCR 45
Community Development Pty Ltd v Engwirda Construction Co (1969) 120 CLR 455
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 59 AILR ¶100–686; 164 IR 299
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; 64 AILR ¶101–659
Council of the NSW Bar Association v Power (2008) 71 NSWLR 451
Cummins South Pacific Pty Limited v Keenan [2020] FCAFC 204, 302 IR 400
Currie v Dempsey (1967) 69 SR (NSW) 116
Dilosa v Latec Finance Pty Ltd (No 1) (1966) 84 WN (Pt 1) (NSW) 557
Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338
Ealing London Borough Council v Race Relations Board [1972] AC 342
Eatock v Bolt (2011) 197 FCR 261
Ex parte McLean (1930) 43 CLR 472
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; 360 ALR 261; 282 IR 86
Fabre v Arenales (1992) 27 NSWLR 437
Fair Work Ombudsman v Al Hilfi [2016] FCA 193
Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528; 271 IR 139
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) [2019] FCA 1601
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 2) [2020] FCA 348
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; 152 ALD 209
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Foots v Southern Cross Management Pty Ltd (2007) 234 CLR 52
Giorgianni v The Queen (1985) 156 CLR 473
Hamilton v Whitehead (1988) 166 CLR 121
HL Bolton (Engineering) Co. Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159
Ho v Powell (2001) 51 NSWLR 572
Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455
Jones v Dunkel (1959) 101 CLR 298
Josephson v Walker (1914) 18 CLR 691
King-Ansell v Police [1979] 2 NZLR 531
Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18
Kucks v CSR Ltd (1996) 166 IR 182
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lamont v University of Queensland (No 2) [2020] FCA 720
Lehman Brothers Holdings Inc. v City of Swan (2010) 240 CLR 590
Leotta v Public Transport Commission(NSW) (1976) 9 ALR 437; 50 ALJR 666
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
Mandla v Dowell Lee [1983] 2 AC 548 (HL)
Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154
Mathers v Commonwealth of Australia (2004) 134 FCR 135
Merlin Gerin (Australia) Pty Ltd v Wojcik [1994] VSC 209
Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95
Milardovic v Vemco Services Pty Ltd (Administrators Appointed)(No 2) (2016) 242 FCR 492
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 95 ALJR 342; 388 ALR 351
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 94 ALJR 818; 381 ALR 601; 297 IR 338
Musa v Alzreaiawi [2021] NSWCA 12
MYT Engineering Pty Limited v Mulcon Pty Limited (1999) 195 CLR 636
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
Payne v Parker [1976] 1 NSWLR 191
PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 248 FCR 18
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
Rumble v The Partnership trading as HWL Ebsworth [2019] FCA 1409; 289 IR 72
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460; 149 ALD 88
Secretary, Department of Health and Ageing v Prime Nature Prize Pty Ltd (in liq) [2010] FCA 597
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378
Shackley v Australian Croatian Club Ltd [1995] IRCA 475; 61 IR 430
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346; 242 IR 1
Sons of GwaliaSons of Gwalia Ltd (subject to a deed of company arrangement) v Margaretic (2007) 231 CLR 160
Squires v Flight Stewards Association of Australia (1982) 2 IR 155
State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172
State of Victoria v Mansfield (2003) 130 FCR 376
Tattsbet Ltd v Morrow (2015) 233 FCR 46
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
The Commonwealth v Tasmania (1983) 158 CLR 1
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507
Vale v Sutherland (2009) 237 CLR 638
WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; 79 ALJR 94; 210 ALR 190; 80 ALD 69
Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 66 AILR ¶102–285; 243 IR 468
Warrumunda Village Inc v Pryde (2002) 116 FCR 58
Water Board v Moustakas (1988) 180 CLR 491
West v Government Insurance Office (NSW) (1981) 148 CLR 62
Yorke v Lucas (1985) 158 CLR 661
Australia, Senate, A National Disgrace: The Exploitation of Temporary Work Visa Holders, Report to the Senate Education and Employment Committee (2016)
Australian Law Reform Commission, Protection of Human Genetic Information in Australia, Report No 96 (2003)
Award Modernisation – Statement – Full Bench [2009] AIRCFB 50
Butterworths Australian Legal Dictionary (Butterworths, 1997)
Committee of Experts on the Application of Conventions and Recommendations, Equality in Employment and Occupation: Report III (Part 4B): General Survey of the Reports on the Discrimination (Employment and Occupation) Convention (No 111) (Report presented to the International Labour Conference, 75th sess, Geneva, 1988)
Heydon JD, Cases and Materials on Evidence (Butterworths, 1975)
Heydon JD, Cross on Evidence (12th ed, Lexis Nexis Butterworths, 2019)
Macquarie Dictionary (8th ed, Pan Macmillan Australia, 2020)
Murray M “Fines and Penalties – Provable in Bankruptcy?” (2000) 10(3) New Directions in Bankruptcy 13
Symes C and Duns J, Australian Insolvency Law, (3rd ed, Lexis Nexis Butterworths, 2015)
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 972 Date of last submissions: 5 February 2021 Date of hearing: 21–25 October 2019, 30 November–11 December 2020 Counsel for the Applicant: Mr M Seck with Ms B Byrnes Solicitor for the Applicant: Office of the Fair Work Ombudsman Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: The Second Respondent was self-represented Counsel for the Third Respondent: The Third Respondent was self-represented ORDERS
ACD 41 of 2018 BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: FOOT & THAI MASSAGE PTY LTD (ACN 147 134 272)
First Respondent
COLIN KENNETH ELVIN
Second Respondent
JUN MILLARD PUERTO
Third Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
14 OCTOBER 2021
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to file and serve a second further amended originating application and a second further amended statement of claim in the form of annexures ST-47 and ST-48 to the affidavit of Sharissa Thirukumar affirmed on 22 December 2020.
2.Leave also be granted to the applicant to amend the second further amended statement of claim to incorporate in paragraphs 152, 153, 159 and 160 the following additional cross-references: 47HP, 53HP, 59HP and 65HP.
3.By 21 October 2021, the applicant file and serve the second further amended originating application and statement of claim incorporating the above amendments.
4.By 28 October 2021 the applicant file and serve further submissions and, if necessary, affidavit evidence, particularising in detail the steps taken by Mr Ronnie Wong that enabled him to reach the conclusion that the base hourly rates at all relevant times were as set out in the table to paragraph 4 of his fourth affidavit affirmed on 22 December 2020.
5.By 4 November 2021, the second respondent file any amended defence in response to the amendments made in the second further amended statement of claim.
6.By 25 November 2021, the second respondent file and serve any affidavit evidence in response to Mr Wong’s fourth affidavit and any further affidavit filed as a result of order 4 above.
7.The parties use their best endeavours to agree on orders giving effect to these reasons, including the amount of the underpayments.
8.The matter be referred to Senior National Judicial Registrar Priestley to assist the parties to reach agreement.
9.If the parties are unable to reach agreement by 16 December 2021, pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) Senior National Judicial Registrar Priestley be appointed as a referee to conduct an inquiry into the following questions in accordance with these reasons and to provide a written report to the Court setting out her opinion on those questions and her reasons:
(a)With respect to minimum wages, public holidays worked, Monday to Saturday overtime and Sunday overtime worked:
(i)What amounts should have been paid to each of the Massage Therapists during his or her period of employment with the first respondent?
(ii)Comparing the agreed amounts paid to each of the Massage Therapists during their employment with the amounts they should have been paid, to what extent was each of them underpaid?
(b)With respect to accrued untaken annual leave, comparing the agreed amount of untaken annual leave each of the Massage Therapists had at the time their respective periods of employment with the first respondent ended with the amounts they should have been paid in accrued untaken annual leave, to what extent was each of them underpaid?
10.The parties be provided with an opportunity to make further submissions on these questions to the referee in accordance with any directions she may make.
11.The matter be listed for further case management within seven (7) days of the provision to the Court of the referee’s report.
12.Leave be granted to apply on three (3) days’ notice.
THE COURT NOTES THAT:
13.In these orders:
(a)the term “Massage Therapists” is a reference to the former employees of the first respondent listed in para 4 of this judgment;
(b)“the agreed amounts paid to each of the Massage Therapists during their employment” are the amounts recorded in column 5 of tables 2, 3, 4 and 5 of annexure A to the amended statement of claim and reproduced in all subsequent iterations of the applicant’s pleading including in annexure A to the second further amended statement of claim; and
(c)“the agreed amount of untaken annual leave each of the Massage Therapists had at the time their respective periods of employment with the first respondent ended” is a reference to the amount appearing alongside the names of the Massage Therapists in column 2 of table 7 in annexure A to the amended statement of claim and reproduced in all subsequent iterations of the applicant’s pleading including in annexure A to the second further amended statement of claim.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Table of Contents
INTRODUCTION
[1]
THE STATUTORY FRAMEWORK
[15]
THE OMBUDSMAN’S CLAIMS AGAINST FTM
[33]
THE EVIDENCE
[53]
The Ombudsman’s evidence
[54]
The first group
[58]
Recruitment of the first group
[64]
The second group
[71]
Recruitment of the second group
[74]
Accommodation
[80]
Rules and threats
[86]
Hours and breaks
[97]
Wages and cashbacks
[112]
Pay slips, loans and deductions
[118]
Annual leave
[122]
Fair Work Information statement
[126]
End of employment
[127]
Mr Elvin’s evidence
[135]
Colin Kenneth Elvin
[136]
Background
[136]
Recruitment of the Massage Therapists and Mr Puerto
[141]
Accommodation
[149]
Rules and threats
[151]
Hours and breaks
[156]
Pay slips, loans and deductions
[164]
Cashbacks
[167]
Fair Work Information Statement and employee records
[168]
Discrimination
[170]
Post-employment events
[171]
Laura Elvin
[177]
Colin Godfrey Elvin
[183]
Ms Palma Yu
[191]
The credibility of the witnesses
[204]
Absent witnesses
[218]
THE AGREED AND UNDISPUTED FACTS
[233]
THE BURDEN AND STANDARD OF PROOF
[264]
THE INTERLOCUTORY APPLICATION
[267]
Background
[268]
The evidence
[283]
The submissions
[288]
The legal principles
[292]
Consideration
[302]
THE ISSUES
[339]
THE APPLICABLE AWARD
[340]
The law
[340]
The Health Award
[348]
Was FTM an employer in the health industry?
[352]
In what classification were the Massage Therapists employed?
[362]
The Hair and Beauty Award
[390]
THE LIABILITY OF FTM: SOME GENERAL MATTERS
[399]
THE UNDERPAYMENT CLAIMS
[402]
General
[402]
Contraventions of the award (FW Act, s 45)
[411]
Introduction
[411]
Minimum wages
[412]
Public holiday rates
[417]
Monday to Saturday overtime rates
[418]
Sunday overtime rates
[423]
Were the Therapists paid below the award rates?
[424]
To what extent were the Therapists underpaid?
[427]
Contraventions of the NES (FW Act, s 44)
[447]
Failure to pay annual leave entitlements on termination
[447]
ADDITIONAL CONTRAVENTIONS OF THE NES
[452]
Unreasonable additional hours
[452]
The claim
[452]
The law
[453]
The issues
[454]
Did FTM require the Massage Therapists work in excess of 38 hours a week?
[456]
Were the excess hours unreasonable?
[474]
Conclusion
[495]
Failure to provide a Fair Work Information Statement
[496]
The claim
[496]
The law
[497]
Did FTM fail to give the Therapists a Fair Work Information Statement?
[499]
CLAIMS RELATING TO OTHER TERMS AND CONDITIONS OF EMPLOYMENT
[507]
Unauthorised deductions
[507]
The law
[507]
The allegations
[510]
Consideration
[511]
Unreasonable requirement to spend part of wages
[519]
The law
[519]
The allegations
[532]
Consideration
[533]
THE RECORD-KEEPING CLAIMS
[566]
The law
[566]
The allegations
[572]
Consideration
[575]
FAILURE TO GIVE PAY SLIPS IN ACCORDANCE WITH THE ACT
[584]
The law
[584]
The allegations
[587]
Consideration
[594]
THE GENERAL PROTECTION CLAIMS
[598]
General rules
[599]
Adverse action contrary to s 340 of the FW Act
[607]
The allegations
[607]
The law
[610]
The issues
[628]
Did FTM threaten the Massage Therapists as alleged?
[629]
Did the threats amount to adverse action?
[672]
Did FTM rebut the presumption that the threats were made for the alleged reasons?
[673]
Adverse action contrary to s 351(1) of the FW Act
[674]
The allegations
[674]
The law
[675]
The issues
[683]
Did FTM injure the Massage Therapists in their employment by taking the action listed in [674] above?
[684]
Did FTM (or Mr Elvin) rebut the presumption that a substantial and operative reason for injuring the Massage Therapists in their employment was their race, national extraction and/or social origin?
[698]
Mr Elvin’s evidence
[699]
Race and national extraction
[704]
Social origin
[734]
Consideration
[742]
Was the action not unlawful under any anti-discrimination law in force in the ACT?
[751]
Conclusion
[765]
The coercion claims
[766]
The allegations
[766]
The law
[767]
Consideration
[770]
THE ACCESSORIAL LIABILITY CLAIMS
[775]
The allegations
[775]
The law
[776]
Liability of Mr Elvin
[782]
The underpayment contraventions
[785]
The award contraventions
[795]
The contraventions of the NES
[797]
The additional contraventions of the NES
[799]
The contraventions of provisions relating to other terms and conditions of employment
[806]
The record-keeping contraventions
[811]
The pay slip contraventions
[820]
The adverse action contraventions
[821]
The coercion contraventions
[828]
Conclusion
[829]
Liability of Mr Puerto
[830]
The underpayment contraventions
[836]
The additional contraventions of the NES
[840]
The contraventions of provisions relating to other terms and conditions of employment
[845]
The record-keeping contraventions
[849]
The pay slip contraventions
[850]
The adverse action contraventions
[854]
The coercion contraventions
[862]
Conclusion
[863]
THE EFFECT OF THE DOCA
[865]
The DOCA
[867]
The issues
[880]
Mr Elvin’s position
[883]
The Ombudsman’s position
[885]
Was the Ombudsman a creditor of FTM?
[886]
Did the DOCA extinguish the underlying claims against FTM?
[926]
Which, if any, of the claims made in the proceeding were covered by the DOCA?
[929]
Does the DOCA affect the claims against Elvin and Puerto?
[950]
CONCLUSIONS
[953]
ORDERS
[971]
REASONS FOR JUDGMENT
KATZMANN J
INTRODUCTION
In September 2017 the Australian Parliament passed the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Cth). The amendments included in the Bill were made in response to community concerns about the exploitation of vulnerable workers. Among the most vulnerable are foreign workers on temporary visas. This case is concerned with the wages and conditions of employment of seven such workers before the amendments were introduced.
Foot & Thai Massage Pty Ltd (in liquidation) (FTM) was the owner and operator of a therapeutic massage shop which traded as “foot&thai”. In this proceeding the Fair Work Ombudsman alleges that FTM contravened the Fair Work Act 2009 (Cth) (FW Act or Act) in numerous respects and that Colin Kenneth Elvin, the sole director of FTM, and Jun Millard Puerto, an employee of FTM who was responsible for supervising other FTM employees, were involved in most of these contraventions.
Numerous contraventions are pleaded in the Ombudsman’s statement of claim. The alleged contraventions include underpayment of wages to employees recruited from the Philippines to work for FTM as massage therapists; breaches of the National Employment Standards and other terms and conditions of employment prescribed by the FW Act; threats of retribution in the event that the employees complained about their situation; and poor and misleading record-keeping.
In alphabetical order the employees in question are Irene Amacio; Cristina Bantilan; Ruben Benting; Delo Be Isugan; Mayet Ortega; Janice Castaneda (formerly Mapute); and Cyrene Sarto. For convenience, from now on, when I refer to them collectively, they are the Massage Therapists or Therapists.
The Ombudsman seeks various forms of relief, including declarations, orders for compensation, and pecuniary penalties.
Liability is disputed.
In its defence FTM claimed that it could not be subjected to any order for underpayment of wages because it was a party to a deed of company arrangement executed on 11 April 2016 in respect of which each of the Massage Therapists lodged a formal proof of debt or claim and was paid for unpaid wage and annual leave entitlements and that the deed extinguished any claims or debts of those employees. Otherwise, for various reasons, FTM claimed that it did not know and could not plead to many of the matters alleged against it.
Mr Elvin and Mr Puerto also filed defences, initially raising the privilege against self-exposure to a penalty. After the Ombudsman’s witnesses gave evidence, Mr Elvin amended his defence. Mr Puerto did not. Although he was present for the duration of the proceeding, he elected to play no active part in it.
The proceeding has had a long and unhappy history.
On 13 August 2019, well after the matter had been listed for hearing and the Ombudsman had filed her evidence on liability, FTM appointed external administrators and resolved to wind up the company. On 26 September 2019 I made orders under s 500(2) of the Corporations Act 2001 (Cth) granting the Ombudsman leave to proceed against the company in liquidation: Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) [2019] FCA 1601. That brought to an end FTM’s participation in the proceeding. The liquidator chose not to appear or file submissions.
The hearing began in October 2019. At that time, only the Ombudsman’s evidence was presented. All former FTM employees whose affidavits were read were required by Mr Elvin for cross-examination and all except Ms Ortega and Ms Sarto were cross-examined. After the testimony of the last of the Ombudsman’s witnesses was received, orders were made, amongst other things, providing for the respondents to file any amended defences, affidavits, and submissions.
The orders afforded the respondents nearly two months to file amended defences and nearly four months for them to put on evidence. The orders were not complied with. The history is summarised in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 2) [2020] FCA 348.
Ultimately, Mr Elvin did file an amended defence in which he waived the privilege. He also filed a number of affidavits. Mr Puerto did not file an amended defence and did not go into evidence. Nor did he cross-examine any of the witnesses or make any submissions.
The trial was due to resume in April 2020 but was adjourned until December 2020, largely because of difficulties occasioned by the COVID-19 pandemic. On that occasion, at Mr Elvin’s request, most of the Ombudsman’s witnesses were recalled for further cross‑examination and Ms Sarto, who had not previously been required for cross-examination, was now required. Mr Elvin and his witnesses were also cross-examined on their affidavits.
THE STATUTORY FRAMEWORK
Section 44(1) of the FW Act prohibits a national system employer from contravening a provision of the National Employment Standards (NES). This subsection is a civil remedy provision: see Pt 4–1. A national system employer is defined in s 14 to include a constitutional corporation. A constitutional corporation is a corporation to which s 51(xx) of the Constitution applies (s 12), that is to say, a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth.
The NES appears in Pt 2–2 of the Act. It sets minimum standards of employment “which cannot be displaced” (s 61). Those minimum standards relate to a number of matters. Relevantly, they include maximum weekly hours of work (Div 3); annual leave entitlements (Div 6); public holiday entitlements (Div 10); and the provision of a Fair Work Information Statement (Div 12).
A person is prohibited from contravening a term of a modern award (s 45), provided that the award applies to the person (see s 46). A modern award applies to an employee and an employer if it covers them, is in operation, and no other provision of the Act provides or has the effect that the modern award does not apply to them (s 47). Unless the modern award has ceased to operate (see s 48(4)), a modern award covers an employee and employer if the award is expressed to cover them (s 48(1)) or a provision of the Act, an order of the Fair Work Commission made under the Act, or an order of a court so provides or has that effect (s 48(2)).
Sections 62 and 90 set some of the minimum standards under the NES.
Section 62 imposes a ceiling on the number of hours an employee may be required to work. It relevantly limits the hours of work an employer may request or require of a full-time employee to 38 hours unless the additional hours are reasonable and gives an employee the right to refuse to work such additional hours as are unreasonable. It also prescribes a list of factors that must be taken into account in determining whether the additional hours are reasonable or unreasonable as the case may be.
Section 90(2) requires an employer to pay an employee for any period of paid leave an employee has not taken when the employee’s employment comes to an end.
The FW Act also provides for other conditions of employment.
Section 323(1)(a) requires a national system employer to “pay an employee amounts payable to an employee in relation to the performance of work… in full, except as provided by s 324”. Amongst other things, the amounts include the following if they become payable during a relevant period: loadings; overtime or penalty rates; and leave payments.
Section 324 permits an employer to deduct an amount from an employee’s wages or salary provided they are authorised in writing by the employee or by law or court order to do so and the amount of the deduction is specified.
Section 325 prohibits an employer from requiring an employee, directly or indirectly, “to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances”.
Section 326 provides that terms in an award, enterprise agreement or contract of employment have no effect if they allow an employer to deduct an amount from an employee’s wages or salary or to make a payment to an employer if the deduction or payment is for the benefit of the employer or a related party and is unreasonable in the circumstances.
Section 327 relevantly provides that in proceedings for the recovery of an amount payable to an employee in relation to the performance of work:
(b)any amount that the employee has been required to spend contrary to subsection 325(1), or in accordance with a term to which subsection 326(3) applies, is taken never to have been paid to the employee.
Section 340 prohibits an employer from taking adverse action against an employee, including by dismissing or threatening to dismiss the employee, amongst other things, to prevent the exercise by the employee of a workplace right. Section 351 prohibits an employer from taking such action for various reasons including the employee’s race, national extraction or social origin. Section 343 relevantly prohibits an employer from taking or threatening to take action against an employee with intent to coerce the employee from exercising a workplace right. These sections create some of the “general protections” for which the FW Act provides.
The FW Act and the Fair Work Regulations 2009 (Cth) (FW Regulations) also impose obligations on employers with regard to the records that must be made and kept and the use to which they may be put and the issuing and content of pay slips.
Accessorial liability is covered by Pt 4–1 Div 4.
A person who is “involved” in the employer’s contraventions within the meaning of s 550 of the Act is equally liable for those contraventions.
Section 793 (in Pt 6–5) deals with the liability of corporations. In substance, it deems certain conduct engaged in by officials of a body corporate or by others at their direction or with their consent or agreement to be action also engaged in by the body corporate. It also provides for a simple method of establishing knowledge, intention, opinion, belief or purpose.
All these provisions were in force at all relevant times. Statements in these reasons concerning the content of these and other provisions of the Act and Regulations are intended to apply to the period of the Ombudsman’s claim regardless of the tense of the verb used to introduce them.
THE OMBUDSMAN’S CLAIMS AGAINST FTM
The Ombudsman alleged that FTM contravened the FW Act in the following respects.
First, the Ombudsman alleged that in around late August 2012 to early September 2012 Mr Elvin and Mr Puerto advised Ms Amacio, Ms Bantilan and Ms Isugan that they would be required to repay FTM $800 in cash each fortnight because FTM’s business located at shop 6, 36 Weedon Close Belconnen (the Belconnen shop) was not earning enough money and not getting enough customers and that, on and from 26 August 2012 until about 2 June 2013, FTM, through Mr Elvin and Mr Puerto, instructed them to do so. Similar allegations were made with respect to Ms Castaneda, Ms Ortega and Ms Sarto. The advice was said to have been given to them on or about 11 April 2013 and the instruction in the period on and from 21 April 2013 to 5 January 2014. Payments purportedly made pursuant to the instructions were described in the Ombudsman’s pleadings as “Fortnightly Cashback Payments”.
The Ombudsman alleged that this conduct contravened s 325(1) of the FW Act.
Second, the Ombudsman alleged that the deductions from the wages payable to the Massage Therapists for “staff loans” were impermissible deductions and that FTM thereby contravened s 324 of the Act.
Third, the Ombudsman alleged that, having regard to s 327 of the Act, as a result of the fortnightly payments and the deductions for loan repayments, the ordinary hourly rates paid to the Massage Therapists were below the award rates. The Ombudsman contended that the Massage Therapists were covered by the Health Professionals and Support Services Award 2010 (Health Award) or, alternatively, by the Hair and Beauty Industry Award 2010 (Hair and Beauty Award).
Fourth, the Ombudsman alleged that FTM did not always pay the Massage Therapists overtime when they worked in excess of 76 hours a fortnight in contravention of the relevant award.
Fifth, the Ombudsman alleged that FTM failed to pay the Massage Therapists public holiday rates in contravention of the relevant award.
Sixth, the Ombudsman alleged that FTM failed to pay the Massage Therapists on termination of their employment their annual leave entitlements in contravention of the relevant award and s 90(2) of the FW Act.
Seventh, the Ombudsman alleged that FTM failed to give each of the Massage Therapists a Fair Work Information Statement before, or as soon as practicable after, they commenced employment in contravention of s 125(1) of the FW Act.
Eighth, the Ombudsman alleged that FTM required or requested the Massage Therapists to work unreasonable additional hours in contravention of s 62(1) of the Act.
The basis of this claim was that the Massage Therapists were required to work more than 38 hours a week without receiving their minimum entitlements to overtime under the relevant award; they were not supervising or managing other employees; and there were risks to their health and safety from working the number of hours they worked on average each week.
Ninth, the Ombudsman alleged that there were a number of contraventions relating to the making and keeping of records the provision of pay slips.
The Ombudsman claimed that, in contravention of s 535(1) of the FW Act and regs 3.34, 3.36(1), and 3.40 of the FW Regulations, FTM failed to record:
(1)the number of overtime hours worked by each of the Massage Therapists each day and when they started and ceased working overtime hours;
(2)the amount of annual leave taken by the Massage Therapists and the balance of their respective entitlements to annual leave from time to time; and
(3)the manner of termination of their employment and the name of the person who acted to terminate their employment.
The Ombudsman claimed that from the fortnightly pay period commencing 31 March 2014 until the end of their respective periods of employment, in contravention of s 536(1) of the FW Act, FTM failed to provide the Massage Therapists with pay slips within one working day of paying them, or at all.
The Ombudsman also claimed that, in contravention of s 536(2) of the Act, during the period in which FTM made deductions from their pay it failed to record on the pay slips the name, or the name and number, of the fund or account into which each of the deductions was paid as prescribed by reg 3.46(2) of the FW Regulations.
Furthermore, the Ombudsman claimed that, in contravention of reg 3.44(1) of the FW Regulations, FTM failed to ensure that the records were not false or misleading because they did not disclose the fortnightly cashback payments.
She also claimed that, by failing to disclose the fortnightly cash refunds when it produced its pay records to the Ombudsman in answer to a notice to produce, FTM made use of entries in the pay records knowing that they were false or misleading, in contravention of reg 3.44(6) of the FW Regulations.
Finally, the Ombudsman pleaded contraventions of the general protections provisions of the FW Act.
The Ombudsman claimed that FTM contravened ss 340(1)(b) and 343(1)(a) of the Act by threatening to send the Massage Therapists back to the Philippines and to take reprisals against their families if they complained to the authorities about working conditions.
She also claimed that FTM took adverse action against the Massage Therapists because of their Filipino race, national extraction and/or “social origin” in contravention of s 351 of the Act.
THE EVIDENCE
The evidence was lengthy. It consisted of a large volume of documents and a substantial body of oral evidence. The Court Book alone ran to nearly 5,000 pages.
The Ombudsman’s evidence
The Ombudsman read affidavits sworn by eight former FTM employees: the seven Massage Therapists and Bartolome Durado, another employee. As I mentioned earlier, all but Ms Ortega were cross-examined by Mr Elvin. Each witness except for Mr Durado gave evidence with the assistance of an interpreter. The Ombudsman also read affidavits of Luke Thomas, a Fair Work Inspector and Team Leader, and Ronnie Wong, an Assistant Team Leader in the Calculations Team at the Office of the Ombudsman. Mr Wong was required for cross‑examination. Mr Thomas was not.
Not all the evidence was controversial. Much of it was uncontradicted.
Employees recruited from the Philippines commenced employment with FTM in two separate groups. There were about 14 massage therapists in the first group and seven in the second. The first group arrived in Australia on 19 June 2012. Included in that group were Ms Amacio, Ms Bantilan, Mr Benting and Ms Isugan. The evidence indicates that a number of the other members of the group returned to the Philippines before this proceeding was instituted. The second group arrived in Australia on 13 April 2013. It included Ms Castaneda, Ms Ortega and Ms Sarto.
Mr Durado immigrated to Australia from the Philippines in 1990 and worked for FTM from 22 August 2014 until 26 October 2015, performing cleaning, maintenance work and some administrative tasks. The Ombudsman makes no claims with respect to him. His evidence corroborated the evidence of the Massage Therapists.
The first group
All the Therapists in both groups were born in the Philippines.
Ms Isugan was born in Cebu. Her first language is Cebuano. She can speak Tagalog and English but has some difficulty understanding spoken English. She started working as a massage therapist in Cebu in 2005, when she was about 17. When she accepted employment with FTM she was working 12 hours a day, six days a week, earning the equivalent of around $35 per week.
Ms Amacio and Ms Bantilan worked for the same business.
Ms Amacio was born in Leyte. Her first language is also Cebuano. She can also speak Tagalog and English well but has some difficulty understanding spoken English. She finished high school in the Philippines and started working as a massage therapist in 2006 when she was about 20 years old. Her husband and two young children live in Cebu.
Ms Bantilan was born in Daanbantayan. She speaks Cebuano, Tagalog and English but sometimes finds spoken English difficult to understand. She finished high school when she was 17 and also started working as a massage therapist in Cebu when she was about 20. Her husband and two children, aged eight and ten at the time she swore her affidavit, live in Cebu.
Mr Benting was born in Cadiz City. He can speak Cebuano, Tagalog, Hiligaynon and English, although he has some difficulty understanding spoken English. He finished high school in the Philippines and completed a Bachelor of Elementary Education at a university in Cebu in 2009. He started working as a massage therapist in Cebu in 2010, when he was about 22. He earned the equivalent of around $40 a week. His parents and siblings live in the Philippines.
Recruitment of the first group
In November 2011 Mr Elvin was visiting the Philippines and had a massage at the business where Ms Isugan and Ms Bantilan worked. Later that day, after Ms Isugan and Ms Bantilan had finished work, they were approached by an uncle of Mr Elvin who introduced them to Mr Elvin Mr Elvin asked them if they wanted to work for him in Australia and invited them to a meeting that night at the Marriott Hotel in Cebu to discuss the matter. Mr Benting was separately invited to this meeting but did not attend. Approximately 15 people attended the meeting, including Mr Elvin and his father, Colin Godfrey Elvin (Elvin Snr). Mr Elvin explained that he was advertising for full-time massage therapists in Australia, with free accommodation, a free plane ticket to Australia, and a salary of $52,000 per year including sick leave and holiday pay. Both Ms Isugan and Ms Bantilan were interested as it offered them the chance of earning substantially higher wages than they were earning in the Philippines. Accordingly, they gave Mr Elvin their contact details. In December 2011, Ms Isugan and Ms Bantilan met with Mr Elvin again for an “interview” in which they gave him a massage. He said he would contact them about the role shortly thereafter.
In January 2012, Mr Benting attended a meeting at the SM Mall in Cebu where he met Mr Elvin and Mr Puerto. He had been encouraged to go to the meeting by some of his workmates. At the meeting, Mr Elvin offered him a job as a massage therapist in Australia on similar terms. Mr Benting told Mr Elvin he was interested in the job and gave him his contact details. Mr Elvin said that his father had been impressed by a massage Mr Benting had given him, so he would hire Mr Benting.
In around January or February 2012, Ms Isugan, Ms Bantilan and Mr Benting attended another meeting with Mr Elvin and Mr Puerto and about 12 other massage therapists at the Radisson Blu Hotel in Cebu. Mr Elvin told the group that they had been hired to work for him in Australia and that Mr Puerto would assist them to obtain Australian visas. At this meeting, Mr Puerto asked them whether they needed to borrow any money to arrange their visa documents. He told them Mr Elvin was willing to lend them some money but they would have to pay it back from their salaries when they started working. Before they emigrated, Ms Bantilan borrowed the equivalent of about $500 to 600, Ms Isugan borrowed the equivalent of around $350, and Mr Benting borrowed the equivalent of $80. Mr Elvin maintained that he loaned them substantially more than this but provided no evidence to support his contention.
In February 2012, Mr Puerto contacted Ms Amacio and asked if she would like to work in Australia with Mr Elvin. One of her colleagues had provided Mr Elvin with her telephone number. Ms Amacio met Mr Puerto at the National Statistics Office where she obtained a certified birth certificate. This was to assist Mr Puerto to arrange her Australian visa. He explained that another Filipino massage therapist had had problems obtaining a birth certificate and she was being hired instead. He offered her a job as a massage therapist on similar terms to the offers made by Mr Elvin to the others.
In around late February or early March 2012, Ms Isugan, Ms Bantilan and Ms Amacio met Mr Puerto at the SM Mall and signed contracts of employment with FTM that had already been signed by Mr Elvin on FTM’s behalf. At this meeting Ms Amacio borrowed the equivalent of $150 from Mr Puerto for living expenses. Ms Bantilan and Ms Amacio recalled that Mr Puerto told them at this meeting that Mr Elvin had paid for them to attend a Thai massage course at the NKYR Academy in Cebu, which they needed to complete in order to obtain a visa. Ms Amacio, Ms Bantilan and Mr Benting completed this course in 2012.
In around June 2012, Mr Puerto met with Ms Bantilan at the SM Mall and asked her to sign her employment contract again. On 13 June 2012, Mr Benting signed a similar employment contract.
After their visas had been granted, the first group flew to Sydney with Mr Puerto on 18 June 2012. From 19 June to 23 June 2012, the group stayed at 44A Edwards Street, Higgins, where Mr Elvin’s parents lived, before moving to the house at the rear of the premises (44B Edwards Street) (the Residence), on around 24 June 2012 after a group of Thai workers had moved out.
The second group
Ms Castaneda was born in Davao City. Her first language is Visayan. She can speak, read and write in Tagalog and English, although has some difficulty understanding spoken English. After completing a Bachelor of Science and Nursing she began working as a massage therapist in Manila in 2008 at the age of about 25. In her last job in the Philippines, she worked eight hours a day, six days a week and earned the equivalent of $240 a month. Her family lives in the Philippines.
Ms Ortega was born in Manila. Her first language is Tagalog. She can also speak, read and write in English but sometimes needs assistance to understand spoken English. Ms Ortega completed a diploma in computer programming and a course in massage therapy and started working as a massage therapist in May 2007 when she was 21. Before coming to Australia, Ms Ortega worked eight hours a day, six days a week and earned the equivalent of around $300 a month. Her son, parents and sister live in the Philippines.
Ms Sarto was born in Tupi, South Cotabato. Her first language is Tagalog and she can speak, read and write English well. After finishing high school she completed a course in hotel management. She started working as a massage therapist in 2008 when she was about 21 at the same business as Ms Ortega. Before coming to Australia, she earned the equivalent of around $250 a month. Her parents and siblings live in the Philippines.
Recruitment of the second group
The second group were recruited by FTM in a similar way to the first.
In June and August 2012 Ms Castaneda, Ms Ortega and Ms Sarto each learned that Mr Elvin was advertising positions for massage therapists in Australia. They understood that there was to be a meeting about the matter at the Ascott Makati Hotel in Manila. They each attended this meeting in about August 2012. There, they met Mr Elvin and Mr Puerto. At the meeting Mr Puerto asked them to give Mr Elvin a trial massage. After they did so, Mr Elvin described the position being advertised. He told them they would be paid a salary of $52,000 a year, they would work eight hours a day for five days a week, and would have paid holidays, free accommodation, free utilities, free food, and transport to and from work. Each of them was interested in the position as it promised a substantial increase in their income. They were asked to provide various documents to Mr Puerto in order to obtain Australian visas.
In around September or October 2012, Ms Castaneda, Ms Ortega and Ms Sarto attended another meeting with Mr Elvin and Mr Puerto at the Ascott Makati Hotel. At this meeting, they were each offered the position and they each signed an employment contract, which Mr Elvin had already signed. Mr Elvin spoke about the contract in English, with Mr Puerto interpreting. The terms were substantially the same as had been described at the initial meeting.
On around 5 April 2013, Mr Puerto asked Ms Castaneda, Ms Ortega and Ms Sarto to attend an employment agency in Manila where they signed the same employment contracts they had already signed. Ms Castaneda said that this was because the employment agency needed a copy of the contract.
On 10 April 2013, Ms Castaneda, Ms Ortega and Ms Sarto met Mr Puerto at a hotel near Robinson Mall in Manila where he told them that the business was “not doing very well” and they would not be paid their full salary. He said they would be paid $1800 every fortnight, but would have to pay back $800. He said that they would be paid their full salary when the business “picked up”.
After their visas had been granted, the second group arrived in Australia with Mr Puerto on 13 April 2013. They moved into the Residence shortly thereafter.
Accommodation
The Massage Therapists lived at the Residence with Mr Puerto. The house had four bedrooms and three bathrooms. Three rooms could fit four people and one room could fit five or six. After the second group arrived in April 2013, there were approximately 16 or 17 people living in the house, with Mr Puerto sleeping in the living room on a couch.
Ms Isugan and Mr Benting said they were compelled to live at the Residence; they were not given a choice of living anywhere else. Ms Amacio and Ms Bantilan said that when they moved into the Residence, Mr Elvin confiscated their passports. Mr Elvin challenged Ms Bantilan (but not Ms Amacio) on this matter, but she maintained that he had.
Ms Amacio, Ms Bantilan, Ms Isugan and Mr Benting deposed that they were not allowed to leave the Residence for the first seven or eight months other than to go to work. They said this was because Mr Elvin was concerned about immigration officials discovering that they were living at the house. In cross-examination Ms Isugan and Ms Bantilan said that they were only confined to the Residence for the first three months.
From around late 2012 or early 2013, Ms Amacio, Ms Bantilan, Ms Isugan and Mr Benting said they were permitted to leave the house on their days off but they had a curfew of 3 pm. They said this curfew was extended to 5 pm or 6 pm later in 2013, and to 7 pm or 8 pm in 2014. Ms Ortega and Ms Castaneda deposed that when they arrived in April 2013 the curfew was 7 pm. In cross-examination Ms Amacio testified that the curfew was ultimately lifted, as opposed to being further relaxed, but she could not recall when this occurred.
There was a gate at the side of 44A Edwards Street that provided access to the Residence. The Massage Therapists deposed that they could not leave the Residence without the gate being opened for them. They said that the gate was locked at around 11 pm each night and opened in the morning before they left for work. They said that “Colin’s mum”, Mrs Elvin, Mr Elvin or Mr Puerto would lock the gate and the therapists did not have access to the key.
Mr Elvin put to some of the Therapists (Ms Amacio, Ms Bantilan, Ms Castaneda and Ms Isugan) that the gate was not actually locked but was merely bound by a chain to give the appearance that it was locked. But they were resolute. Each of them maintained that the gate was locked overnight. In addition, Ms Isugan said that if they wanted to do exercises in the morning, or leave the Residence on their days off, they needed to ask Mrs Elvin to open the gate. Ms Castaneda and Ms Bantilan testified that if they left the Residence on their days off and Mrs Elvin was not at home when they returned, they would need to wait for her to return to open the gate, or call Mr Puerto to do the same.
Rules and threats
The Massage Therapists deposed that there were a number of rules they were required to observe. The rules prohibited them from having friends, including boyfriends or girlfriends; speaking to anyone about their pay and conditions; leaving the house at night; bringing their mobile phones to work; speaking Filipino at work or letting the customers know they were not Thai; drinking alcohol or soft drinks; eating junk food or white rice; and complaining “about anything”. Mr Elvin told them that if they did not follow the rules, or if they knew someone who was breaking a rule and did not report it, they would be sent back to the Philippines. These rules were regularly repeated during staff meetings between 2012 and 2015, and Mr Puerto would interpret these rules into Cebuano or Tagalog.
Some of the therapists (Ms Castaneda, Mr Benting and Ms Bantilan) deposed that Mr Elvin instructed them to tell immigration officials, in the event of an inspection, that they worked eight hours a day for five days a week, with a 30 minute break, and received holiday pay and a salary of $52,000 a year. They said he also them told not to record their actual hours of work. Consistent with the rules and these instructions, when police and immigration officials attended the Belconnen shop in around July 2012, Ms Bantilan told them she was “happy and the work was good”. Ms Amacio and Ms Bantilan said that Mr Elvin returned their passports after he was informed of the inspection.
In July 2012, Mr Elvin made threats to the first group that if they told anyone about their pay and conditions at FTM, including their families or immigration officials, he would arrange for their families in the Philippines to be killed. Mr Elvin told the therapists that it would be “easy” for him to pay someone to do this and Ms Amacio and Mr Benting deposed that he said it would only cost him 10,000 pesos. These threats were made during a late night meeting with the first group that lasted until 4 am. Mr Elvin was “very angry” during the meeting, and screamed and swore at the therapists. Mr Puerto translated what Mr Elvin was saying into Cebuano and at one point, according to Ms Amacio, made a gesture to the group with his finger as if he was slicing his throat. Earlier in the night Mr Elvin had driven the group home from the Belconnen shop “very fast” while swerving from one side of the road to the other. He was apparently angry that one of the therapists had spoken to a Filipino customer in Tagalog, and yelled at the group about the rules he expected them to follow.
Mr Elvin made similar threats to hurt the Therapists’ families or send them home to the Philippines during subsequent meetings between 2012 and early 2014. Although the Massage Therapists from the second group did not say that Mr Elvin directly threatened to have their families killed, they were each aware that threats of this nature had been made to the first group.
Ms Ortega, for example, said that in around 2013 and 2014 some of the therapists in the first group reported that Mr Elvin told them that if they told anyone about their situation he would hire someone to kill their families at a cost of only 10,000 pesos and they were “very scared of him”. Ms Ortega said that she knew that it was not impossible to hire a killer in the Philippines and she believed what she was told. Ms Sarto deposed that in around late April or May 2013 she had a conversation with Ms Amacio in which she told Ms Amacio that Mr Elvin had “such strict rules” and that she was scared to do the wrong thing and be sent home. Ms Sarto went on to say:
Irene then said to me, words to the following effect: “You must not complain about anything. He is scary. He told us if we say anything to Immigration that he will get someone in the Philippines to hurt and kill our families. He said he will really do it. I think he is serious.”
Ms Sarto said she was “even more scared” when she heard that. She added:
[Ms Bantilan] and [Ms Amacio] also told me that if they saw me breaking the rules that they had to tell [Mr Elvin] or [Mr Puerto] otherwise they would get in trouble and be sent home.
All the Therapists were afraid of breaking the rules and believed they would be sent home if they did so, or that their families would be hurt or killed. This was reinforced when Mr Elvin sent home several therapists to the Philippines between June 2012 and early 2014 for breaking his rules or for alleged underperformance.
All the Therapists were frightened of Mr Elvin, particularly when he was angry. Ms Bantilan deposed that Mr Elvin became angry whenever someone complained about their hours or wages, and Mr Benting said he would often scream and swear at the therapists. Mr Benting testified that he was “more angry than calm” when dealing with his employees. Ms Castaneda said that she was “so scared” because Mr Elvin yelled at them “very easily”.
The Therapists understood that Mr Elvin was the owner and manager of FTM and had responsibility for their wages and conditions, and for the hiring and firing of the therapists. Mr Elvin attended the Belconnen shop most days and stayed for four to six hours. There were CCTV cameras outside the massage rooms, in the reception area, and in the staff areas at the shop. The cameras also recorded sound, according to Mr Durado.
The Therapists said that Mr Elvin would spend most of his time monitoring the CCTV footage on his computer and reviewing the customer booking records. Ms Sarto said he sometimes went to the staff lounge to tell therapists to do work as he could “see in the cameras that [they] are not working”. Mr Elvin also had regular one-on-one meetings with some of the therapists where he would speak about their performance or the performance of others and tell them how to speak to customers and what to say if immigration officials asked them any questions about their employment at FTM. Ms Castaneda said that Mr Elvin regularly spoke to her about her performance and warned her that, if she did not improve, she would be sent back to the Philippines.
The Therapists understood that Mr Puerto was a supervisor at the Belconnen shop and an assistant to Mr Elvin. He did not massage any customers. Mr Puerto would frequently remind the therapists of Mr Elvin’s rules and would pass on or translate his directions. Mr Puerto was at the shop most days and lived at the Residence with the therapists. Ms Sarto, Mr Benting and Ms Bantilan deposed that Mr Puerto would watch them and listen to their conversations, both at the shop and at the Residence. Ms Amacio and Mr Benting said he would confiscate their mobile phones at night and Mr Benting said he checked whether they were asleep and would get angry if they were not. Mr Benting said that their phones were mainly confiscated by Mr Puerto in 2012. After FTM opened another shop in Phillip, ACT, Mr Puerto attended the Belconnen shop less frequently and moved out of the Residence in around November 2014.
Hours and breaks
On 24 or 25 June 2012, the first group commenced work at the Belconnen shop. The second group commenced on 15 April 2013. The shop was open from 10 am to 10 pm seven days a week and most public holidays. The closing time was extended to 10.30 pm in around September 2013. Every Massage Therapist worked six days a week, including on weekends and public holidays. Those who were rostered to work on the same day would commute to and from work in a van driven by Mr Elvin, Mr Puerto or occasionally Mr Elvin Snr. Mr Benting and Ms Castaneda deposed that the van did not have enough seats for everyone, so some of them sat on the floor. Ms Castaneda testified that initially the only vehicle that transported the therapists was a seven-seater red Tarago, before Mr Elvin purchased a new van in 2014.
They arrived at work at around 9.45 am and began massaging customers at 10 am. They did not finish until the shop closed, after which time they would spend an additional 15 to 30 minutes cleaning massage rooms, showers, toilets and saunas before being transported back to the Residence. This was sometimes not until 11 pm, according to Mr Benting and Ms Sarto.
Ms Amacio testified that, when they first arrived in Australia, Mr Elvin told the therapists to limit the amount of massage hours to seven per day. Ms Bantilan said they were told to limit massage hours to five or six during the first two months. Each Therapist reported carrying out more hours of massage than this:
(a)Ms Amacio and Ms Bantilan said they massaged customers between 8.5 and 9.5 hours a day. However, Ms Amacio said this was only on a busy day;
(b)Ms Isugan said she completed between seven and 9.75 massage hours;
(c)Mr Benting testified during cross-examination that he performed up to 9.5 massage hours on a busy day, and a minimum of two to three hours if it was not busy;
(d)Ms Ortega said she spent between eight and nine hours massaging customers on a busy day, and six to seven on a regular day;
(e)Ms Sarto said she massaged customers between 8 and 10 hours a day; and
(f)Ms Castaneda merely said she was working “long hours every day”.
The Therapists performed various types of massage, including shiatsu, deep tissue, Swedish, foot reflexology, aroma, Thai oil, Thai massage, remedial, oil and dry massage, and head, shoulders and back massage. Each massage would last between 30 minutes and two hours, and appointments were sometimes scheduled without breaks between customers. Mr Durado said that he saw the Massage Therapists take breaks of between 10 and 30 minutes between customers. The Therapists reported feeling tired and sore due to the workload.
In between appointments, the Therapists folded towels, mopped floors, refilled bottles of oils and lotions, cleaned and prepared hot towels for the next customer, and practised their massage skills on Mr Elvin or each other. Ms Isugan testified that there were therapist assistants who would assist with these tasks but they did not start work until 4 pm. She said that even with this assistance, “there [were] always tasks to do…we never stop”. Mr Benting stated that the therapist assistants would sometimes attend in the afternoons, but would only attend the shop daily when it was “very busy”. Ms Castaneda said that there were therapist assistants worked in two shifts, one in the morning and one in the afternoon, but she still had to perform cleaning tasks despite their assistance.
The Massage Therapists had breaks for lunch and dinner at different times each day depending on their customer bookings. They usually had a lunch break sometime between 12.30 pm and 1.30 pm, and a dinner break between 4.30 pm and 7.30 pm. They said their breaks lasted between 15 and 30 minutes, although if they were busy, their breaks would only be 10 to 15 minutes, or they had no break at all.
Ms Bantilan, Ms Isugan and Mr Benting deposed that throughout 2012 they were not permitted to leave the Belconnen shop during their breaks as Mr Elvin told them that they “always need[ed] to be there for the customers”. For the first three months of this period, Ms Isugan said that Mr Puerto would purchase food for the therapists as required.
From early 2013, after the second group arrived, Ms Bantilan, Ms Isugan and Mr Benting said they could leave the shop if they had a vacant slot between appointments and there was no other tasks to do. The therapists were required to ask for permission from the receptionists before they left the shop, and notify them when they returned. Ms Amacio said that the receptionists would review the electronic booking system used to record customer appointments — known as Kitomba — and inform her when she could take her break. Ms Bantilan said that they often had to “beg” the receptionist for a break, and they sometimes refused if there was a customer waiting. According to Ms Isugan and Ms Sarto, when they managed to get a break, the break was never more than 30 minutes.
Mr Elvin challenged the therapists extensively on this evidence in cross-examination.
Ms Isugan testified that they were not permitted to leave the Belconnen shop for the “first few months”. She said that she did not recall having long breaks between customers because “there were other tasks we had to do”. She maintained that she was massaging at least eight to nine customers per day. She also testified that the time of her lunch break varied according to customer bookings and was not always between 12.30 and 1 pm.
Ms Bantilan maintained that she massaged up to 9.5 hours a day, and that she never had breaks between massages of one to two hours. She also said that there were never any times that, after massaging customers for two consecutive hours, she received a break of 30 minutes to one hour. In addition, she said that she was not allowed to leave the Belconnen shop during working hours until after the second group arrived.
Mr Benting similarly maintained that the therapists were not allowed to leave the Belconnen shop during working hours until the second group arrived. He conceded that he sometimes had breaks between massages that were longer than 30 minutes and up to two hours if it was not busy. In addition he conceded that he did not always have lunch or dinner at the times specified in his affidavit, and that it depended on his customer appointments on the day. He disputed the accuracy of the Kitomba records.
Ms Castaneda said there were times when she had breaks between massages of one or two hours, although noted that she was performing other tasks during these breaks.
Ms Amacio denied that she ever had meal breaks of one to two hours. However when her attention was drawn to a Kitomba record from 9 December 2012, she said that it was open to her to have a meal break during a two-hour period between customers. She said she never carried out less than four hours of massage a day. Although Mr Elvin put to Ms Amacio that she never massaged for 9.5 hours a day, the Ombudsman referred the Court to several Kitomba records from April 2014 which showed that she did.
Ms Sarto maintained that her appointments were usually booked without any breaks in between customers, despite some Kitomba records indicating otherwise.
Wages and cashbacks
The Massage Therapists said that their salaries were paid fortnightly by FTM but the amount was not always the same. They said that the amount was usually between $1,700 and $1,900, but they sometimes received payments of $2,100. The Therapists were unsure why this occurred.
Upon their commencement at FTM, Mr Puerto told each therapist to create a bank account with the St George Bank into which their salaries would be paid. In around April 2014, Mr Elvin told the therapists to stop using this account and to instead establish an account with the National Australia Bank (NAB). Thereafter their salaries were paid into that account.
Each of the Massage Therapists transferred a significant portion of their salary to their families in the Philippines to assist them with education, health care, and other matters.
Within three months of their arrival in Australia, Mr Elvin told the therapists in the first group at a meeting in the Residence that they would need to “give back” $800 each fortnight because “the shop [was] not doing well”. For a period of approximately eight months from about September 2012 and June 2013, every fortnight the Therapists from the first group were required to withdraw $800 in cash from an ATM and provide it to Mr Elvin or Mr Puerto. The Therapists would go to an ATM on their breaks or their days off to make the withdrawals. Occasionally Mr Elvin or Mr Puerto would drive a group of them to an ATM at a nearby shopping mall. After the second group arrived, Mr Elvin told the first group that they would no longer need to pay back any amounts as the business had improved.
In a supplementary affidavit, Ms Amacio said that there were at least two occasions when she paid back less than $800 but compensated by paying back more than $800 in subsequent fortnights to make up the difference. Ms Bantilan gave similar evidence, also in a supplementary affidavit.
Between April 2013 and January 2014, the Therapists in the second group were also required to withdraw $800 in cash each fortnight and provide it to Mr Elvin or Mr Puerto. In a supplementary affidavit, Ms Castaneda deposed there was one occasion when she did not pay back $800 as she wanted to send that money to her family. She said she repaid the outstanding amount in subsequent fortnights. In January 2014, Mr Puerto informed the therapists that the business had improved and that they no longer needed to pay back any amounts.
Pay slips, loans and deductions
Each of the Therapists in the first group deposed that they received pay slips from Mr Elvin or Mr Puerto by hand in 2012 and 2013, that they stopped receiving regular pay slips after 2013, and that in 2015 they received between three and four. The Therapists in the second group similarly reported receiving payslips initially by hand, and not receiving pay slips after mid-2014. The pay slips recorded the Massage Therapists as working 38 hours a week or 76 hours a fortnight, which they said was not consistent with their actual hours of work. None of the pay slips recorded the $800 they paid during the so-called cashback periods.
A number of pay slips recorded deductions described as “staff loans”. The relevant pay slips were annexed to the Therapists’ affidavits. The Therapists believed these deductions were to cover the amounts they had borrowed from Mr Elvin in the Philippines, although they all remarked that the deducted amounts were greater than the loans they had received:
(a)a total of $1,500 was deducted from Ms Amacio’s wages despite receiving a loan of around $150;
(b)a total of $1,739.44 was deducted from Ms Bantilan’s wages despite borrowing approximately $500 to $600;
(c)a total of $1,684.93 was deducted from Ms Isugan’s wages despite being loaned approximately $350; and
(d)a total of $1,500 was deducted from Mr Benting’s wages despite being loaned only about $80.
Ms Castaneda, Ms Ortega and Ms Sarto deposed that they never received a loan from either Mr Elvin or Mr Puerto. Yet, Ms Castaneda’s first two pay slips disclose that a total of $638.41 was deducted from her wages. She deposed that Mr Elvin and Mr Puerto told her in the Philippines that they would cover flight, visa and medical costs. Ms Ortega’s first two pay slips similarly reveal that a total of $672.91 was deducted from her wages, despite never receiving a loan or signing any document agreeing for a deduction to be made. Similarly, a total of $638.41 was deducted from Ms Sarto’s wages despite never receiving a loan or agreeing for a deduction to be made. In each case the deductions are recorded as “staff loan[s]”.
Mr Elvin cross-examined Ms Isugan about other payments he made to her while in the Philippines, such as payments for dental work, and whether she regarded these payments as “loans”. Ms Isugan said that they believed that Mr Elvin had “volunteered to pay for it, that it was … free”. Mr Elvin questioned Mr Benting, Ms Castaneda, Ms Amacio and Ms Bantilan about other payments he had made to them for airfares, training expenses, birth certificates and security clearances. But in no case did he suggest to them that these payments were loans.
Annual leave
The Massage Therapists said they had two weeks of annual leave each year. They took this leave over the Christmas/New Year period when the Belconnen shop was closed. During this time, the Therapists would fly to the Philippines together with Mr Puerto, who would also accompany them on the return journey. Ms Isugan and Ms Bantilan said they paid for their own flights in 2012 and 2013, but Mr Elvin paid for some or all of their airfares thereafter. Mr Benting said Mr Elvin paid for his flights in 2013, 2014 and 2015. Ms Castaneda, Ms Ortega and Ms Sarto said they paid for their own flights in 2013 and Mr Elvin paid for part of them in the following years.
Ms Isugan stated that she spent only eight days of annual leave in the Philippines in 2012 and 12 days in 2013.
Ms Bantilan suggested that she did not receive a total of 14 days annual leave every year. She said that the “first holiday was about 8 days, the second one was about 10 days, the third one was 14 days, and the fourth one in 2015 was 14 or 15 days”.
Ms Bantilan was taken to an apparent inconsistency between this evidence and a statement she made to the Australian Federal Police on 18 April 2016. In that statement, she said she had two weeks annual leave in 2013, rather than 10 days. She clarified that her leave that year consisted of 10 days in the Philippines and two days in Australia. She also accepted there was an inconsistency between her affidavit and another statement she made on 18 January 2018 in which she said that Mr Elvin covered the cost of her annual flights to the Philippines. She said she “might have forgotten to mention” that she paid for her own flights in 2012 and 2013 and that Mr Elvin paid for half the cost of the flights in 2014 and 2015.
Fair Work Information statement
Each of the Massage Therapists gave evidence that they were not provided with a Fair Work Information Statement.
End of employment
Ms Isugan’s employment with FTM ended on 26 October 2015. She deposed that Mr Elvin dismissed her because she was having a relationship with Mr Durado. Mr Durado was also dismissed. Ms Isugan said that she left the Residence at around 11 pm on 26 October 2015 with only her rosary beads, wallet, iPad and phone. She testified that she thought it was “good luck” the gate was unlocked at the time. In late 2015, she applied for a personal protection order against Ms Elvin, which was granted in early 2016.
In November 2015 Ms Isugan lodged an application for unfair dismissal against FTM with the Fair Work Commission. She made a statement for the purposes of this application on 18 January 2018. On 8 March 2019, the Commission found that her dismissal was harsh, unjust and unreasonable and ordered FTM to pay her compensation of $29,228.55.
Ms Isugan provided a “Request for Assistance” form to the Ombudsman on 10 December 2015. She said she did not mention the cashbacks because her lawyer at the time did not ask about them.
Ms Sarto, Ms Ortega and Ms Castaneda resigned from FTM in late 2015 or early 2016 and did not return after taking annual leave in the Philippines.
On 8 February 2016 Mr Benting ended his employment with FTM. He left the Belconnen shop during a break and did not return. He feared for his safety after overhearing Mr Elvin yelling about him and the other therapists who had contacted Legal Aid ACT about their employment at FTM. He said Mr Elvin referred to the others as “traitors against the company for making back wage claims” and called him “crazy” and “an idiot” for complaining about his wages while he was still working for FTM. Mr Elvin did not challenge this evidence in cross-examination or adduce evidence to the contrary. Mr Benting gave the following evidence about his state of mind at the time:
I remember I was scared. I was sweating and shaking in fear. I felt that [Mr Elvin] was capable of anything when he was angry and I remembered the threats he made to us. I was in fear of my safety so I decided to leave and not return to the shop. That day I remember saying to the receptionist as I left the shop that I was just going to the mall. I left wearing my uniform and never went back. I did not tell anyone. I was panicking and I was shaking. I did not know what to do or where to go because I had no family in Australia.
The answer to this question is no.
The purpose of a deed of company arrangement is to maximise the chances of the company (or as much of its business as possible) continuing in existence or, if that is not possible, securing a better return for the company’s creditors and members than would result if the company were immediately wound up: see Corporations Act, s 435A.
As the plurality explained in Lehman Brothers at [52]–[53], s 444D(1) limits the extent to which a deed of company arrangement binds creditors and the Corporations Act does not bind creditors beyond that limit. More particularly, the Act does not bind creditors to give up a claim against a person other than the subject company. Their Honours went on to observe at [55]:
Effect must be given in the application of s 444D(1) to the words “so far as concerns claims arising on or before the day specified in the deed”. Effect must be given to those words, recognising that the claims to which they refer are claims against the subject company.
CONCLUSIONS
In summary, I have come to the following conclusions.
First, the Ombudsman should have leave to rely on her second further amended statement of claim.
Second, in relation to the questions concerning award coverage and classification, the Health Award applied to FTM and the Massage Therapists at all relevant times and the classification to which Massage Therapists belonged was HP Level 1.
Third, FTM contravened s 45 of the FW Act by failing to pay the Massage Therapists minimum hourly rates, public holiday penalty rates, Monday to Saturday overtime rates, and Sunday overtime rates in accordance with the Health Award.
Fourth, FTM contravened s 44 of the Act by:
·requiring the Massage Therapists to work unreasonable hours over and above 38 hours a week contrary to s 62(1);
·not paying each of the Massage Therapists the amount that would have been payable to them with respect to the period of untaken annual leave they had at the end of their employment, contrary to s 90(2); and
·failing to give each of the Massage Therapists the Fair Work Information Statement as required by s 125.
Fifth, FTM contravened s 325(1) in that it unreasonably required Ms Amacio, Ms Bantilan, Ms Isugan, Ms Castaneda, Ms Ortega and Ms Sarto to spend $800 per fortnight of their wages on its business by directing them to refund that amount during the so-called cashback periods, contrary to s 325(1).
Sixth, FTM contravened s 323(1) by deducting amounts from the wages of the Massage Therapists described in the records as “staff loans” when the deductions were not authorised by any of the exceptions in s 324(1).
Seventh, FTM contravened s 535(1) by failing to make and keep records of:
·the number of overtime hours worked by each of the Massage Therapists or their start and finish times of overtime hours worked as prescribed by reg 3.34 of the FW Regulations;
·the periods of annual leave they took and the balance of their entitlement to annual leave from time to time as prescribed by reg 3.36(1); and
·setting out the nature of the termination of their employment as prescribed by reg 3.40.
Eighth, FTM contravened reg 3.44(1) by making and keeping pay records that, to its knowledge, were false or misleading as to the net amounts paid to Ms Amacio, Ms Bantilan, Ms Isugan, Ms Castaneda, Ms Ortega and Ms Sarto because they did not record or reflect the amounts they were required to return in cash from their salaries during the so-called cashback periods.
Ninth, FTM contravened reg 3.44(6) of the FW Regulations by producing to FWI Hurrell on 16 June 2016, in response to a notice to produce issued by the Ombudsman, records which did not mention the cash refunds or point out the errors.
Tenth, FTM contravened s 536(1) of the FW Act by not giving the Massage Therapists pay slips after about 31 March 2014 in contravention of s 536(1).
Eleventh, FTM contravened s 536(2) by failing to record in the pay slips it did give the Massage Therapists the details prescribed by reg 3.46(2).
Twelfth, FTM took adverse action against the Massage Therapists in contravention of s 340(1) of the FW Act by threatening to send the Massage Therapists back to the Philippines if they broke any of the rules, discussed with, or complained to, about their working conditions or reported FTM to “immigration” and to have their families killed if they did. These threats amounted to adverse action because, in effect, they were threats made by FTM to dismiss them. The threats were made in order to prevent them from exercising their workplace right to make a complaint to the relevant authorities in relation to their employment.
Thirteenth, FTM took adverse action against the Massage Therapists in contravention of s 351(1) of the FW Act by injuring them in their employment in the respects alleged in para 133(a)–(i) of the Ombudsman’s pleadings for reasons which included their race and national extraction.
Fourteenth, FTM also contravened s 343(1) of the FW Act by threatening to send the Massage Therapists back to the Philippines and to have their families in the Philippines killed with intent to coerce them not to exercise their rights to complain about their working conditions.
Fifteenth, Mr Elvin was knowingly concerned in all of the contraventions by FTM, except the pay slip contraventions. He was therefore involved in those contraventions within the meaning of s 550(2) of the Act and is taken to have contravened those provisions.
Sixteenth, Mr Puerto was knowingly concerned in FTM’s contraventions of ss 62(1), 125, 323(1), and 325(1). Mr Puerto was also knowingly concerned in FTM’s contraventions of ss 340 and 343, 536(1) and, to a limited extent, s 351. He was therefore involved in those contraventions within the meaning of s 550(2) and is taken to have contravened those provisions. I am not satisfied, however, that he was knowingly concerned in the contraventions of ss 45, 535(1) or 536(2).
Seventeenth, the defence based on the DOCA fails since the Ombudsman was not a “creditor” of FTM within the meaning of the DOCA and the relevant provisions of the Corporations Act and the DOCA did not extinguish the claims against FTM, Mr Elvin or Mr Puerto. Even if the Ombudsman were a “creditor”, the DOCA did not affect the Ombudsman’s case against Mr Elvin or Mr Puerto. Nor would the DOCA have precluded the Ombudsman from obtaining declaratory relief or pecuniary penalties or, for that matter, seeking orders with respect to the record-keeping and pay slip contraventions, the failure to comply with s 125 of the FW Act, or the adverse action and coercion contraventions.
ORDERS
It remains for me to determine the relief that should be granted. That is not a simple matter, not least because of the Ombudsman’s late amendments. The process will need to take place in stages and I will make orders to facilitate this process.
First, the parties will be given the opportunity to agree on orders giving effect to my reasons, including the extent to which the Therapists have been underpaid for the purposes of the award contraventions. Since the respondents are unrepresented, I will arrange for a Registrar of the Court to assist in the process. As I foreshadowed during closing argument, in the event that agreement cannot be reached, I will appoint a referee to decide the amount of the underpayments, based on my findings. The matter will then need to return to court for a hearing on the penalties that should be awarded and the making of final orders.
I certify that the preceding nine hundred and seventy two (972) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. Associate:
Dated: 14 October 2021
ANNEXURE A
First cashback period (26 August 2012 – 2 June 2013)
Amacio Wages paid by FTM ATM withdrawals International transfers Date Amount Date Amount Date Amount 27 August 2012 $1,179.40 5 September 2012 $1,000.00 N/A N/A 10 September 2012 $1,879.10 17 September 2012 $500.00
$1,000.00
N/A N/A 24 September 2012 $1,691.95 28 September 2012 $1,000.00 N/A N/A 3 October 2012 $1,000.00 9 October 2012 $500.00 10 October 2012 $2,015.30 12 October 2012 $500.00 N/A N/A 22 October 2012 $1,000.00 23 October 2012 $1,000.00 23 October 2012 $1,960.30 24 October 2012 $1,000.00 N/A N/A 30 October 2012 $1,000.00 7 November 2012 $1,000.00 7 November 2012 $1,653.65 8 November 2012 $1,000.00 N/A N/A 13 November 2012 $650.00 20 November 2012 $1,607.80 21 November 2012 $1,000.00 29 November 2012 $158.00
$312.00
22 November 2012 $600.00 5 December 2012 $1,620.35 6 December 2012 $1,000.00 N/A N/A 7 December 2012 $650.00 17 December 2012 $1,583.60 19 December 2012 $1,000.00 20 December 2012 $3,012.00 20 December 2012 $350.00 31 December 2012 $782.42 3 January 2013 $200.00 N/A N/A 8 January 2013 $300.00 14 January 2013 $40.00 15 January 2013 $1,329.05 16 January 2013 $1,000.00 N/A N/A 17 January 2013 $300.00 30 January 2013 $1,888.06 31 January 2013 $1,000.00 31 January 2013 $512.00 1 February 2013 $900.00 13 February 2013 $123.95
$1,701.80
14 February 2013 $1,000.00 14 February 2013 $178.00 15 February 2013 $300.00 26 February 2013 $1,768.18 27 February 2013 $1,000.00 28 February 2013 $612.00 28 February 2013 $600.00 5 March 2013 $690.00 11 March 2013 $1,768.16 13 March 2013 $1,000.00 20 March 2013 $412.00 14 March 2013 $720.00 25 March 2013 $1,830.25 26 March 2013 $1,000.00 28 March 2013 $182.00 27 March 2013 $800.00 9 April 2013 $1,922.40 10 April 2013 $1,000.00 10 April 2013 $612.00
$612.00
$58.00
15 April 2013 $920.00 23 April 2013 $1,851.15 24 April 2013 $1,000.00 N/A N/A 26 April 2013 $850.00 7 May 2013 $1,839.40 8 May 2013 $1,000.00 8 May 2013 $312.00 9 May 2013 $800.00 21 May 2013 $1,815.85 22 May 2013 $1,000.00 22 May 2013 $158.00 24 May 2013 $800.00 TOTAL $33,812.12 $34,870.00 $7,130
Bantilan Wages paid by FTM ATM withdrawals International transfers Date Amount Date Amount Date Amount 27 August 2012 $1,182.55 30 August 2012 $800.00 N/A N/A 5 September 2012 $1,000.00 10 September 2012 $1,787.40 17 September 2012 $1,000.00 N/A N/A 18 September 2012 $300.00 21 September 2012 $100.00 24 September 2012 $1,602.00 27 September 2012 $500.00 N/A N/A 28 September 2012 $200.00 3 October 2012 $600.00 8 October 2012 $1,000.00 8 October 2012 $1,949.20 12 October 2012 $1,000.00 N/A N/A 22 October 2012 $500.00 23 October 2012 $500.00 23 October 2012 $1,954.00 26 October 2012 $1,000.00 28 October 2012 $662.00
$212.00
$258.00
30 October 2012 $200.00 5 November 2012 $500.00 6 November 2012 $1,647.40 8 November 2012 $1,000.00 9 November 2012 $112.00
$112.00
20 November 2012 $900.00 15 November 2012 $312.00 20 November 2012 $1,610.65 22 November 2012 $1,000.00 N/A N/A 28 November 2012 $600.00 4December 2012 $1,578.75 5 December 2012 $1,000.00 6 December 2012 $112.00 6 December 2012 $600.00 8 December 2012 $112.00 17 December 2012 $1,582.15 20 December 2012 $1,000.00 N/A N/A 21 December 2012 $500.00 31 December 2012 $787.61 3 January 2013 $200.00 N/A N/A 8 January 2013 $400.00 14 January 2013 $20.00 15 January 2013 $1,259.00 16 January 2013 $1,000.00 18 January 2013 $912.00 17 January 2013 $200.00 21 January 2013 $60.00 29 January 2013 $1,876.96 31 January 2013 $1,000.00 6 February 2013 $112.00
$162.00
1 February 2013 $500.00 6 February 2013 $300.00 13 February 2013 $354.08
$1,350.69
14 February 2013 $1,000.00 15 February 2013 $1,112.00 15 February 2013 $700.00 26 February 2013 $1,769.47 27 February 2013 $1,000.00 28 February 2013 $212.00
$212.00
$162.00
28 February 2013 $700.00 4 March 2013 $70.00 11 March 2013 $1,769.45 13 March 2013 $1,000.00 14 March 2013 $362.00
$112.00
14 March 2013 $700.00 25 March 2013 $1,768.15 26 March 2013 $1,000.00 3 April 2013 $100.00
$100.00
27 March 2013 $700.00 30 March 2013 $20.00 8 April 2013 $66.68
$1883.20
10 April 2013 $1,000.00 10 April 2013 $1,212.00 11 April 2013 $900.00 11 April 2013 $132.00 23 April 2013 $1,836.15 24 April 2013 $1,000.00 24 April 2013 $162.00 26 April 2013 $800.00 28 April 2013 $382.00 4 May 2013 $182.00 9 May 2013 $92.00 10 May 2013 $1,846.60 11 May 2013 $1,000.00 15 May 2013 $112.00 13 May 2013 $800.00 19 May 2013 $112.00 20 May 2013 $1,840.70 22 May 2013 $1,000.00 24 May 2013 $112.00
$142.00
24 May 2013 $800.00 29 May 2013 $1,112.00 TOTAL $33,302.84 $33,650.00 $9,202.00
Isugan Wages paid by FTM ATM withdrawals International transfers Date Amount Date Amount Date Amount 27 August 2012 $1,182.55 5 September 2012 $1,000.00 N/A N/A 10 September 2012 $1,782.55 17 September 2012 $1,000.00
$1,000.00
N/A N/A 19 September 2012 $1,000.00 24 September 2012 $1,602.45 29 September 2012 $1,000.00 N/A N/A 1 October 2012 $500.00 3 October 2012 $700.00 8 October 2012 $1,852.05 13 October 2012 $1,000.00 N/A N/A 17 October 2012 $500.00 23 October 2012 $1,952.60 24 October 2012 $1,000.00 N/A N/A 31 October 2012 $1,000.00 6 November 2012 $1,642.55 7 November 2012 $1,000.00 9 November 2012 $2,312.00 8 November 2012 $1,000.00 10 November 2012 $40.00 20 November 2012 $1,580.45 22 November 2012 $1,000.00 N/A N/A 23 November 2012 $550.00 28 November 2012 $20.00 4 December 2012 $1,594.70 5 December 2012 $1,000.00 8 December 2012 $262.00 7 December 2012 $600.00 17 December 2012 $1,598.10 18 December 2012 $1,000.00 N/A N/A 21 December 2012 $200.00 31 December 2012 $784.82 7 January 2013 $700.00 N/A N/A 15 January 2013 $1,295.75 17 January 2013 $1,000.00 18 January 2013 $512.00 18 January 2013 $200.00 23 January 2013 $160.00 26 January 2013 $1,852.75 31 January 2013 $1,000.00 31 January 2013 $302.00
$252.00
1 February 2013 $500.00 4 February 2013 $340.00 13 February 2013 $114.50
$1,715.54
14 February 2013 $1,000 14 February 2013 $612.00 18 February 2013 $830.00 26 February 2013 $1,795.66 27 February 2013 $1,000.00 28 Feb 2013 $512.00
$262.00
28 February 2013 $780.00 11 March 2013 $1,772.74 13 March 2013 $1,000.00 13 March 2013 $512.00 14 March 2013 $700.00 25 March 2013 $1,830.25 27 March 2013 $1,000.00 28 March 2013 $222.00
$562.00
28 March 2013 $700.00 3 April 2013 $150.00 9 April 2013 $1,884.50 10 April 2013 $1,000.00 11 April 2013 $612.00 15 April 2013 $920.00 23 April 2013 $1,860.30 24 April 2013 $1,000.00 24 April 2013 $212.00
$562.00
26 April 2013 $800.00 28 April 2013 $112.00 7 May 2013 $1,840.70 8 May 2013 $1,000.00 8 May 2013 $212.00
$112.00
$132.00
9 May 2013 $840.00 21 May 2013 $1,799.55 22 May 2013 $1,000.00 22 May 2013 $212.00 23 May 2013 $790.00 29 May 2013 $192.00 TOTAL $33,335.06 $34,520.00 $8,680.00
Second cashback period (21 April 2013 – 5 January 2014)
Castaneda Wages paid by FTM ATM withdrawals International transfers Date Amount Date Amount Date Amount 1 May 2013 $390.95 N/A N/A N/A 9 May 2013 $1,626.45 15 May 2013 $2,017.00 11 May 2013 $1,000.00 22 May 2013 $1,796.25 23 May 2013 $1,000.00 26 May 2013 $558.00 27 May 2013 $780.00 4 June 2013 $1,791.05 6 June 2013 $1,000.00 N/A N/A 8 June 2013 $90.00
$50.00
18 June 2013 $1,791.05 19 June 2013 $1,000.00 19 June 2013 $550.00 20 June 2013 $900.00 21 June 2013 $108.00
$465.00
2 July 2013 $1,786.45 5 July 2013 $200.00
$50.00
N/A N/A 8 July 2013 $840.00 17 July 2013 $1,786.45 18 July 2013 $1,780.00 18 July 2013 $1,100.00 30 July 2013 $1,807.35 31 July 2013 $1,000.00 1 August 2013 $765.00
$200.00
1 August 2013 $800.00 12 August 2013 $1,733.55 14 August 2013 $1,000.00 14 August 2013 $750.00 15 August 2013 $740.00 22 August 2013 $1,791.05 28 August 2013 $1,000.00 28 August 2013 $1,020.00 29 August 2013 $790.00 10 September 2013 $1,795.65 16 September 2013 $200.00 21 September 2013 $450.00 21 September 2013 $100.00 24 September 2013 $1,798.20 26 September 2013 $1,000.00 26 September 2013 $500.00 30 September 2013 $150.00 10 October 2013 $1,851.15 10 October 2013 $800.00 N/A N/A 23 October 2013 $1,874.05 25 October 2013 $3,000.00 25 October 2013 $1,950.00
$155.00
5 November 2013 $1,825.70 7 November 2013 $450.00 17 November 2013 $108.00 11 November 2013 $100.00 18 November 2013 $5000.00 19 November 2013 $1,825.70 25 November 2013 $550.00 21 November 2013 $2,012.00
$165.00
3 December 2013 $1,815.25 5 December 2013 $150.00 4 December 2013 $2,995.00 7 December 2013 $100.00 14 December 2013 $20.00 17 December 2013 $1,802.80 18 December 2013 $3,900.00 20 December 2013 $2,510.00 TOTAL $30,889.10 $30,557.00 $17,361.00
Ortega Wages paid by FTM ATM withdrawals International transfers Date Amount Date Amount Date Amount 1 May 2013 $412.85 N/A N/A N/A N/A 9 May 2013 $1,657.35 13 May 2013 $2,070.00 16 May 2013 $1,108.00 22 May 2013 $1,802.15 23 May 2013 $500.00
$500.00
$500.00
$300.00
24 May 2013 $1,008.00 3 June 2013 $1,839.40 5 June 2013 $1,000.00
$800.00
N/A N/A 17 June 2013 $1,846.60 19 June 2013 $1,000.00
$800.00
19 June 2013 $1,508.00 1 July 2013 $1,836.15 3 July 2013 $100.00 N/A N/A 4 July 2013 $100.00 5 July 2013 $100.00 8 July 2013 $1,000.00 10 July 2013 $100.00 11 July 2013 $300.00 17 July 2013 $1,845.30 18 July 2013 $500.00 20 July 2013 $518.00 23 July 2013 $700.00 24 July 2013 $100.00 30 July 2013 $1,846.60 31 July 2013 $800.00 N/A N/A 1 August 2013 $1,000.00 13 August 2013 $1,851.15 14 August 2013 $1,000.00
$100.00
15 August 2013 $1,008.00 16 August 2013 $800.00 27 August 2013 $1,843.85 28 August 2013 $1,000.00
$1,000.00
28 August 2013 $1,008.00 29 August 2013 $100.00 10 September 2013 $1,830.25 11 September 2013 $1,000.00
$830.00
12 September 2013 $1,008.00 21 September 2013 $500.00 25 September 2013 $1,000.00 25 September 2013 $1,859.00 26 September 2013 $1,000.00 N/A N/A 10 October 2013 $1,917.85 11 October 2013 $1,000.00 23 October 2013 $1,000.00 23 October 2013 $1,952.80 29 October 2013 $1,000.00
$1,000.00
23 October 2013 $2,008.00 5 November 2013 $1,000.00 5 November 2013 $1,884.50 7 November 2013 $1,000.00 10 November 2013 $2,008.00 19 November 2013 $1,901.15 20 November 2013 $300.00 N/A N/A 22 November 2013 $1,000.00 2 December 2013 $1,893.65 12 December 2013 $1,000.00
$1,000.00
5 December 2013 $2,008.00 12 December 2013 $2,008.00 16 December 2013 $1,878.65 18 December 2013 $1,000.00
$800.00
N/A N/A TOTAL 1003 $31,899.25 $31,700.00 $15,198.00
Sarto Wages paid by FTM ATM withdrawals International transfers Date Amount Date Amount Date Amount 1 May 2013 $415.15 N/A N/A N/A N/A 9 May 2013 $1,701.00 10 May 2013 $2,000.00 N/A N/A 22 May 2013 $1,802.15 25 May 2013 $1,000.00 N/A N/A 27 May 2013 $700.00 4 June 2013 $1,834.85 6 June 2013 $100.00
$900.00
12 June 2013 $131.46 7 June 2013 $1,000.00 17 June 2013 $1,854.45 20 June 2013 $800.00 N/A N/A 28 June 2013 $300.00 1 July 2013 $1,834.85 5 July 2013 $100.00 N/A N/A 10 July 2013 $200.00 11 July 2013 $20.00 17 July 2013 $1,842.00 18 July 2013 $1,000.00 20 July 2013 $1,022.10 19 July 2013 $100.00
$900.00
30 July 2013 $1,845.30 2 August 2013 $100.00
$100.00
$100.00
N/A N/A 13 August 2013 $1,854.45 14 August 2013 $1,000.00 17 August 2013 $2,022.05 15 August 2013 $1,000.00 16 August 2013 $100.00
$500.00
23 August 2013 $50.00 26 August 2013 $1,846.60 28 August 2013 $1,000.00 N/A N/A 29 August 2013 $790.00 10 September 2013 $1,840.70 11 September 2013 $1,000.00 14 September 2013 $754.57 18 September 2013 $500.00 20 September 2013 $950.00 24 September 2013 $950.00 20 September 2013 $50.00 24 September 2013 $50.00 24 September 2013 $1,859.00 26 September 2013 $1,000.00 2 October 2013 $2,999.00 28 September 2013 $1,000.00 9 October 2013 $1,907.40 10 October 2013 $1,000.00 11 October 2013 $108.00 16 October 2013 $1,000.00 16 October 2013 $1,512.00 23 October 2013 $1,936.15 25 October 2013 $1,000.00 N/A N/A 4 November 2013 $1,887.80 5 November 2013 $1,000.00 6 November 2013 $502.00 18 November 2013 $200.00 18 November 2013 $1,892.35 27 November 2013 $500.00 N/A N/A 2 December 2013 $1,864.90 4 December 2013 $400.00 4 December 2013 $272.00 16 December 2013 $1,883.20 18 December 2013 $1,000.00 N/A N/A 19 December 2013 $1,000.00 TOTAL $31,902.30 $26,460.00 $9,323.18
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