Fair Work Ombudsman v Grouped Property Services Pty Ltd - [2016] FCA 1034

Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
KATZMANN J
summary
In accordance with the practice of the Federal Court in some cases of public interest, the following Summary has been prepared to accompany the reasons for judgment delivered today. The Summary is intended to assist understanding of the decision of the Court. It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment. The published reasons for judgment and this Summary will be available on the Internet at align="center">Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
KATZMANN J
SUMMARY
This is a case about the calculated exploitation of a vulnerable workforce.
The Fair Work Ombudsman sued a contract cleaning business known as Grouped Property Services Pty Ltd (GPS) for multiple breaches of the Fair Work Act 2009 (Cth). She also sued two people who were involved in the management of GPS: Enrico Pucci and Enrico’s brother, Rosario (also known as “Ross”). Enrico was the sole director of GPS. Rosario was its Chief Operating Officer and, from mid-April 2012 to at least December 2015, an undischarged bankrupt.
Sone 36 contraventions of the Act were pleaded. Yet many of the contraventions involved more than one employee. Consequently, the substance of the Ombudsman’s case was that GPS (or alternatively National Contractors) breached the Fair Work Act more than 580 times. The breaches were said to have taken place over a period between 2011 and 2013 and to have affected a total of 51 employees.
Some of the breaches related to a failure to pay basic employee entitlements, including penalty rates, annual and personal leave, payment in lieu of notice on termination, superannuation, minimum wages and, in some cases, any wages at all. Others related to a failure to keep proper records and provide pay slips. One involved an employee, Moona Hasan, who was fired merely because she made repeated inquiries about why she had not been paid and when she would be paid. Another concerned representations made to a number of individuals that they were contractors rather than employees.
The Ombudsman said that Enrico was involved in the unlawful dismissal of Ms Hasan, and that Rosario was involved in each of the other breaches.
In its defence, GPS and Enrico claimed that GPS had not employed any of the 51 individuals. Rather, they said that it hired their labour from National Contractors and certain other companies. National Contractors admitted that some of the 51 were employees, but said that others were independent contractors. Rosario did not file a defence at all.
The evidence supported most, but not all, of the Ombudsman’s allegations. The evidence also disclosed that, more often than not, when employees asked why they had not been paid, their inquiries were repeatedly ignored and/or rebuffed. Sometimes the employees were abused — merely for pursuing their legal entitlements. Sometimes they were threatened. Sometimes they were sacked without notice. On one such occasion an employee was physically removed from the office.
I have found that most, but not all, of the alleged contraventions took place. I have also found that, despite attempts to disguise the true state of affairs, all 51 individuals were in fact employees rather than contractors, and that GPS was their true employer. In addition, I have found that Enrico was involved in the dismissal of Ms Hasan (indeed, it was he who fired her) and that Rosario was involved in most of GPS’s other contraventions.
At this stage, I have made declarations concerning these matters and orders:
·requiring GPS to undertake an audit of its compliance with the Fair Work Act and the applicable modern awards;
·requiring GPS to undertake training in relation to its obligations under the Act and awards;
·restraining GPS from further conduct that contravenes the relevant parts of the Act and awards; and
·restraining Rosario and Enrico from being involved in such conduct.

I have also directed the District Registrar of the Court to forward a copy of the judgment to ASIC and the ATO.
The Ombudsman has asked the Court to impose penalties for the contravening conduct and seeks compensation for the affected employees. I will deal with these questions after the parties have had the opportunity to review the findings and make further submissions.

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034

File number: NSD 659 of 2014

Judge: KATZMANN J

Date of judgment: 26 August 2016

Catchwords: INDUSTRIAL LAW — alleged contraventions of Fair Work Act 2009 (Cth) — whether individuals in question employees or subcontractors — whether first respondent true employer of employees — underpayment of statutory and award entitlements — adverse action — false representations — failure to keep proper records — failure to provide pay slips — accessorial liability

Legislation:
A New Tax System (Australian Business Number) Act 1999 (Cth) s 8

A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 9‑20

Corporations Act 2001 (Cth), ss 205B, 206A, 206B

Evidence Act 1995 (Cth), ss 160, 161, 163

Fair Work Act 2009 (Cth), ss 12, 14, 27, 28, 45, 61, 86, 87, 90, 95, 96, 97, 99, 107, 115, 116, 117, 123, 125, 293, 323, 324, 325, 340, 341, 342, 357, 360, 361, 535, 536, 539, 546, 550, 564, 570, 681, 687, 701, 793

Federal Court of Australia Act 1976 (Cth), ss 21, 22, 23, 37M, 37N

Superannuation Guarantee (Administration) Act 1992 (Cth), ss 3, 16, 17, 19, 23, 32C, 32F

Superannuation Guarantee (Administration) Amendment Act 2012 (Cth)

Superannuation Guarantee Charge Act 1992 (Cth), ss 5, 6

Fair Work Regulations 2009 (Cth), regs 3.33, 3.34, 3.36, 3.37, 3.46

Federal Court Rules 2011 (Cth), rr 1.32, 1.41, 30.21

Holidays Act 1910 (SA), s 3, Sch 2

Holidays Act 1958 (ACT), s 3

Holidays Act 1983 (Qld), s 2, Sch

Public and Bank Holidays Act 1972 (WA), s 5, Sch 2

Public Holidays Act 1993 (Vic), s 6

Public Holidays Act 2010 (NSW), s 4

Cases cited:
ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532

Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 178 FLR 1

AHB v NSW Trustee and Guardian [2014] NSWCA 40

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 Commissioner v Giraffe World Australia Pty Ltd (No 2) (1999) 95 FCR 302

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149

Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 164 IR 299

Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17

Damevski v Giudice (2003) 133 FCR 438

Fair Work Ombudsman v Al Hilfi [2012] FCA 1166

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 256 CLR 137

Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174

Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456

Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

Giorgianni v The Queen (1985) 156 CLR 473

Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939

Hamilton v Whitehead (1988) 166 CLR 121

Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210

On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 214 FCR 82

Potter v Fair Work Ombudsman [2014] FCA 187

Qantas Airways Ltd v Transports Workers’ Union of Australia [2011] FCA 470; 280 ALR 503

Reid v Camphill Engravers [1990] ICR 435

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Tesco Supermarkets Ltd v Nattrass [1972] AC 153

Vines v Djordjevitch (1955) 91 CLR 512

Yorke v Lucas (1985) 158 CLR 661

Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; 293 ALR 537)

Date of hearing: 8, 9 and 10 December 2015

Date of last submissions: 31 May 2016

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment and Industrial Relations

Category: Catchwords

Number of paragraphs: 1143

Counsel for the Applicant: Mr Y Shariff

Solicitor for the Applicant: Fair Work Ombudsman

Counsel for the First Respondent: The First Respondent did not appear

Counsel for the Second Respondent: The Second Respondent did not appear

Counsel for the Third Respondent: The Third Respondent did not appear

Counsel for the Fourth Respondent: The Fourth Respondent did not appear

Table of Corrections

1 June 2017 In declaration 1.2, the number “31” has been substituted for the number “32”.

1 June 2017 In declaration 1.3, “s 99” has been substituted for “s 97”.

1 June 2017 In declaration 2.15, the number “21” has been substituted for the number “23”.

1 June 2017 In declaration 2.16, the number “17” has been substituted for the number “19”.

1 June 2017 In declaration 2.19, “six” has been substituted for “seven”.

1 June 2017 In declaration 3, the word “free” has been inserted after the words “award/agreement”.

1 June 2017 In declaration 4, the number “49” has been substituted for the number “50”.

1 June 2017 In declaration 10.4, “one” has been substituted for “two”.

1 June 2017 In declaration 10.12, “eight” has been substituted for the number “11”.

1 June 2017 In declaration 10.16, the number “21” has been substituted for the number “23”.

1 June 2017 In declaration 10.23, “51 employees” has been substituted for “one employee”.

1 June 2017 In paragraph 32, “31–36” has been substituted for “31–35”.

1 June 2017
In paragraph 33, the following subparagraph, which was inadvertently removed, has be re-inserted:

“False representations

(34) in contravention of s 357(1) of the FW Act, representations were made to certain employees that they were engaged, or would be engaged, under a contract for services under which they were performing, or would perform, work as an independent contractor, when they were in fact and in law engaged and worked as employees under contracts of employment”.

1 June 2017 In paragraph 33, subparagraph (3), paragraph 995, and the third row of each of the two tables in Annexure B, “s 99” has been substituted for “s 97”.

1 June 2017 In paragraph 268, “Juliana Botero Hernandez” has been substituted for “Jessica Alvarado Palma”.

1 June 2017 In paragraph 269, “Jessica Alvarado Palma” has been substituted for “Juliana Botero Hernandez”.

1 June 2017 In paragraph 339, first sentence, “2012” has been substituted for “2013”

1 June 2017 In paragraph 394, first sentence, the words “dated 12 January 2013” have been replaced with the phrase “received by the Ombudsman on 14 February 2013”.

1 June 2017 In paragraphs 399 and 405, “s 117(2)” has been substituted for “s 90(2)”.

1 June 2017 In paragraph 706, “cl 27.1(b)” has been substituted for “cl 27.2(b)”.

1 June 2017 In paragraph 762, the words “save for one payment of $500” have been inserted after “18 January 2013”.

1 June 2017 In paragraph 767, the third sentence has been deleted.

1 June 2017 In paragraph 775, second sentence, “Boxing Day 2011” has been substituted for “Boxing Day 2012”.

1 June 2017 In paragraph 812, first sentence, “5 April 2012” has been substituted for “15 April 2012”.

1 June 2017 In paragraph 879, penultimate sentence, “2012” has been substituted for “2013”, and “$15.96” for “16.37”.

1 June 2017 In paragraph 986, “s 90(2)” has been substituted for “s 87(1)”.

1 June 2017 Throughout the judgment, in all references to Wendy Bong the male pronoun has been substituted for the female pronoun.

NSD 659 of 2014

BETWEEN:
FAIR WORK OMBUDSMAN
Applicant

AND:
GROUPED PROPERTY SERVICES PTY LTD (ACN 121 762 534)
First Respondent

NATIONAL CONTRACTORS PTY LTD (ACN 159 741 518)
Second Respondent

ROSARIO PUCCI
Third Respondent

ENRICO PUCCI
Fourth Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

26 AUGUST 2016

THE COURT DECLARES THAT:
1. Grouped Property Services Pty Ltd (ACN 121 762 534) (GPS) contravened s 44 of the Fair Work Act 2009 (Cth) in the following respects:
1.1.by failing to pay two employees for a period of annual leave as prescribed by subs 90(1) of the Fair Work Act;
1.2.by failing to pay 31 employees on termination, as required by subs 90(2) of the Fair Work Act, the amounts that would have been payable in respect of their accrued but untaken annual leave, had they taken the annual leave;
1.3.by failing to pay one employee the basic periodic rate of pay for a period of personal leave, as prescribed by s 99 of the Fair Work Act;
1.4.by failing to pay six employees in respect of public holidays or part public holidays on which those employees were absent from work but would ordinarily have worked, as prescribed by s 116 of the Fair Work Act;
1.5.by failing to give four employees written notice of termination, as prescribed by subs 117(1) of the Fair Work Act;
1.6.by failing to pay, as prescribed by subs 117(2) of the Fair Work Act, 10 employees whose employment was terminated without sufficient notice;

2. GPS contravened s 45 of the Fair Work Act in the following respects:
2.1.by failing to pay one employee a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 of the Cleaning Services Award 2010;
2.2.by failing to pay four administrative employees a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of Schedule A of the Clerks — Private Sector Award 2010 (Clerks Modern Award);
2.3.by failing to make superannuation contributions of any kind in respect of five employees in accordance with cl 24.2 of the Clerks Modern Award;
2.4.by failing to pay overtime to two employees, as required by cl 27.1 of the Clerks Modern Award;
2.5.by failing to provide 21 part-time cleaners with a written agreement specifying their pattern of work, the hours worked each day, the days of the week those cleaners would work and the actual starting and finishing times each day as prescribed by cl 12.4(a) of the Cleaning Services Award;
2.6.by failing to pay 15 part-time cleaners a 15 per cent allowance in addition to the full time rate of pay in accordance with cl 12.4(b) of the Cleaning Services Award;
2.7.by failing to provide six cleaners who were required to work two shifts in one day or period of duty the applicable allowance as prescribed by cl 17.1 of the Cleaning Services Award;
2.8.by failing to pay one employee, who was required to travel from one place of work to another, the basic periodic rate of pay for all time so occupied by her as prescribed by cl 17.10 of the Cleaning Services Award;
2.9.by failing to pay 29 cleaners on a weekly or fortnightly basis and no later than Thursday in each pay week as prescribed by cl 20.1 of the Cleaning Services Award;
2.10.by failing to pay (as prescribed by cl 20.3 of the Cleaning Services Award) 29 cleaners, who were left waiting for the transfer of their wages by electronic funds transfer, their ordinary rates of pay until such time as their wages were paid;
2.11.by failing to make superannuation contributions in respect of 22 cleaners, contrary to cl 23.2 of the Cleaning Services Award;
2.12.by failing to pay penalty rates prescribed by cl 27.1(a) of the Cleaning Services Award to 22 cleaners engaged to work early morning, afternoon or non-permanent night shift;
2.13.by failing to pay penalty rates prescribed by cl 27.1(b) of the Cleaning Services Award to six cleaners engaged to work permanent night shift;
2.14.by failing to pay penalty rates prescribed by cl 27.2(a) of the Cleaning Services Award to 22 cleaners engaged to work between midnight Friday and midnight Saturday;
2.15.by failing to pay penalty rates prescribed by cl 27.2(b) of the Cleaning Services Award to 21 cleaners engaged to work between midnight Saturday and midnight Sunday;
2.16.by failing to pay penalty rates prescribed by clause 27.3 of the Cleaning Services Award to 17 cleaners engaged to work on a public holiday;
2.17.by failing to pay penalty rates as prescribed by cl 28.2 of the Cleaning Services Award to 25 cleaners who worked overtime between midnight Sunday and midnight Saturday;
2.18.by failing to pay penalty rates as prescribed by cl 28.3 of the Cleaning Services Award to 25 cleaners who worked overtime on Sunday;
2.19.by failing to pay penalty rates as prescribed by cl 28.4 of the Cleaning Services Award for overtime worked on a public holiday to six cleaners; and
2.20.by failing to pay six cleaners an additional annual leave loading pursuant to cl 29.4 of the Cleaning Services Award.

3. GPS contravened s 293 of the Fair Work Act by failing to pay two award/agreement free employees the national minimum wage.
4. GPS contravened s 323 of the Fair Work Act by failing to pay 49 employees in relation to the performance of work in full and in money.
5. GPS contravened s 340 of the Fair Work Act by dismissing Moona Hasan because she exercised a workplace right.
6. GPS contravened s 357 of the Fair Work Act by employing or proposing to employ nine individuals and representing to them that the contract under which they were, or were to be, employed was, or is, a contract for services under which those persons were, or were to be, engaged as independent contractors.
7. GPS contravened subs 535(2) of the Fair Work Act by failing to keep records in the form prescribed by the Fair Work Regulations 2009 (Cth) in relation to 51 employees.
8. GPS contravened subs 536(1) of the Fair Work Act by failing to give a pay slip to 11 employees within one working day of paying an amount to the employees in relation to the performance of work.
9. Enrico Pucci was involved (within the meaning of subs 550(2) of the Fair Work Act) in the contravention by GPS of the provision of the Fair Work Act identified in para 5 above.
10. Rosario (also known as Ross) Pucci was involved (within the meaning of subs 550(2) of the Fair Work Act) in the contraventions by GPS of the provisions of the Fair Work Act identified in the following paragraphs above:
10.1.paragraph 1.1, in relation to one employee;
10.2.paragraph 1.2, in relation to one employee;
10.3.paragraph 1.5, in relation to one employee;
10.4.paragraph 1.6, in relation to one employee;
10.5.paragraph 2.1, in relation to one employee;
10.6.paragraph 2.2, in relation to two employees;
10.7.paragraph 2.3, in relation to one employee;
10.8.paragraph 2.4, in relation to one employee;
10.9.paragraph 2.5, in relation to one employee;
10.10.paragraph 2.6, in to one employee;

10.11.paragraphs 2.9 and 2.10, in relation to 13 employees;
10.12.paragraph 2.11, in relation to eight employees;
10.13.paragraph 2.12, in relation to 22 employees;
10.14.paragraph 2.13, in relation to one employee;
10.15.paragraph 2.14, in relation to 22 employees;
10.16.paragraph 2.15, in relation to 21 employees;
10.17.paragraph 2.17, in relation to two employees;
10.18.paragraph 2.18, in relation to two employees;
10.19.paragraph 2.20, in relation to one employee;
10.20.paragraph 3, in relation to one employee;
10.21.paragraph 4, in relation to 46 employees;
10.22.paragraph 6, in relation to nine employees;
10.23.paragraph 7, in relation to 51 employees; and
10.24.paragraph 8, in relation to 11 employees.

THE COURT ORDERS THAT:
1.Pursuant to subs 545(1) of the Fair Work Act, GPS undertake, or at its expense engage a third party with qualifications in accounting or workplace relations to undertake, an audit of GPS’s compliance with the Fair Work Act and the Cleaning Services Award and Clerks Modern Award on the following terms:
(a)the audit period will be the period commencing on 15 September 2013 and ending six months after the date of this order;
(b)the audit is to be completed within 30 days of the end of the audit period;
(c)the audit will apply to all employees and persons otherwise engaged to perform work for GPS (including persons purportedly employed or engaged by National Contractors Pty Ltd) at any time during the audit period;
(d)according to each employee’s classification of work, category of employment, and hours worked during the audit period, the audit will assess GPS’s compliance with the following obligations:
(i)wages and work related entitlements under the Cleaning Services Award, the Clerks Modern Award, other industrial instruments or national minimum wage orders;
(ii)accrual and payment of entitlements under the National Employment Standards in Part 2–2 of the Fair Work Act;
(iii)method and frequency of payment in accordance with s 323 of Fair Work Act;
(iv)permitted deductions in accordance with s 325 of the Fair Work Act;
(v)contracting arrangements in accordance with s 357 of the Fair Work Act; and
(vi)record keeping and pay slip obligations in Division 3 of Part 3-6 of the Fair Work Act.

2.Within 30 days of the audit in order 1 above being completed, GPS provide the applicant with:
(a)a copy of the audit report which will include a statement of the methodology used in the audit; and
(b)written details of any contraventions identified in the audit, the steps GPS will take to rectify any identified contravention(s) and by when the rectification will occur.

3.Within six months of the date of this order, GPS engage, at its own expense, a person or organisation with professional qualifications in workplace relations to provide training to GPS that covers the following:
(a)obligations on employers under the Cleaning Services Award, Clerks Modern Award and the National Employment Standards in the Fair Work Act; and
(b)payment of wages in accordance with Division 2 of Part 2-9 of the Fair Work Act.

4.Within 30 days of completing the training in order 3 above, GPS notify the applicant, in writing of:
(a)the date on which the training was completed;
(b)the name of the person or organisation that conducted the training; and
(c)the details of the methods of delivery of the training and the content of the training.

5.Pursuant to subs 545(1) and/or subs 545(2)(a) of the Fair Work Act, GPS be restrained, whether by its officers, agents or otherwise, from engaging in conduct that contravenes the Cleaning Services Award, the Clerks Modern Award, National Employment Standards, national minimum wage order or other industrial instrument.
6.Pursuant to subs 545(1) and/or subs 545(2)(a) of the Fair Work Act, Enrico Pucci and Rosario (also known as Ross) Pucci be restrained from:
(a)aiding, abetting, counselling, procuring; or
(b)being in any way knowingly concerned, whether directly or indirectly, in conduct that contravenes the Cleaning Services Award, the Clerks Modern Award, National Employment Standards, national minimum wage orders or other industrial instruments.

7.Judgment be entered in favour of National Contractors Pty Ltd.
8.The District Registrar forward a copy of these reasons to the Australian Securities and Investments Commission and the Australian Taxation Office.
9.The matter be stood over to a date to be fixed for the hearing of the application for compensation and penalties.
10.The question of costs be reserved.

The Sunday Telegraph
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Table of Contents
Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 5
The parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 6
The Fair Work Ombudsman........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 6
Grouped Property Services, Rosario and Enrico Pucci........ ........ ........ ........ ........ ........ ........ ........ ... 6
National Contractors........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 7
The hearing........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 8
The allegations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 10
Underpayment of statutory and award entitlements........ ........ ........ ........ ........ ........ ........ ........ ...... 11
Adverse action........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 13
False representations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 14
Record-keeping contraventions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 14
Failing to provide pay slips........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 14
The issues........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 14
Were all 51 employees rather than independent contractors?........ ........ ........ ........ ........ ........ ........ ... 15
Who was the true employer: GPS or National Contractors?........ ........ ........ ........ ........ ........ ........ .... 36
Were the employees covered by the relevant awards?........ ........ ........ ........ ........ ........ ........ ........ ...... 46
The “agreed” facts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 46
Were all 42 Cleaning Employees covered by the Cleaning Services Award?........ ........ ........ ...... 48
Were all six Administrative Employees covered by the Clerks Modern Award?........ ........ ........ . 51
The alleged contraventions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 53
The evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 53
Contraventions 1–32: The underpayment of wages and other entitlements........ ........ ........ ........ . 59
1Non-payment of annual leave........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 60
2Failing to pay annual leave on termination........ ........ ........ ........ ........ ........ ........ ........ ........ .. 62
3Failure to pay basic periodic rates of pay for personal leave........ ........ ........ ........ ........ ....... 78
4Failing to pay public holidays........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 81
5Failing to give written notice of termination........ ........ ........ ........ ........ ........ ........ ........ ....... 88
6Failure to make payments in lieu of notice........ ........ ........ ........ ........ ........ ........ ........ ........ .. 89
7Failure to pay minimum rates of pay to Abraham Arguello........ ........ ........ ........ ........ ........ 92
8Failure to pay minimum rates of pay to the administrative employees........ ........ ........ ....... 93
9Failure to pay superannuation in accordance with the Clerks Modern Award........ ........ .... 98
10Failure to pay overtime to administrative employees........ ........ ........ ........ ........ ........ ........ 100
11Failure to pay annual leave loading to administrative employees........ ........ ........ ........ ..... 103
12Failure to give written agreements on patterns of work to part-time cleaners........ ........ .. 105
13Failure to pay a 15% allowance for part-time cleaners........ ........ ........ ........ ........ ........ ..... 110
14Failure to pay broken shift allowance........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 114
15Failure to pay motor vehicle allowance........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 118
16Failure to pay travel time........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 119
17Failure to pay on a weekly or fortnightly basis........ ........ ........ ........ ........ ........ ........ ........ .. 119
18Failure to pay employees kept waiting........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 119
19Failure to pay superannuation in accordance with the cleaning services award........ ....... 124
20Failure to pay part-time workers for minimum engagement period........ ........ ........ ........ .. 135
21Requiring cleaners to work ordinary hours on more than five days per week........ ........ .. 136
22Failure to pay the applicable allowances for early morning, afternoon and non-permanent night shift 138
23Failure to pay the applicable penalty rate for permanent night shift........ ........ ........ ........ . 144
24Failure to pay cleaners the applicable penalty rate for time worked between midnight Friday and midnight Saturday........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 145
25Failure to pay cleaners the applicable penalty rate for time worked between midnight Saturday and midnight Sunday........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 145
26Failure to pay cleaners the applicable penalty rate for work on a public holiday........ ..... 151
27Failure to pay the applicable penalty rate to cleaners working overtime from midnight Sunday to midnight Saturday........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 157
28Failure to pay the applicable penalty rate to cleaners for Sunday overtime........ ........ ...... 157
29Failure to pay overtime to cleaners working on public holidays........ ........ ........ ........ ....... 164
30Failure to pay cleaners annual leave loading........ ........ ........ ........ ........ ........ ........ ........ ..... 165
31Failure to pay the national minimum wage........ ........ ........ ........ ........ ........ ........ ........ ........ 168
32Failure to pay employees in full and in money........ ........ ........ ........ ........ ........ ........ ........ .. 172

Contravention 33 Adverse action against Moona Hasan........ ........ ........ ........ ........ ........ ........ .... 173
Contravention 34 Falsely representing employment contracts as contracts for services........ ... 178
Contravention 35 Failure to keep proper records........ ........ ........ ........ ........ ........ ........ ........ ....... 182
Contravention 36 Failure to provide pay slips........ ........ ........ ........ ........ ........ ........ ........ ........ .... 183
Are Rosario Pucci and Enrico Pucci to be taken as having contravened the FW Act?........ ........ ... 184
The principles........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 184
Enrico Pucci........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 185
Rosario Pucci........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 186
The Ombudsman’s approach........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 186
The limitations of the Ombudsman’s approach........ ........ ........ ........ ........ ........ ........ ........ ....... 187
Rosario’s involvement in the contraventions........ ........ ........ ........ ........ ........ ........ ........ ........ ... 190
1Non-payment of annual leave........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 190
2Failing to pay annual leave on termination........ ........ ........ ........ ........ ........ ........ ........ ........ 192
3Failure to pay basic periodic rates of pay for personal leave........ ........ ........ ........ ........ ..... 193
4Failing to pay public holidays........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 195
5Failing to give written notice of termination........ ........ ........ ........ ........ ........ ........ ........ ..... 196
6Failure to make payments in lieu of notice........ ........ ........ ........ ........ ........ ........ ........ ........ 196
Knowledge of the application and terms of the awards........ ........ ........ ........ ........ ........ ........ ... 198
7Failure to pay minimum rates of pay to Abraham Arguello........ ........ ........ ........ ........ ...... 201
8Failure to pay minimum rates of pay to the administrative employees........ ........ ........ ..... 202
9Failure to pay superannuation in accordance with the Clerks Modern Award........ ........ .. 203
10Failure to pay overtime to administrative employees........ ........ ........ ........ ........ ........ ........ 204
11Failure to pay annual leave loading to administrative employees........ ........ ........ ........ ..... 205
12Failure to give written agreements on patterns of work to part-time cleaners........ ........ .. 205
13Failure to pay a 15% allowance for part-time cleaners........ ........ ........ ........ ........ ........ ..... 206
14Failure to pay broken shift allowance........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 207
15Failure to pay motor vehicle allowance........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 208
16Failure to pay travel time........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 208
17Failure to pay on a weekly or fortnightly basis........ ........ ........ ........ ........ ........ ........ ........ .. 208
18Failure to pay employees kept waiting........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 208
19Failure to pay superannuation in accordance with the cleaning services award........ ....... 209
20Failure to pay part-time workers for minimum engagement period........ ........ ........ ........ .. 210
21Requiring cleaners to work ordinary hours on more than five days per week........ ........ .. 210
22Failure to pay the applicable allowances for early morning, afternoon and non-permanent night shift 210
23Failure to pay the applicable penalty rate for permanent night shift........ ........ ........ ........ . 211
24Failure to pay cleaners the applicable penalty rate for time worked between midnight Friday and midnight Saturday........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 212
25Failure to pay cleaners the applicable penalty rate for time worked between midnight Saturday and midnight Sunday........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 212

26Failure to pay cleaners the applicable penalty rate for work on a public holiday........ ..... 212
27 Failure to pay the applicable penalty rate to cleaners working overtime from midnight Sunday to midnight Saturday........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 213
28Failure to pay the applicable penalty rate to cleaners for Sunday overtime........ ........ ...... 213
29Failure to pay overtime to cleaners working on public holidays........ ........ ........ ........ ....... 214
30Failure to pay cleaners annual leave loading........ ........ ........ ........ ........ ........ ........ ........ ..... 214
31Failure to pay the national minimum wage........ ........ ........ ........ ........ ........ ........ ........ ........ 214
32Failure to pay employees in full and in money........ ........ ........ ........ ........ ........ ........ ........ .. 215
34Falsely representing employment contracts as contracts for services........ ........ ........ ....... 216
35Failure to keep proper records........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 216
36Failure to provide pay slips........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 216

Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 217
Relief........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 218
Declaratory relief........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 218
Other orders........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 218
Compensation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 219

Costs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 221
Additional matters........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 222
Annexure A........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 223
Annexure B........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 225

INTRODUCTION

This is a case about the shameless exploitation of a vulnerable workforce and inept attempts to avoid its legal consequences.
The proceeding arises from an investigation by the Fair Work Ombudsman into the employment practices of a contract cleaning business operated by Grouped Property Services Pty Ltd (GPS). The investigation was apparently triggered by complaints from workers in the business. In all, over 170 complaints were received, most of them from cleaners from predominantly non-English speaking backgrounds. The Ombudsman alleges that in numerous respects GPS (or alternatively National Contractors Pty Ltd, a company apparently established by GPS’s principals) contravened the Fair Work Act 2009 (Cth) (FW Act). In addition to civil penalties she seeks, amongst other things, declaratory relief, compensation for the affected employees, and permanent injunctions.
Some 36 contraventions are pleaded, 32 of which concern failure to pay minimum entitlements set, for the most part, by one or two modern awards, but as each of the contraventions is said to have affected up to 51 employees, in truth the Ombudsman contends that there have been a total of about 580 contraventions. The Ombudsman claims that Rosario Pucci, a former director of GPS, was involved in all bar one of those contraventions and that his brother, Enrico, a current director, was involved in the remaining one. In general, for convenience and to avoid confusion, and without intending any disrespect to them, from now on I shall refer to the two brothers, as well as other members of their families, by their first name.
In a joint defence filed on 19 September 2014 (amended on 7 April 2015) GPS and Enrico denied the Ombudsman’s central allegations. They claimed that GPS was never the employer, but that the men and women in question “may have been” employed by other entities (including National Contractors) which supplied their labour to GPS. The Ombudsman contends that the labour hire arrangements were not genuine.
In its defence National Contractors maintained the integrity of the supposed labour hire arrangement, alleging that it did contract with GPS and admitted to being the employer of some of the alleged employees, claiming also to supply services to GPS of a number of “subcontractors”.
Rosario never filed a defence.
On 23 March 2015 the Ombudsman filed a statement of agreed facts and issues recording the extent of the agreement reached by those parties who did file a defence and the limits of the dispute disclosed by the pleadings.
The hearing proceeded on a second further amended originating application and a further amended statement of claim filed in court on the first day of the hearing. Those documents reflected amendments foreshadowed in the Ombudsman’s written submissions, and were served on all respondents.
THE PARTIES
The Fair Work Ombudsman
The FW Act provides for the establishment of the office of the Fair Work Ombudsman (s 681), appointed by the Governor-General by written instrument (s 687(1)). By force of s 701, the Ombudsman is also a Fair Work Inspector and, in that capacity, has standing to apply for orders in respect of contraventions of the civil remedy provisions of the Act (s 539(2)).
Grouped Property Services, Rosario and Enrico Pucci
GPS was incorporated under the Corporations Act 2001 (Cth) on 15 September 2006. It is also a constitutional corporation within the meaning of s 12 of the FW Act and so is a “national system employer” and therefore an “employer” within the meaning of the Act insofar as it employs, or usually employs, individuals: ss 12, 14(1)(a).
At all relevant times, GPS operated a cleaning business contracting its services to various entities, including gymnasiums, car parks, bowling centres, stores, a library, and schools. In recent times it has also provided security services.
Ever since its incorporation, GPS has had only one director. First it was Rosario, then Enrico. Rosario was the sole director of GPS from its incorporation on 15 September 2006 until 30 June 2011 when Enrico assumed that position. Rosario is also known as Ross. Certainly, the witnesses referred to him by that name. But I will continue to refer to him as Rosario.
Rosario was also the only shareholder in GPS from its incorporation until 9 April 2013 when he was replaced by Enrico. Rosario thus maintained his controlling interest for a short time after Enrico replaced him as director. The evidence indicates that at all relevant times the management of the company was in the hands of the two brothers.
At least at the time this matter was heard, Rosario was also an undischarged bankrupt. He was made bankrupt on his own petition on 12 April 2012. Yet, despite the prohibition imposed by the Corporations Act on undischarged bankrupts managing corporations (see ss 206A, 206B(3)), he continued to hold the most senior position in the hierarchy of the company: its Chief Operating Officer. On 9 October 2014 he was described on the GPS website ( as its Director of Operations.
National Contractors
National Contractors is the last in line of a number of companies established by the Puccis which purportedly employed labour supplied to GPS. The evidence points strongly to a practice of “phoenixing”, that is to say creating new companies from the ashes of the old, with the object of defeating creditors. In chronological order the Pucci companies were:
·Wash and Go Pty Ltd (registered on 21 July 2006, placed into liquidation on 3 February 2010, and deregistered on 11 November 2011);
·RPEP Holdings Pty Ltd (registered on the same day as Wash and Go, filed for a creditors’ voluntary winding-up on 22 July 2011, deregistered on 13 October 2013, restored to the register effective 22 May 2015, and, at the time of the hearing, under the control of a court appointed liquidator);
·Reggio Investments Pty Ltd (registered on 14 July 2010, a liquidator appointed on 15 November 2012 following a creditors’ winding up, and deregistered on 30 November 2015); and
·National Contractors (registered on 1 August 2012, two and a half months before the appointment of a liquidator to Reggio; liquidator appointed 14 September 2015, when the hearing of this application was pending).
Rosario was the director of Wash and Go until its deregistration. The sole director of RPEP was Gina Pucci. The sole director of Reggio was Belinda Grace Pucci. Gina resided at the same address as Rosario and Belinda at the same address as Enrico. It is reasonable to assume that they are related in some way. In all likelihood, Gina is Rosario’s wife and Belinda Enrico’s. The evidence does not suggest that either woman played any active part in the management of the companies or their businesses.
At the time of registration Belinda Pucci was National Contractors’ sole director and secretary. Rosario replaced Belinda as director on 1 September 2012. This situation obtained, according to Australian Securities and Investments Commission (ASIC) records tendered in evidence, until at least 28 November 2012, despite Rosario’s bankruptcy, perhaps because that circumstance was disguised by Rosario’s use of the name “Ross”. Somewhat confusingly, however, a later ASIC search (conducted on 19 September 2013) shows that Belinda was a director from the time of registration until 1 September 2012 and that “Ross” was a director from 1 September 2012 until 1 September 2012. There was no explanation for the discrepancies in the ASIC records but in all likelihood they are due to a failure to inform ASIC of the change within the required 28 days: see Corporations Act, s 205B(5). Kristina Voytenko, a human resources manager with GPS, was sole director of National Contractors at the time that search was undertaken and, according to the document, had been appointed on 1 September 2012 although her name did not appear on the search conducted on 28 November 2012.
THE HEARING
All respondents with the exception of Rosario appeared at a number of directions hearings until 18 May 2015 when Gartree Thomson Lawyers, the solicitors for National Contractors, filed a notice of intention to cease to act and then seven days later a notice of withdrawal. On 6 July 2015 Darian Romano Iacono of the curiously named firm “& Legal”, the solicitors for GPS and Enrico, followed suit, filing a notice of ceasing to act for GPS. Three days later, Mr Iacono notified the Court that he had also ceased to act for Enrico. None of the respondents complied with the pre-trial directions, none filed any evidence, and none appeared at the hearing, although all were made aware of the directions and the hearing dates. Accordingly, the Ombudsman’s evidence was unchallenged and, unless otherwise indicated, I accept it.
At 10.00pm on the day before the hearing was due to start, by email to my associate and the solicitors for the Ombudsman, Rosario advised that he was “unwell and unfit to attend the court from tomorrow until further notice due to a work related injury involving my back, RHS groin and RHS rib”. He said that he had scheduled another appointment to attend a further medical assessment and obtain x-rays, and attached a WorkCover certificate. That certificate, apparently signed by Rosario and a medical practitioner, Dr Shanthini Ilanko, described the injury as “tried stop a machine from falling injured his back and rib”. The certificate recorded that Rosario had stated that the injury occurred on 7 December 2015 (the date before the hearing) and that he first saw Dr Ilanko on that date. In the certificate, Dr Ilanko also stated that Rosario had “no current work capacity” from 7 December to 11 December 2015.
I note in passing that the certificate, part of which found its way into evidence, recorded that Rosario was an employee of GPS, a statement that appears to undermine GPS’s claim, as put in a letter from Enrico to the Ombudsman on 3 May 2013, that “[GPS] do[es] not employ or engage staff”.
Rosario’s email was followed by another the next morning, when the trial was due to start. This email was sent by Enrico at 7.04 am. It read simply:
Morning
Please see below medical certificate for Enrico Pucci. Sorry for any inconvenience.
The email attached an image of a medical certificate apparently from a Dr Hamida Rashed of the “National Home Doctor Service”, disclosing only that Enrico was examined on 7 December 2015, suffered from an undisclosed “medical condition”, and was “unfit for work/school from 07/12/15 to 08/12/15”. I arranged for my associate to forward the email to the Ombudsman’s legal representatives.
Despite the contents of the two emails, neither Rosario nor Enrico applied for an adjournment of the hearing. A party who wishes to obtain an adjournment is ordinarily required to attend court and explain precisely why the adjournment is warranted: AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [5]. Unsurprisingly, therefore, when the matter was called on for hearing, the Ombudsman urged the Court to press on.
The Rules of Court permit an applicant in these circumstances to apply for an order that the hearing proceed generally (Federal Court Rules 2011 (Cth), r 30.21) and, if such an application is made the Court may grant it (r 1.41). Although the Ombudsman’s application was not this precise, that was its effect.
Perhaps the purpose of the emails was to explain the absence of the Puccis, although neither Enrico nor Rosario had seen fit to do so on any previous occasion when the matter was before the Court. Perhaps they assumed that their correspondence would automatically result in an adjournment. Whatever their intentions, there was no sound reason to adjourn the proceedings.
First and foremost, the material emailed to the Court was silent as to the ability of either Rosario or Enrico to attend court and to fully participate in the hearing to the extent that they might have wished to do so. Enrico’s medical certificate was relevantly identical in terms to the certificate proffered to the Court of Appeal in AHB which Macfarlan JA described as “formulaic” and on which, he observed, the Court would not ordinarily act. While Rosario’s medical certificate provided more detail than his brother’s, neither addressed the relevant questions: whether he could not attend court and, if so, for what medical reason.
The Court may make any order it considers appropriate in the interests of justice (r 1.32). The Court must exercise its powers in the way that best promotes the overarching purpose of the civil procedure provisions in the Act and Rules: to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37M.
In the circumstances that obtained here, having regard to the overarching purpose, noting that Rosario had not filed a defence and neither had filed any evidence, I determined that it was in the interests of justice that the hearing proceed.
Evidence was adduced by affidavit from 42 of the 51 workers and two Fair Work Commission inspectors. The affidavits were read. Some contained annexures. In other cases documents were exhibited to them. As none of the respondents appeared at the hearing, no objections were taken, all the Ombudsman’s documents were received into evidence, none of the deponents was cross-examined, and no contrary evidence was led. One of the inspectors, Ashley Hurrell, also gave oral evidence designed to explain the method used to calculate the amounts of compensation.
THE ALLEGATIONS
As noted above, the most recent incarnation of the applicant’s pleading is a further amended statement of claim filed in court on the first day of the hearing. It is substantially the same as its predecessor which was filed and served in March last year. The only substantive change it effects is to omit a contravention included in the earlier version.
The allegations relate to the period from 1 July 2011 until 14 September 2013, referred to in the document as the Audit Period. They concern 42 cleaners, six clerical or “administrative employees” and three “award-free” employees, who are said to have been employed during the Audit Period or part of it by GPS or, in the alternative for part of the period, by National Contractors or Reggio. In total, 36 contraventions are alleged to have occurred. But in 33 of the 36 instances the Ombudsman claims that the FW Act was contravened numerous times.
Allegations 1–7 concern breaches of the National Employment Standards (prescribed in Pt 2–2 of the Act), which are minimum employment standards that cannot be displaced (s 61(1)). Section 44(1) of the Act states that a person must not contravene a provision of the National Employment standards. Allegations 7–30 concern breaches of the relevant modern award. Section 45 of the Act states that a person must not contravene a term of a modern award. Consequently, any contravention of a term of the relevant award will also be a contravention of the Act. Sections 44 and 45 are both civil remedy provisions. So too are the sections of the FW Act said to be contravened in allegations 31–36. This means that the Court may order that a penalty be imposed in the event of a contravention: see FW Act ss 539, 546.
The following contraventions are said to have taken place during the Audit Period:
Underpayment of statutory and award entitlements
(1)certain cleaners were not paid the full amounts due to them for accrued annual leave contrary to s 90(1) of the FW Act;
(2)a number of employees with accrued annual leave on termination of their employment were not paid their entitlements contrary to s 90(2) of the FW Act;
(3)in contravention of s 99 of the FW Act, four employees who took personal leave were not paid the remuneration to which they were entitled during those periods;
(4)in contravention of s 116 of the FW Act, a number of employees were not paid for public holidays or parts thereof;
(5)in contravention of s 117(1) of the FW Act, four employees were not given written notice of termination of employment;
(6)in contravention of s 117(2) of the FW Act, 10 employees were not paid in lieu of notice of termination;
(7)in contravention of s 45 of the FW Act, one of the employees did not receive his award rate of pay, contrary to subcll 16.1 and A.8 of Sch A of the Cleaning Services Award 2010 (Cleaning Services Award);
(8)in contravention of s 45 of the FW Act, the minimum rates of pay prescribed by subcll 16.1 and A2.5 of Sch A of the Clerks — Private Sector Award 2010 (Clerks Modern Award) were not paid to certain administrative employees;
(9)in contravention of s 45 of the FW Act, no contributions were made to any superannuation fund in respect of the administrative employees as required by cl 24.2 of the Clerks Modern Award;
(10)in contravention of s 45 of the FW Act, overtime rates were not paid to two administrative employees who worked overtime contrary to cl 27.1 of the Clerks Modern Award;
(11)in contravention of s 45 of the FW Act, annual leave loadings were not paid to the administrative employees as required by cl 29.3 of the Clerks Modern Award;
(12)in contravention of s 45 of the FW Act part-time cleaners were not provided with written agreements specifying their patterns of work, contrary to cl 12.4(a) of the Cleaning Services Award;
(13)in contravention of s 45 of the FW Act, several part-time cleaners were not paid the full 15% allowance to which they were entitled in addition to their hourly rates of pay under cl 12.4(b) of the Cleaning Services Award;
(14)in contravention of s 45 of the FW Act, cleaners who were required to work two shifts in one day or period of duty did not receive the allowance for doing so prescribed by cl 17.1 of the Cleaning Services Award;
(15)in contravention of s 45 of the FW Act, a cleaner who used her own motor vehicle in the course of her work was not paid the allowance required by cl 17.4 of the Cleaning Services Award;
(16)in contravention of s 45 of the FW Act, one of the cleaners who travelled from one place of work to another did not receive payment in respect of her travel time as required by cl 17.10 of the Cleaning Services Award;
(17)in contravention of s 45 of the FW Act, certain cleaners were not paid within the time required by cl 20.1 of the Cleaning Services Award;
(18)in contravention of s 45 of the FW Act, certain cleaners were left waiting for the payment of their wages by electronic funds transfer, contrary to cl 20.3 of the Cleaning Services Award;
(19)in contravention of s 45 of the FW Act, no contributions were made to any superannuation fund in respect of several cleaners, contrary to cl 23.2 of the Cleaning Services Award;
(20)in contravention of s 45 of the FW Act, several part-time cleaners were not engaged for the minimum engagement period prescribed by cl 24.2 of the Cleaning Services Award;
(21)in contravention of s 45 of the FW Act, a number of cleaners were required to work ordinary hours on more than five days per week, contrary to cl 24.2(a) of the Cleaning Services Award;
(22)in contravention of s 45 of the FW Act, several part-time cleaners working early morning, afternoon and non-permanent night shift were not paid penalty rates prescribed by cl 27.1(a) of the Cleaning Services Award;
(23)in contravention of s 45 of the FW Act, cleaners who worked permanent night shift were not paid penalty rates prescribed by cl 27.1 of the Cleaning Services Award;
(24)in contravention of s 45 of the FW Act, several part-time cleaners who worked between midnight Friday and midnight Saturday were not paid penalty rates prescribed by cl 27.2(a) of the Cleaning Services Award;
(25)in contravention of s 45 of the FW Act, several part-time cleaners who worked between midnight Saturday and midnight Sunday were not paid penalty rates prescribed by cl 27.2(b) of the Cleaning Services Award;
(26)in contravention of s 45 of the FW Act, several cleaners who worked public holidays were not paid penalty rates prescribed by cl 27.3 of the Cleaning Services Award;
(27)in contravention of s 45 of the FW Act, several part-time cleaners who worked overtime between midnight Sunday and midnight Saturday were not paid penalty rates prescribed by cl 28.2 of the Cleaning Services Award;
(28)in contravention of s 45 of the FW Act, several part-time cleaners who worked overtime on a Sunday were not paid penalty rates as prescribed by cl 28.3 of the Cleaning Services Award;
(29)in contravention of s 45 of the FW Act, several cleaners who worked overtime on public holidays were not paid double time and a half for all the overtime they worked on those days as prescribed by cl 28.4 of the Cleaning Services Award;
(30)in contravention of s 45 of the FW Act, several cleaners who took periods of annual leave were not paid the additional 17.5% loading prescribed by cl 29.4 of the Cleaning Services Award;
(31)in contravention of s 293 of the FW Act, the non-award employees were not paid at least the National Minimum Wage for the time they worked;
(32)on certain occasions, in contravention of s 323 of the FW Act, employees were not paid in full and in money.
Adverse action
(33)in contravention of s 340 of the FW Act, adverse action was taken against Moona Hasan because she exercised a workplace right by seeking payment for 15 days worked;
False representations
(34)in contravention of s 357(1) of the FW Act, representations were made to certain employees that they were engaged, or would be engaged, under a contract for services under which they were performing, or would perform, work as an independent contractor, when they were in fact and in law engaged and worked as employees under contracts of employment;
Record-keeping contraventions
(35)in contravention of s 535 of the FW Act, records were not kept of the details of penalty rates or allowances, overtime hours worked and the start and cessation times of overtime worked for individual employees, leave taken by employees and the balances, if any, of leave entitlements, or liability for, and particulars relating to payments of contributions with respect to superannuation; and
Failing to provide pay slips
(36)in contravention of s 536(1) of the FW Act, pay slips were not provided to a number of employees within one working day of the employees being paid.

These allegations are made against GPS and, in the alternative, National Contractors. Rosario is also alleged to have been involved in all the contraventions with the exception of the 33^rd (adverse action against Ms Hasan) in which the Ombudsman contends Enrico was involved.
In most instances, the employees in respect of whom the contraventions were said to have occurred were not named in the originating application or the statement of claim. Instead, particulars were given to the effect that Excel spreadsheets containing relevant details were “available for inspection” at the Ombudsman’s Sydney office. I regard this as unsatisfactory. There is no apparent reason why a schedule of the employees to which each contravention relates could not have been attached to the pleading but no complaint was made about the pleading by any of the respondents at any time.
THE ISSUES
In broad terms the following issues arise for consideration:
(1)Were all 51 employees or were some independent contractors?
(2)If they were employees, who was their true employer? Were the purported labour hire arrangements a sham?
(3)Were the employees covered by the awards were allegedly breached?
(4)Have the elements of the contraventions been made out?
(5)Were Rosario and Enrico involved in the contraventions as alleged?
WERE ALL 51 EMPLOYEES RATHER THAN INDEPENDENT CONTRACTORS?
This is a matter of critical importance as the obligations under the FW Act are imposed on employers and owed to employees.
In their defence GPS and Enrico denied that any of the 51 individuals the subject of the Ombudsman’s allegations was an employee of GPS and generally said that they did not know whether they were employees of National Contractors, a contention I regard as disingenuous in the light of the close relationship between the two companies and their management personnel. National Contractors admitted that 14 of the 51 were employees and said that another 14 were contractors. The alleged contractors are Wendy Bong, Juliana Botero Hernandez, Marco Diaz, Andrea Grigoletto, Marissa Hall, Moona Hasan, Thomas Sung Hong, Martyn Jones, Khaga Kandel, Charles Mascarenhas, Christine Meager, Giang Ngo, Jessica Alvarado Palma, and Jose Pena. All of these men and women gave evidence on affidavit except for Juliana Botero Hernandez and Jessica Alvarado Palma.
The question of whether someone is an employee or an independent contractor is not to be determined by what they may be called or, indeed, what they may call themselves. A label, consensual or otherwise, cannot affect “the inherent character” of the relationship: Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17 at 25 (Isaacs J). It is the substance or reality of the relationship that counts: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [24], [58]. Further, as the majority observed in Hollis v Vabu at [24]:
[T]he relationship between the parties … is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing “the totality of the relationship” between the parties; it is this which is to be considered.
(Citations omitted.)
Bromberg J discussed at some length the reason for, and the importance of, this approach in On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 214 FCR 82.
A contract of employment is based on personal service. Shortly put, the difference between an employee and an independent contractor is “rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own”: Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 at 217 (Windeyer J). Control (and later the right to control) the manner in which the work is done was once determinative. For some time now, however, it is regarded as only one relevant factor (albeit an important one); the totality of the relationship must be considered: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29 (Mason J). Other indicia of an employment relationship include “whether tax is deducted; whether sub-contracting is permitted; … whether uniforms are worn; whether tools are supplied; whether holidays are permitted; … whether wages are paid …; what is disclosed in the tax returns; whether one party ‘represents’ the other; for the benefit of whom does the goodwill in the business inure; how ‘business-like’ is the alleged business of the putative employee – are there systems, manuals and invoices; and so on …”: ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 at [29] (Perram J) citing Stevens v Brodribb at 24 (Mason J) and 36–37 (Wilson and Dawson JJ).
As Bromberg J put it in On Call Interpreters at [204], the modern approach to determining whether someone is an employee is “multi-factorial”. His Honour described the exercise as one involving a level of intuition, referring at [205], amongst other things, to the following passage in Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 where Mummery J said:
The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.
So what does the evidence disclose about the position of the 51 people the subject of the Ombudsman’s allegations?
The evidence discloses that, despite some clumsy attempts to create relationships of principal and contractor, the inherent character of the relationship in each of the 51 cases was one of employer and employee. This is illustrated by the cases of the 14 individuals who were said by National Contractors to be independent contractors, but the evidence in relation to the remaining 37 is to the same effect.
I begin with Jessica Alvarado Palma.
Ms Alvarado did not give evidence and the circumstances surrounding her involvement with GPS are somewhat murky. Nonetheless, a picture can be obtained from the various records that were exhibited to the affidavit of Fleur Millington, the inspector in charge of the Ombudsman’s investigation. One of these is a Workplace Complaint Form, which contains a handwritten complaint by Ms Alvarado. The form also attaches her responses to the Ombudsman’s “Contractor decision tool” questionnaire.
Ms Alvarado’s answers in the questionnaire indicate that she came to work for GPS after responding to an advertisement on the Gumtree website. She said that she spoke to “Kristina Voytenko (HR)” who organised a meeting between her and the “SA supervisor”. Ms Alvarado apparently lived and worked in South Australia. She gave a South Australian address in her complaint form.
Ms Alvarado said that she had a contract, but had never been given a copy of it. She was told by her supervisor that she would be paid at the rate of $18 an hour and that the rate was not negotiable. She was also told by her supervisor what her working hours would be and that they would not alter from week to week. She said that the supervisor told her how to do the job. She was not required to provide any equipment or materials; everything was provided by GPS. She said that she received neither superannuation nor leave entitlements. In her complaint form, she said that she was asked to provide an ABN rather than a tax file number. An ABN, I interpolate, is an Australian Business Number. Companies registered under the Corporations Act are entitled to an ABN. Otherwise, to qualify for an ABN, one needs to be carrying on an enterprise (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 9-20) in Australia or, in the course or furtherance of doing so, make supplies that are connected with Australia: see A New Tax System (Australian Business Number) Act 1999 (Cth), s 8. A person is not entitled to an ABN if the only work the person performs is in someone else’s enterprise.
In about mid-January 2013 Wendy Bong, an Indonesian national, learned from a friend that GPS was hiring cleaners. He called the company and spoke to “Kristina”, presumably Kristina Voytenko. He was asked to come into the office for an interview. He was told he would be paid $15 an hour and that the position was permanent part-time. After some discussion about when he could work, he was told to start the following Monday, working Monday to Saturday. He was given various documents but no contract and was not asked to sign anything. On his first shift on or about 1 February 2013 he was met by “Ross”. He introduced himself as “the big boss”. Presumably this was Rosario. He gave Mr Bong a t-shirt with the GPS logo on the back. He showed him and the other new cleaners what to do and where and how to do their tasks. He also showed them the store room where all the equipment was kept. Mr Bong supplied no equipment of his own. He worked a nine hour shift with a one hour break for a meal. His supervisor (Kevin) told him when to take the break. He recorded his starting times in a log book kept in “the cleaning room”. Mr Bong worked a total of nine days (for which he was not paid) after which he was informed that GPS had lost the contract to clean the premises where he had been working. His affidavit, incidentally, makes no mention of National Contractors.
Juliana Botero Hernandez was another of the cleaners who did not give evidence in the proceeding. Nonetheless, some details of her work can be gleaned from her Workplace Complaint Form. She was hired to work as a cleaner at Goodlife gymnasiums (described elsewhere in the evidence as “health clubs”) in Fortitude Valley and Edward Street in Brisbane. She worked Monday to Friday 4.5 hours each week day from 20 March 2013 to 8 April 2013.
Ms Botero records the name of her “business owner(s) and/or manager” as Abraham Arguello, who, from about 1 December 2010, was the Queensland Operations Manager of GPS.
Mr Arguello swore an affidavit in the proceeding. He deposed that he was responsible for the cleaners working at the Goodlife clubs in Brisbane: for providing their equipment, showing them what to do if they needed help, and giving them warnings if they did not follow GPS’s rules for how the cleaning was to be done. He said that GPS had a uniform for its cleaners. He was responsible for showing the cleaners where they could find the daily checklist of their duties and telling the cleaners that they were to tick off the tasks as they completed them. Mr Arguello did not refer specifically to Ms Botero in his evidence (indeed, he did not refer to any cleaner by name) but it is reasonable to infer that his description of the system of work applied to her.
Marco Diaz is a Columbian national who came to Australia on a student visa. He was looking for work in late November 2012 when he was put in touch with Abraham Arguello. Mr Arguello told him he had two positions available for a cleaner — at Holland Park and Morningside in Brisbane. On 7 December 2012 Mr Arguello telephoned him and told him he could start work with GPS four days later. Mr Arguello picked him up at his house on 11 December 2012, introducing himself as a manager for GPS. He was driving a company car. Mr Arguello told him he needed to get an ABN and that the rate was $18 an hour. Mr Diaz had no idea what an ABN was. He had no cleaning experience and was not running his own business.
On 31 December 2012 Ms Voytenko sent Mr Diaz “the Sub Contractors Agreement” to review and return, signed, no later than 4 January 2013 “to ensure your payment”. The agreement was between National Contractors (“the Principal”) and Mr Diaz (“the Supplier”). This was the first time Mr Diaz had come across the name National Contractors. It bore no relationship to reality. It presupposed that Mr Diaz was supplying personnel to National Contractors when he did not. The Supplier was described in cl 4 as:
an independent operator in regards to the supply of the Service and must therefore exercise independent control, management and supervision of its activities in complying with its obligations under this Contract. The Supplier is not in any way an agent of, an employee of, or in partnership with, the Principal.
Yet Mr Diaz exercised no independent control, management or supervision. Throughout the time he worked for GPS, Mr Diaz worked under the direct supervision of Mr Arguello. He was directed when, where, and how to work, what machines and chemicals to use, and the order in which the work was to be done. He was required to sign in and out at the beginning and end of each shift. On arrival at the workplace he changed into a GPS t-shirt given to him by Mr Arguello. If Mr Arguello had problems with his work he would text him about them. When the vacuum cleaner was not working, he telephoned Mr Arguello.
Clause 13 of the agreement contained terms and conditions which included:
(a)The Supplier is responsible for providing the cleaning supplies, chemicals and the cleaning equipment (excluding plastic bin liners) necessary to perform the Service to the required specifications.
But Mr Diaz had no responsibility for providing cleaning supplies chemicals or equipment. All the equipment he used was provided by GPS and if anything was running out he would tell Mr Arguello who would restock the cleaners’ room with anything that was needed.
By clause 18 the “Supplier” was required to take out public liability insurance of no less than $5 million and “comprehensive workers compensation insurance to cover all its employees” and provide certificates of currency.
Mr Diaz did not take out any insurance.
Mr Diaz had to ask where to sign the agreement as it only provided for the signature of a director. Ms Voytenko told him, in effect, to sign as director. He did as requested.
After Mr Diaz had been working for GPS for about a month, the assistant accountant, Mr Modi, sent him an email asking for his bank details and for two separate invoices for two periods of work attaching a template. I note that cl 13(d) of the contract required the Supplier to invoice the Principal twice monthly and the Principal agreed to pay the amount owing within 14 days of receipt of a tax invoice for the service rendered.
On around 30 January 2013, after Mr Diaz had been working for GPS for over six weeks, Ms Voytenko sent him a number of forms he was told he needed to complete “to formally start the cleaning position”. They included a “Sub-contractor Expression of Interest” and “Sub-contractor Fact sheet”. He had trouble filling them in and emailed Ms Voytenko telling her he did not know how to answer many of the questions and inviting her to do so for him. She obliged by return email. Most of the questions could not be answered and he was told to leave them blank. When he informed Ms Voytenko that he did not understand what insurance he was supposed to have, she told him that that was “ok for now”.
He applied to the ATO for an ABN, as Mr Arguello had directed him to do, but he was unable to obtain one. On 21 December 2012 the ATO wrote to him:
[Y]ou are not eligible … because you’re not commencing or currently carrying on an enterprise such as a business or commercial activity. If you commence carrying on an enterprise in the future you can reapply for an ABN.
When Mr Diaz told Mr Arguello he had applied unsuccessfully for an ABN, he was told to apply again. Once again, he did as he was told. He was asked a number of questions about his duties. After he replied to those questions, his interrogator told him:
Everything you are doing is like an employee, so the ATO is not going to give you an ABN.
Dana Starcevic from the ATO then emailed Mr Diaz stating:
As per our telephone conversation below are some examples of documents you could provide:
–Registration — Business, Trading name, vehicle (if applicable)
–Contract/agreement — work, rental (premises)
–Copy of Invoice for work completed
–Statement/Receipt for equipment/tools purchased
–Public liability insurance/Quotes
–Website details
–Brochures, pamphlets
–Business cards
Could you please provide the above documents or any other information/documents to prove that you are in business within 7 days (Due 28/02/2013).
If documents have not been received by the set date your application will be refused. Please contact me if you have any problem in providing these documents by the set date.
Mr Diaz forwarded the email to Ms Voytenko and asked her whether she had “any suggestion about what I should attach to them”. Mr Diaz said that he could not remember receiving a reply.
On 1 March 2013 the ATO wrote back to Mr Diaz rejecting his application for the same reason as before, that is to say, because he was “not currently carrying on an enterprise such as a business or commercial activity”.
Marissa Hall worked at two Goodlife health clubs in Queensland from 18 March to 12 April 2013. She obtained the work, which had been advertised on the Gumtree website, after attending an interview with Mr Arguello on 15 March 2013. They arranged to meet at one of the clubs and, after showing her around each of them, he explained to her how she would work, the hours she would work, and when she would start. He told her that she would be paid $18 per hour and the cleaning products would be provided by the company. Indeed, all equipment was provided by the company. He also told her that it was a requirement of the job that she have an ABN.
Unsure whether she was eligible for an ABN, Ms Hall contacted the customer service department of the Australian Taxation Office (ATO). She was informed that she was not entitled to an ABN because of the way she carried out her work.
Ms Hall worked as directed by Mr Arguello. On occasions her work was inspected by Rosario.
After she had been working for around two weeks, Ms Hall received a bundle of documents from Ms Voytenko. They included a “Sub-Contractor Fact Sheet”, “Sub-Contractor Expression of Interest” and an invoice template. The accompanying note asked her to complete all the paperwork and return it as soon as possible. Ms Hall found it difficult to complete because she did not have an ABN and did not understand what was meant by such things as workers compensation or public liability policies. She did not sign the documents and told Ms Voytenko she could not do so because she did not have an ABN. After she was pressed to provide an ABN she quit the job. She worked a total of 54 hours but was never paid. When she said she was leaving, she was told she would only be paid for 11 of the 18 days she worked because she had not given two weeks’ notice.
Thomas Sung Hong began working for GPS on 4 January 2010. He finished in early November 2013. He is a Korean immigrant. He was looking with a friend for additional cleaning work in about mid December 2009 when his friend mentioned GPS. They went to the GPS office on Parramatta Road where “Mike” offered him a cleaning job at the Goodlife gymnasium in Martin Place. He was told it was a permanent part-time position. Mike gave him a white shirt to wear during his shifts. The shirt carried the GPS logo on the front and back and a GPS phone number on the back.
Mr Hong was also given a number of documents. One was a tax file declaration form, which he completed and returned straight away. One was a contract bearing a GPS logo stating that it was for “permanent part-time employment”. Another was an Emergency Contact List in which Rosario was described as the Chief Operating Officer, Enrico as the General Manager of Client Services, and Alfredo Pucci (the brothers’ father) as Operations Manager. Mr Hong did not keep copies of the documents but remembered that the contract also recorded the rate of pay as $17.95 an hour and referred to annual leave and sick pay. When he noticed this, he said he wanted annual leave and sick pay, asked whether he would get them and was told “it’s good; it’s in the contract”. Mr Hong signed the contract and returned it to Mike. He also asked whether he would be paid superannuation at which point Mike asked Alfredo to “make a super account for Thomas”. Alfredo agreed and assured Mr Hong that “they” would take care of it.

Having regard to the fact that not all the alleged contraventions have been made out, I propose to defer the question of compensation until the penalty hearing.
COSTS
Given the limitations on making an order for costs in a matter of this kind (see FW Act, s 570), I will reserve my decision on whether such an order can or should be made until I have heard from the Ombudsman on the question of penalties.
ADDITIONAL MATTERS
In view of the matters disclosed in this proceeding concerning the respondents’ methods of operation, I propose to direct the District Registrar to forward a copy of these reasons forthwith to ASIC and the ATO.
I wish to hear from the parties on whether a banning order should also be made preventing Rosario and Enrico from holding directorships of any companies and from incorporating new companies.

I certify that the preceding one thousand one hundred and forty-three (1143) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.
Associate:
Dated: 26 August 2016
ANNEXURE A
Table of employees

No. Name Award

1 Alfonso Alcuitas Cleaning Services Award

2 Jessica Alvarado Palma Cleaning Services Award

3 Abraham Arguello Cleaning Services Award

4 Paul Bacon Cleaning Services Award

5 Wendy Bong Cleaning Services Award

6 Juliana Botero Hernandez Cleaning Services Award

7 Angela Bustos Alvarado Cleaning Services Award

8 Mariana De Queiroz Cleaning Services Award

9 Marco Diaz Cleaning Services Award

10 Rangana Dissanayake Cleaning Services Award

11 Barry Dowling Cleaning Services Award

12 Aisling Dunn Clerks Modern Award

13 Fawaz El Rahman Cleaning Services Award

14 Andrea Grigoletto Cleaning Services Award

15 Marissa Hall Cleaning Services Award

16 Victoria Hardie Award Free

17 Moona Hasan Clerks Modern Award

18 Alyson Hellyer Cleaning Services Award

19 Freddy Herrera Cleaning Services Award

20 Fiona Holland Cleaning Services Award

21 Martyn Jones Award Free

22 Michael Kallee Cleaning Services Award

23 Khaga Kandel Cleaning Services Award

24 Bibek Luitel Cleaning Services Award

25 Robin Malla Cleaning Services Award

26 Charles Mascarenhas Cleaning Services Award

27 Tammy May Cleaning Services Award

28 Christine Meager Clerks Modern Award

29 Jainil Modi Clerks Modern Award

30 Kian Mu Cleaning Services Award

31 Giang Ngo Cleaning Services Award

32 Helen Pakas Cleaning Services Award

33 Jose Pena Cleaning Services Award

34 Barbara Piper Cleaning Services Award

35 Anna Plows Cleaning Services Award

36 Tuula Rintala Cleaning Services Award

37 Linda Robinson Cleaning Services Award

38 Paul Saint James Award Free

39 Sumit Salhotra Cleaning Services Award

40 Lara Satchell Clerks Modern Award

41 Md Shamsuzzoha Clerks Modern Award

42 Baljinder Singh Cleaning Services Award

43 Dianne Sjoberg Cleaning Services Award

44 Cheryl Sorrell Cleaning Services Award

45 Thomas Sung Hong Cleaning Services Award

46 Tui Tane Cleaning Services Award

47 Xiao Teng Cleaning Services Award

48 Sekson Thinathin Cleaning Services Award

49 Tashi Wangchuck Cleaning Services Award

50 Robert Wilkey Cleaning Services Award

51 Wen Yang Cleaning Services Award

ANNEXURE B
Table of contraventions
Grouped Property Services Pty Ltd

No Section Allegation Employee(s) Proved?

1 s 44 Failing to pay employees for periods of annual leave as prescribed by s 90(1) of the FW Act Barry Dowling No

Tammy May Yes

Helen Pakas No

Robert Wilkey Yes

2 s 44 Failing to pay employees on termination the amounts that would have been payable in respect of their accrued but untaken annual leave, had they taken the annual leave, as prescribed by 90(2) of the FW Act Alfonso Alcuitas Yes

Jessica Alvarado Palma No

Abraham Arguello Yes

Paul Bacon Yes

Wendy Bong No

Juliana Botero Hernandez Yes

Angela Bustos Alvarado No

Marco Diaz No

Rangana Dissanayake Yes

Barry Dowling Yes

Aisling Dunn No

Fawaz El Rahman Yes

Andrea Grigoletto No

Marissa Hall Yes

Moona Hasan No

Alyson Hellyer No

Freddy Herrera Yes

Fiona Holland Yes

Michael Kallee Yes

Khaga Kandel No

Bibek Luitel Yes

Robin Malla No

Charles Mascarenhas Yes

Tammy May Yes

Christine Meager Yes

Jainil Modi No

Kian Mu Yes

Giang Ngo No

Jose Pena Yes

Barbara Piper Yes

Anna Plows No

Mariana De Queiroz Yes

Tuula Rintala Yes

Linda Robinson Yes

Paul Saint James No

Sumit Salhotra Yes

Lara Satchell No

Md Shamsuzzoha No

Baljinder Singh Yes

Dianne Sjoberg Yes

Cheryl Sorrell Yes

Thomas Sung Hong Yes

Tui Tane Yes

Xiao Teng Yes

Sekson Thinathin Yes

Tashi Wangchuck Yes

Robert Wilkey Yes

Wen Yang
Yes

3 s 44
Failing to pay employees the basic periodic rate of pay for a period of personal leave as prescribed by s 99 of the FW Act
Barry Dowling No

Anna Plows No

Linda Robinson Yes

Lara Satchell No

4 s 44 Failing to pay employees in respect of public holidays or part public holidays for which the employees were absent as prescribed by s 116 of the FW Act Jessica Alvarado Palma Yes

Angela Bustos Alvarado Yes

Marco Diaz No

Barry Dowling No

Marissa Hall No

Fiona Holland No

Michael Kallee No

Robin Malla Yes

Helen Pakas Yes

Dianne Sjoberg No

Cheryl Sorrell No

Thomas Sung Hong Yes

Xiao Teng
Yes

5 s 44 Failing to give employees written notice of termination as prescribed by s 117(1) of the FW Act Angela Bustos Alvarado Yes

Lara Satchell Yes

Wen Yang Yes

Xiao Teng Yes

6 s 44 Failing to pay employees as prescribed by s 117(2) of the FW Act when their employment was terminated without sufficient notice Abraham Arguello Yes

Wendy Bong Yes

Angela Bustos Alvarado Yes

Rangana Dissanayake Yes

Barbara Piper Yes

Linda Robinson Yes

Lara Satchell Yes

Xiao Teng Yes

Robert Wilkey Yes

Wen Yang Yes

7 s 45 Failing to pay an employee at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 of the Cleaning Services Award Abraham Arguello Yes

8 s 45 Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Modern Award Aisling Dunn Yes

Moona Hasan Yes

Christine Meager Yes

Jainil Modi No

Md Shamsuzzoha Yes

9 s 45 Failing to make superannuation contributions for the benefit of administrative employees in accordance with cl 24.2 of the Clerks Modern Award Aisling Dunn Yes

Moona Hasan Yes

Christine Meager Yes

Jainil Modi No

Lara Satchell Yes

Md Shamsuzzoha Yes

10 s 45 Failing to pay overtime to administrative employees as prescribed by cl 27.1 of the Clerks Modern Award Lara Satchell Yes

Md Shamsuzzoha Yes

11 s 45 Failing to pay annual leave loading to administrative employees as prescribed by cl 29.3 of the Clerks Modern Award Aisling Dunn No

Moona Hasan No

Christine Meager No

Jainil Modi No

Lara Satchell No

Md Shamsuzzoha No

12 s 45 Failing to give written agreements on patterns of work to part-time cleaning employees as prescribed by cl 12.4(a) of the Cleaning Services Award Alfonso Alcuitas Yes

Paul Bacon Yes

Wendy Bong No

Mariana De Queiroz Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Marissa Hall Yes

Alyson Hellyer Yes

Freddy Herrera Yes

Fiona Holland Yes

Bibek Luitel No

Robin Malla Yes

Tammy May Yes

Kian Mu Yes

Helen Pakas Yes

Jose Pena Yes

Barbara Piper Yes

Anna Plows Yes

Thomas Sung Hong Yes

Tui Tane Yes

Xiao Teng Yes

Sekson Thinathin Yes

Tashi Wangchuck Yes

13 s 45 Failing to pay a 15% allowance to part-time cleaning employees as prescribed by cl 12.4(b) of the Cleaning Services Award Paul Bacon Yes

Juliana Botero Hernandez Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Marco Diaz Yes

Fawaz El Rahman Yes

Marissa Hall Yes

Freddy Herrera Yes

Khaga Kandel No

Bibek Luitel No

Tammy May Yes

Giang Ngo No

Helen Pakas No

Barbara Piper Yes

Anna Plows Yes

Linda Robinson No

Dianne Sjoberg Yes

Cheryl Sorrell Yes

Tui Tane Yes

Tashi Wangchuck Yes

14 s 45 Failing to pay cleaning employees the broken shift allowance prescribed by cl 17.1 of the Cleaning Services Award Alfonso Alcuitas No

Angela Bustos Alvarado Yes

Barry Dowling No

Fawaz El Rahman Yes

Kian Mu No

Helen Pakas Yes

Barbara Piper No

Baljinder Singh No

Dianne Sjoberg Yes

Cheryl Sorrell Yes

Xiao Teng Yes

15 s 45 Failing to pay Anna Plows a motor vehicle allowance prescribed by cl 17.4 of the Cleaning Services Award Anna Plows No

16 s 45 Failing to pay Anna Plows for her travel time as prescribed by cl 17.10 of the Cleaning Services Award Anna Plows Yes

17 & 18 s 45 Failing to pay employees on a weekly or fortnightly basis and failing to pay employees left waiting, as prescribed by cll 20.2 and 20.3 of the Cleaning Services Award Alfonso Alcuitas Yes

Paul Bacon Yes

Wendy Bong Yes

Mariana De Queiroz Yes

Marco Diaz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Andrea Grigoletto Yes

Marissa Hall Yes

Freddy Herrera Yes

Fiona Holland Yes

Khaga Kandel Yes

Bibek Luitel Yes

Robin Malla Yes

Charles Mascarenhas Yes

Tammy May Yes

Kian Mu Yes

Giang Ngo Yes

Helen Pakas Yes

Barbara Piper Yes

Anna Plows Yes

Linda Robinson Yes

Thomas Sung Hong Yes

Tui Tane Yes

Xiao Teng Yes

Sekson Thinathin Yes

Tashi Wangchuck Yes

Wen Yang Yes

19 s 45 Failing to make superannuation contributions for the benefit of cleaning employees as required by cl 23.2 of the Cleaning Services Award Alfonso Alcuitas Yes

Jessica Alvarado Palma Yes

Abraham Arguello No

Paul Bacon Yes

Angela Bustos Alvarado No

Mariana De Queiroz No

Marco Diaz Yes

Rangana Dissanayake No

Barry Dowling Yes

Fawaz El Rahman No

Andrea Grigoletto Yes

Alyson Hellyer No

Freddy Herrera No

Fiona Holland Yes

Michael Kallee No

Khaga Kandel Yes

Bibek Luitel Yes

Robin Malla Yes

Charles Mascarenhas Yes

Tammy May Yes

Kian Mu Yes

Helen Pakas Yes

Jose Pena Yes

Anna Plows Yes

Tuula Rintala No

Linda Robinson Yes

Sumit Salhotra No

Dianne Sjoberg No

Cheryl Sorrell No

Thomas Sung Hong Yes

Tui Tane No

Xiao Teng Yes

Sekson Thinathin Yes

Tashi Wangchuck Yes

Robert Wilkey Yes

20 s 45 Failing to pay cleaning employees for the minimum engagement period, as required by cl 24.2(b) of the Cleaning Services Award Alfonso Alcuitas No

Fawaz El Rahman No

Robin Malla No

Tammy May No

Helen Pakas No

Baljinder Singh No

Dianne Sjoberg No

Cheryl Sorrell No

Tui Tane No

Sekson Thinathin No

21 45 Requiring cleaning employees to work ordinary hours on more than five days per week, contrary to cl 24.2(a) of the Cleaning Services Award Alfonso Alcuitas No

Rangana Dissanayake No

Barry Dowling No

Fawaz El Rahman No

Freddy Herrera No

Bibek Luitel No

Tammy May No

Kian Mu No

Jose Pena No

Linda Robinson No

Thomas Sung Hong No

Sekson Thinathin No

22 s 45 Failing to pay cleaners penalty rates for early morning, afternoon and non-permanent night shift as prescribed by cl 27.1(a) of the Cleaning Services Award Alfonso Alcuitas Yes

Jessica Alvarado Palma No

Wendy Bong Yes

Angela Bustos Alvarado No

Mariana De Queiroz Yes

Fawaz El Rahman Yes

Andrea Grigoletto Yes

Alyson Hellyer No

Fiona Holland Yes

Michael Kallee Yes

Bibek Luitel Yes

Robin Malla Yes

Charles Mascarenhas No

Tammy May No

Kian Mu Yes

Helen Pakas Yes

Jose Pena Yes

Barbara Piper Yes

Anna Plows Yes

Tuula Rintala Yes

Sumit Salhotra Yes

Dianne Sjoberg Yes

Cheryl Sorrell Yes

Thomas Sung Hong Yes

Tui Tane No

Xiao Teng Yes

Sekson Thinathin Yes

Wen Yang Yes

23 s 45 Failing to pay cleaning employees penalty rates for permanent night shift as prescribed by cl 27.1(b) of the Cleaning Services Award Rangana Dissanayake Yes

Barry Dowling Yes

Alyson Hellyer Yes

Freddy Herrera Yes

Baljinder Singh No

Thomas Sung Hong Yes

Robert Wilkey Yes

24 s 45 Failing to pay cleaning employees penalty rates for working between midnight Friday and midnight Saturday as prescribed by cl 27.2(a) of the Cleaning Services Award Alfonso Alcuitas Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Andrea Grigoletto No

Alyson Hellyer Yes

Freddy Herrera Yes

Fiona Holland Yes

Robin Malla Yes

Charles Mascarenhas Yes

Tammy May Yes

Kian Mu Yes

Anna Plows Yes

Tuula Rintala Yes

Linda Robinson No

Sumit Salhotra Yes

Baljinder Singh Yes

Thomas Sung Hong Yes

Tui Tane Yes

Sekson Thinathin Yes

Robert Wilkey Yes

Wen Yang Yes

25 s 45 Failing to pay cleaning employees penalty rates for working between midnight Saturday and midnight Sunday as prescribed by cl 27.2(b) of the Cleaning Services Award Alfonso Alcuitas Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Alyson Hellyer Yes

Fiona Holland Yes

Michael Kallee Yes

Khaga Kandel Yes

Robin Malla Yes

Tammy May Yes

Kian Mu Yes

Giang Ngo Yes

Helen Pakas Yes

Barbara Piper Yes

Anna Plows Yes

Tuula Rintala Yes

Linda Robinson No

Sumit Salhotra Yes

Baljinder Singh Yes

Sekson Thinathin Yes

Robert Wilkey Yes

Wen Yang Yes

26 s 45 Failing to pay cleaning employees penalty rates for working on public holidays as prescribed by cl 27.3 of the Cleaning Services Award Alfonso Alcuitas Yes

Jessica Alvarado Palma Yes

Angela Bustos Alvarado No

Mariana De Queiroz Yes

Marco Diaz Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Andrea Grigoletto No

Alyson Hellyer Yes

Freddy Herrera Yes

Khaga Kandel Yes

Charles Mascarenhas Yes

Tammy May Yes

Kian Mu Yes

Helen Pakas No

Anna Plows Yes

Linda Robinson Yes

Baljinder Singh Yes

Thomas Sung Hong Yes

Tui Tane Yes

Xiao Teng No

Sekson Thinathin Yes

Robert Wilkey Yes

27 s 45 Failing to pay cleaning employees penalty rates for overtime worked between midnight Sunday and midnight Saturday as prescribed by cl 28.2 of the Cleaning Services Award Alfonso Alcuitas Yes

Jessica Alvarado Palma Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Alyson Hellyer Yes

Freddy Herrera Yes

Michael Kallee No

Khaga Kandel Yes

Bibek Luitel No

Robin Malla Yes

Charles Mascarenhas No

Tammy May Yes

Kian Mu Yes

Giang Ngo Yes

Helen Pakas Yes

Jose Pena Yes

Anna Plows Yes

Tuula Rintala Yes

Linda Robinson No

Sumit Salhotra Yes

Dianne Sjoberg Yes

Thomas Sung Hong Yes

Tui Tane Yes

Xiao Teng No

Sekson Thinathin Yes

Tashi Wangchuck Yes

Robert Wilkey Yes

28 s 45 Failing to pay cleaning employees penalty rates for overtime worked on a Sunday as prescribed by cl 28.3 of the Cleaning Services Award Alfonso Alcuitas Yes

Jessica Alvarado Palma Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Alyson Hellyer Yes

Freddy Herrera Yes

Fiona Holland Yes

Robin Malla Yes

Charles Mascarenhas No

Tammy May Yes

Kian Mu Yes

Helen Pakas Yes

Jose Pena Yes

Anna Plows Yes

Tuula Rintala Yes

Linda Robinson No

Sumit Salhotra Yes

Baljinder Singh Yes

Dianne Sjoberg Yes

Cheryl Sorrell Yes

Thomas Sung Hong Yes

Tui Tane Yes

Sekson Thinathin Yes

Robert Wilkey Yes

29 s 45 Failing to pay cleaning employees a penalty rate for overtime worked on a public holiday as prescribed by cl 28.4 of the Cleaning Services Award Barry Dowling Yes

Alyson Hellyer Yes

Khaga Kandel Yes

Tammy May Yes

Linda Robinson Yes

Thomas Sung Hong Yes

Robert Wilkey Yes

30 s 45 Failing to pay cleaning employees annual leave loading as prescribed by cl 29.4 of the Cleaning Services Award for periods of annual leave taken Alfonso Alcuitas No

Jessica Alvarado Palma No

Abraham Arguello No

Paul Bacon No

Wendy Bong No

Juliana Botero Hernandez No

Angela Bustos Alvarado No

Mariana De Queiroz Yes

Marco Diaz No

Rangana Dissanayake No

Barry Dowling Yes

Fawaz El Rahman No

Andrea Grigoletto No

Marissa Hall No

Alyson Hellyer No

Freddy Herrera No

Fiona Holland No

Michael Kallee No

Khaga Kandel No

Bibek Luitel No

Robin Malla
No

Charles Mascarenhas No

Tammy May Yes

Kian Mu No

Giang Ngo No

Helen Pakas Yes

Jose Pena No

Barbara Piper No

Anna Plows No

Tuula Rintala No

Linda Robinson No

Sumit Salhotra No

Baljinder Singh No

Dianne Sjoberg No

Cheryl Sorrell No

Thomas Sung Hong Yes

Tui Tane No

Xiao Teng No

Sekson Thinathin No

Tashi Wangchuck No

Robert Wilkey Yes

Wen Yang No

31 s 293 Failing to pay award/agreement free employees the national minimum wage Victoria Hardie No

Martyn Jones Yes

Paul Saint James Yes

32 s 323 Failing to pay employees in full and in money Alfonso Alcuitas Yes

Jessica Alvarado Palma Yes

Abraham Arguello Yes

Paul Bacon Yes

Wendy Bong Yes

Juliana Botero Hernandez Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Marco Diaz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Aisling Dunn Yes

Fawaz El Rahman Yes

Andrea Grigoletto Yes

Marissa Hall Yes

Victoria Hardie No

Moona Hasan Yes

Alyson Hellyer Yes

Freddy Herrera Yes

Fiona Holland Yes

Martyn Jones Yes

Michael Kallee Yes

Khaga Kandel Yes

Bibek Luitel Yes

Robin Malla Yes

Charles Mascarenhas Yes

Tammy May Yes

Christine Meager Yes

Jainil Modi No

Kian Mu Yes

Giang Ngo Yes

Helen Pakas Yes

Jose Pena Yes

Barbara Piper Yes

Anna Plows Yes

Tuula Rintala Yes

Linda Robinson Yes

Paul Saint James Yes

Sumit Salhotra Yes

Lara Satchell Yes

Md Shamsuzzoha Yes

Baljinder Singh Yes

Dianne Sjoberg Yes

Cheryl Sorrell Yes

Thomas Sung Hong Yes

Tui Tane Yes

Xiao Teng Yes

Sekson Thinathin Yes

Tashi Wangchuck Yes

Robert Wilkey Yes

Wen Yang Yes

33 s 340 Taking adverse action against an employee for a prohibited reason Moona Hasan Yes

34 s 357 Representing to employees that the contract under which they were, or were to be, employed was a contract for services under which they were to be engaged as independent contractors Marco Diaz Yes

Andrea Grigoletto Yes

Marissa Hall Yes

Moona Hasan Yes

Khaga Kandel Yes

Robin Malla Yes

Charles Mascarenhas Yes

Christine Meager Yes

Jose Pena Yes

35 s 535 Failing to keep proper employee records of the kind prescribed by the Fair Work Regulations 1999 (Cth) in relation to each employee All 51 employees Yes

36 s 536 Failing to provide pay slips to employees within one working day of paying amounts to the employees in relation to the performance of work. Wendy Bong Yes

Aisling Dunn Yes

Moona Hasan Yes

Khaga Kandel Yes

Bibek Luitel Yes

Charles Mascarenhas Yes

Helen Pakas Yes

Jose Pena Yes

Barbara Piper Yes

Xiao Teng Yes

Wen Yang Yes

Rosario Pucci

No. Section Allegation Employee(s) Proved?

1 s 44 Failing to pay employees for periods of annual leave as prescribed by s 90(1) of the FW Act Barry Dowling No

Robert Wilkey Yes

2 s 44 Failing to pay employees on termination the amounts that would have been payable in respect of their accrued but untaken annual leave, had they taken the annual leave, as prescribed by 90(2) of the FW Act Fiona Holland Yes

Lara Satchell No

Robert Wilkey No

3 s 44 Failing to pay employees the basic periodic rate of pay for a period of personal leave as prescribed by s 99 of the FW Act Linda Robinson No

4 s 44 Failing to pay employees in respect of public holidays or part public holidays for which the employees were absent as prescribed by s 116 of the FW Act Linda Robinson No

5 s 44 Failing to give employees written notice of termination as prescribed by s 117(1) of the FW Act Lara Satchell Yes

Robert Wilkey No

6 s 44 Failing to pay employees as prescribed by s 117(2) of the FW Act when their employment was terminated without sufficient notice Lara Satchell Yes

7 s 45 Failing to pay an employee at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 of the Cleaning Services Award Abraham Arguello Yes

8 s 45 Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Modern Award Christine Meager Yes

Aisling Dunn No

Moona Hasan No

Md Shamsuzzoha Yes

9 s 45 Failing to make superannuation contributions for the benefit of administrative employees in accordance with cl 24.2 of the Clerks Modern Award Christine Meager Yes

Moona Hasan No

10 s 45 Failing to pay overtime to administrative employees as prescribed by cl 27.1 of the Clerks Modern Award Lara Satchell Yes

Md Shamsuzzoha No

12 s 45 Failing to give written agreements on patterns of work to part-time cleaning employees as prescribed by cl 12.4(a) of the Cleaning Services Award Alfonso Alcuitas Yes

13 s 45 Failing to pay a 15% allowance to part-time cleaning employees as prescribed by cl 12.4(b) of the Cleaning Services Award Anna Plows Yes

14 s 45 Failing to pay cleaning employees the broken shift allowance prescribed by cl 17.1 of the Cleaning Services Award None

16 s 45 Failing to pay Anna Plows for her travel time as prescribed by cl 17.10 of the Cleaning Services Award Anna Plows No

17 & 18 s 45 Failing to pay employees on a weekly or fortnightly basis and failing to pay employees left waiting, as prescribed by cll 20.2 and 20.3 of the Cleaning Services Award Paul Bacon No

Wendy Bong Yes

Marco Diaz Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Andrea Grigoletto Yes

Fiona Holland Yes

Charles Mascarenhas Yes

Kian Mu Yes

Anna Plows Yes

Thomas Sung Hong Yes

Tui Tane Yes

Xiao Teng Yes

Sekson Thinathin Yes

19 s 45 Failing to make superannuation contributions for the benefit of cleaning employees as required by cl 23.2 of the Cleaning Services Award Alfonso Alcuitas Yes

Marco Diaz Yes

Andrea Grigoletto Yes

Khaga Kandel Yes

Robin Malla Yes

Charles Mascarenhas Yes

Jose Pena Yes

Thomas Sung Hong Yes

22 s 45 Failing to pay cleaners penalty rates for early morning, afternoon and non-permanent night shift as prescribed by cl 27.1(a) of the Cleaning Services Award Alfonso Alcuitas Yes

Jessica Alvarado Palma No

Wendy Bong Yes

Angela Bustos Alvarado No

Mariana De Queiroz Yes

Fawaz El Rahman Yes

Andrea Grigoletto Yes

Alyson Hellyer No

Fiona Holland Yes

Michael Kallee Yes

Bibek Luitel Yes

Robin Malla Yes

Charles Mascarenhas No

Tammy May No

Kian Mu Yes

Helen Pakas Yes

Jose Pena Yes

Barbara Piper Yes

Anna Plows Yes

Tuula Rintala Yes

Sumit Salhotra Yes

Dianne Sjoberg Yes

Cheryl Sorrell Yes

Thomas Sung Hong Yes

Tui Tane No

Xiao Teng Yes

Sekson Thinathin Yes

Wen Yang Yes

23 s 45 Failing to pay cleaning employees penalty rates for permanent night shift as prescribed by cl 27.1(b) of the Cleaning Services Award Alfonso Alcuitas Yes

24 s 45 Failing to pay cleaning employees penalty rates for working between midnight Friday and midnight Saturday as prescribed by cl 27.2(a) of the Cleaning Services Award Alfonso Alcuitas Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Andrea Grigoletto No

Alyson Hellyer Yes

Freddy Herrera Yes

Fiona Holland Yes

Robin Malla Yes

Charles Mascarenhas Yes

Tammy May Yes

Kian Mu Yes

Anna Plows Yes

Tuula Rintala Yes

Linda Robinson No

Sumit Salhotra Yes

Baljinder Singh Yes

Thomas Sung Hong Yes

Tui Tane Yes

Sekson Thinathin Yes

Robert Wilkey Yes

Wen Yang Yes

25 s 45 Failing to pay cleaning employees penalty rates for working between midnight Saturday and midnight Sunday as prescribed by cl 27.2(b) of the Cleaning Services Award Alfonso Alcuitas Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Fawaz El Rahman Yes

Alyson Hellyer Yes

Fiona Holland Yes

Michael Kallee Yes

Khaga Kandel Yes

Robin Malla Yes

Tammy May Yes

Kian Mu Yes

Giang Ngo Yes

Helen Pakas Yes

Barbara Piper Yes

Anna Plows Yes

Tuula Rintala Yes

Linda Robinson No

Sumit Salhotra Yes

Baljinder Singh Yes

Sekson Thinathin Yes

Robert Wilkey Yes

Wen Yang Yes

26 s 45 Failing to pay cleaning employees penalty rates for working on public holidays as prescribed by cl 27.3 of the Cleaning Services Award Fawaz El Rahman No

27 s 45 Failing to pay cleaning employees penalty rates for overtime worked between midnight Sunday and midnight Saturday as prescribed by cl 28.2 of the Cleaning Services Award Alfonso Alcuitas Yes

Fawaz El Rahman Yes

28 s 45 Failing to pay cleaning employees penalty rates for overtime worked on a Sunday as prescribed by cl 28.3 of the Cleaning Services Award Alfonso Alcuitas Yes

Fawaz El Rahman Yes

29 s 45 Failing to pay cleaning employees a penalty rate for overtime worked on a public holiday as prescribed by cl 28.4 of the Cleaning Services Award None

30 s 45 Failing to pay cleaning employees annual leave loading as prescribed by cl 29.4 of the Cleaning Services Award for periods of annual leave taken Robert Wilkey Yes

31 s 293
Failing to pay award/agreement free employees the national minimum wage
Martyn Jones Yes

Paul Saint James No

32 s 323 Failing to pay employees in full and in money Alfonso Alcuitas Yes

Jessica Alvarado Palma Yes

Abraham Arguello Yes

Paul Bacon Yes

Wendy Bong Yes

Angela Bustos Alvarado Yes

Mariana De Queiroz Yes

Marco Diaz Yes

Rangana Dissanayake Yes

Barry Dowling Yes

Aisling Dunn Yes

Fawaz El Rahman Yes

Andrea Grigoletto Yes

Moona Hasan Yes

Alyson Hellyer Yes

Freddy Herrera Yes

Fiona Holland Yes

Martyn Jones Yes

Michael Kallee Yes

Khaga Kandel Yes

Bibek Luitel Yes

Robin Malla Yes

Charles Mascarenhas Yes

Tammy May Yes

Christine Meager Yes

Kian Mu Yes

Giang Ngo Yes

Helen Pakas Yes

Jose Pena Yes

Barbara Piper Yes

Anna Plows Yes

Tuula Rintala Yes

Linda Robinson Yes

Paul Saint James Yes

Sumit Salhotra Yes

Lara Satchell Yes

Md Shamsuzzoha Yes

Baljinder Singh Yes

Dianne Sjoberg Yes

Cheryl Sorrell Yes

Thomas Sung Hong Yes

Tui Tane Yes

Xiao Teng Yes

Sekson Thinathin Yes

Robert Wilkey Yes

Wen Yang Yes

34 s 357 Representing to employees that the contract under which they were, or were to be, employed was a contract for services under which they were to be engaged as independent contractors Marco Diaz Yes

Andrea Grigoletto Yes

Marissa Hall Yes

Moona Hasan Yes

Khaga Kandel Yes

Robin Malla Yes

Charles Mascarenhas Yes

Christine Meager Yes

Jose Pena Yes

35 s 535 Failing to keep proper employee records of the kind prescribed by the Fair Work Regulations 1999 (Cth) in relation to each employee All 51 employees Yes

36 s 536 Failing to provide pay slips to employees within one working day of paying amounts to the employees in relation to the performance of work. Wendy Bong Yes

Aisling Dunn Yes

Moona Hasan Yes

Khaga Kandel Yes

Bibek Luitel Yes

Charles Mascarenhas Yes

Helen Pakas Yes

Jose Pena Yes

Barbara Piper Yes

Xiao Teng Yes

Wen Yang Yes

File number:	NSD 659 of 2014
Judge:	KATZMANN J
Date of judgment:	26 August 2016
Catchwords:	INDUSTRIAL LAW — alleged contraventions of Fair Work Act 2009 (Cth) — whether individuals in question employees or subcontractors — whether first respondent true employer of employees — underpayment of statutory and award entitlements — adverse action — false representations — failure to keep proper records — failure to provide pay slips — accessorial liability
Legislation:	A New Tax System (Australian Business Number) Act 1999 (Cth) s 8 A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 9‑20 Corporations Act 2001 (Cth), ss 205B, 206A, 206B Evidence Act 1995 (Cth), ss 160, 161, 163 Fair Work Act 2009 (Cth), ss 12, 14, 27, 28, 45, 61, 86, 87, 90, 95, 96, 97, 99, 107, 115, 116, 117, 123, 125, 293, 323, 324, 325, 340, 341, 342, 357, 360, 361, 535, 536, 539, 546, 550, 564, 570, 681, 687, 701, 793 Federal Court of Australia Act 1976 (Cth), ss 21, 22, 23, 37M, 37N Superannuation Guarantee (Administration) Act 1992 (Cth), ss 3, 16, 17, 19, 23, 32C, 32F Superannuation Guarantee (Administration) Amendment Act 2012 (Cth) Superannuation Guarantee Charge Act 1992 (Cth), ss 5, 6 Fair Work Regulations 2009 (Cth), regs 3.33, 3.34, 3.36, 3.37, 3.46 Federal Court Rules 2011 (Cth), rr 1.32, 1.41, 30.21 Holidays Act 1910 (SA), s 3, Sch 2 Holidays Act 1958 (ACT), s 3 Holidays Act 1983 (Qld), s 2, Sch Public and Bank Holidays Act 1972 (WA), s 5, Sch 2 Public Holidays Act 1993 (Vic), s 6 Public Holidays Act 2010 (NSW), s 4
Cases cited:	ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 178 FLR 1 AHB v NSW Trustee and Guardian [2014] NSWCA 40 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 Commissioner v Giraffe World Australia Pty Ltd (No 2) (1999) 95 FCR 302 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149 Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 164 IR 299 Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17 Damevski v Giudice (2003) 133 FCR 438 Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 256 CLR 137 Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174 Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Giorgianni v The Queen (1985) 156 CLR 473 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 Hamilton v Whitehead (1988) 166 CLR 121 Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 214 FCR 82 Potter v Fair Work Ombudsman [2014] FCA 187 Qantas Airways Ltd v Transports Workers’ Union of Australia [2011] FCA 470; 280 ALR 503 Reid v Camphill Engravers [1990] ICR 435 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Vines v Djordjevitch (1955) 91 CLR 512 Yorke v Lucas (1985) 158 CLR 661 Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; 293 ALR 537)
Date of hearing:	8, 9 and 10 December 2015
Date of last submissions:	31 May 2016
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment and Industrial Relations
Category:	Catchwords
Number of paragraphs:	1143
Counsel for the Applicant:	Mr Y Shariff
Solicitor for the Applicant:	Fair Work Ombudsman
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	The Second Respondent did not appear
Counsel for the Third Respondent:	The Third Respondent did not appear
Counsel for the Fourth Respondent:	The Fourth Respondent did not appear

Table of Corrections
1 June 2017	In declaration 1.2, the number “31” has been substituted for the number “32”.
1 June 2017	In declaration 1.3, “s 99” has been substituted for “s 97”.
1 June 2017	In declaration 2.15, the number “21” has been substituted for the number “23”.
1 June 2017	In declaration 2.16, the number “17” has been substituted for the number “19”.
1 June 2017	In declaration 2.19, “six” has been substituted for “seven”.
1 June 2017	In declaration 3, the word “free” has been inserted after the words “award/agreement”.
1 June 2017	In declaration 4, the number “49” has been substituted for the number “50”.
1 June 2017	In declaration 10.4, “one” has been substituted for “two”.
1 June 2017	In declaration 10.12, “eight” has been substituted for the number “11”.
1 June 2017	In declaration 10.16, the number “21” has been substituted for the number “23”.
1 June 2017	In declaration 10.23, “51 employees” has been substituted for “one employee”.
1 June 2017	In paragraph 32, “31–36” has been substituted for “31–35”.
1 June 2017	In paragraph 33, the following subparagraph, which was inadvertently removed, has be re-inserted: “False representations (34) in contravention of s 357(1) of the FW Act, representations were made to certain employees that they were engaged, or would be engaged, under a contract for services under which they were performing, or would perform, work as an independent contractor, when they were in fact and in law engaged and worked as employees under contracts of employment”.
1 June 2017	In paragraph 33, subparagraph (3), paragraph 995, and the third row of each of the two tables in Annexure B, “s 99” has been substituted for “s 97”.
1 June 2017	In paragraph 268, “Juliana Botero Hernandez” has been substituted for “Jessica Alvarado Palma”.
1 June 2017	In paragraph 269, “Jessica Alvarado Palma” has been substituted for “Juliana Botero Hernandez”.
1 June 2017	In paragraph 339, first sentence, “2012” has been substituted for “2013”
1 June 2017	In paragraph 394, first sentence, the words “dated 12 January 2013” have been replaced with the phrase “received by the Ombudsman on 14 February 2013”.
1 June 2017	In paragraphs 399 and 405, “s 117(2)” has been substituted for “s 90(2)”.
1 June 2017	In paragraph 706, “cl 27.1(b)” has been substituted for “cl 27.2(b)”.
1 June 2017	In paragraph 762, the words “save for one payment of $500” have been inserted after “18 January 2013”.
1 June 2017	In paragraph 767, the third sentence has been deleted.
1 June 2017	In paragraph 775, second sentence, “Boxing Day 2011” has been substituted for “Boxing Day 2012”.
1 June 2017	In paragraph 812, first sentence, “5 April 2012” has been substituted for “15 April 2012”.
1 June 2017	In paragraph 879, penultimate sentence, “2012” has been substituted for “2013”, and “$15.96” for “16.37”.
1 June 2017	In paragraph 986, “s 90(2)” has been substituted for “s 87(1)”.
1 June 2017	Throughout the judgment, in all references to Wendy Bong the male pronoun has been substituted for the female pronoun.

JUDGE:	KATZMANN J
DATE OF ORDER:	26 AUGUST 2016

No.	Name	Award
1	Alfonso Alcuitas	Cleaning Services Award
2	Jessica Alvarado Palma	Cleaning Services Award
3	Abraham Arguello	Cleaning Services Award
4	Paul Bacon	Cleaning Services Award
5	Wendy Bong	Cleaning Services Award
6	Juliana Botero Hernandez	Cleaning Services Award
7	Angela Bustos Alvarado	Cleaning Services Award
8	Mariana De Queiroz	Cleaning Services Award
9	Marco Diaz	Cleaning Services Award
10	Rangana Dissanayake	Cleaning Services Award
11	Barry Dowling	Cleaning Services Award
12	Aisling Dunn	Clerks Modern Award
13	Fawaz El Rahman	Cleaning Services Award
14	Andrea Grigoletto	Cleaning Services Award
15	Marissa Hall	Cleaning Services Award
16	Victoria Hardie	Award Free
17	Moona Hasan	Clerks Modern Award
18	Alyson Hellyer	Cleaning Services Award
19	Freddy Herrera	Cleaning Services Award
20	Fiona Holland	Cleaning Services Award
21	Martyn Jones	Award Free
22	Michael Kallee	Cleaning Services Award
23	Khaga Kandel	Cleaning Services Award
24	Bibek Luitel	Cleaning Services Award
25	Robin Malla	Cleaning Services Award
26	Charles Mascarenhas	Cleaning Services Award
27	Tammy May	Cleaning Services Award
28	Christine Meager	Clerks Modern Award
29	Jainil Modi	Clerks Modern Award
30	Kian Mu	Cleaning Services Award
31	Giang Ngo	Cleaning Services Award
32	Helen Pakas	Cleaning Services Award
33	Jose Pena	Cleaning Services Award
34	Barbara Piper	Cleaning Services Award
35	Anna Plows	Cleaning Services Award
36	Tuula Rintala	Cleaning Services Award
37	Linda Robinson	Cleaning Services Award
38	Paul Saint James	Award Free
39	Sumit Salhotra	Cleaning Services Award
40	Lara Satchell	Clerks Modern Award
41	Md Shamsuzzoha	Clerks Modern Award
42	Baljinder Singh	Cleaning Services Award
43	Dianne Sjoberg	Cleaning Services Award
44	Cheryl Sorrell	Cleaning Services Award
45	Thomas Sung Hong	Cleaning Services Award
46	Tui Tane	Cleaning Services Award
47	Xiao Teng	Cleaning Services Award
48	Sekson Thinathin	Cleaning Services Award
49	Tashi Wangchuck	Cleaning Services Award
50	Robert Wilkey	Cleaning Services Award
51	Wen Yang	Cleaning Services Award

No	Section	Allegation	Employee(s)	Proved?
1	s 44	Failing to pay employees for periods of annual leave as prescribed by s 90(1) of the FW Act	Barry Dowling	No
			Tammy May	Yes
			Helen Pakas	No
			Robert Wilkey	Yes
2	s 44	Failing to pay employees on termination the amounts that would have been payable in respect of their accrued but untaken annual leave, had they taken the annual leave, as prescribed by 90(2) of the FW Act	Alfonso Alcuitas	Yes
			Jessica Alvarado Palma	No
			Abraham Arguello	Yes
			Paul Bacon	Yes
			Wendy Bong	No
			Juliana Botero Hernandez	Yes
			Angela Bustos Alvarado	No
			Marco Diaz	No
			Rangana Dissanayake	Yes
			Barry Dowling	Yes
			Aisling Dunn	No
			Fawaz El Rahman	Yes
			Andrea Grigoletto	No
			Marissa Hall	Yes
			Moona Hasan	No
			Alyson Hellyer	No
			Freddy Herrera	Yes
			Fiona Holland	Yes
			Michael Kallee	Yes
			Khaga Kandel	No
			Bibek Luitel	Yes
			Robin Malla	No
			Charles Mascarenhas	Yes
			Tammy May	Yes
			Christine Meager	Yes
			Jainil Modi	No
			Kian Mu	Yes
			Giang Ngo	No
			Jose Pena	Yes
			Barbara Piper	Yes
			Anna Plows	No
			Mariana De Queiroz	Yes
			Tuula Rintala	Yes
			Linda Robinson	Yes
			Paul Saint James	No
			Sumit Salhotra	Yes
			Lara Satchell	No
			Md Shamsuzzoha	No
			Baljinder Singh	Yes
			Dianne Sjoberg	Yes
			Cheryl Sorrell	Yes
			Thomas Sung Hong	Yes
			Tui Tane	Yes
			Xiao Teng	Yes
			Sekson Thinathin	Yes
			Tashi Wangchuck	Yes
			Robert Wilkey	Yes
			Wen Yang	Yes
3	s 44	Failing to pay employees the basic periodic rate of pay for a period of personal leave as prescribed by s 99 of the FW Act	Barry Dowling	No
			Anna Plows	No
			Linda Robinson	Yes
			Lara Satchell	No
4	s 44	Failing to pay employees in respect of public holidays or part public holidays for which the employees were absent as prescribed by s 116 of the FW Act	Jessica Alvarado Palma	Yes
			Angela Bustos Alvarado	Yes
			Marco Diaz	No
			Barry Dowling	No
			Marissa Hall	No
			Fiona Holland	No
			Michael Kallee	No
			Robin Malla	Yes
			Helen Pakas	Yes
			Dianne Sjoberg	No
			Cheryl Sorrell	No
			Thomas Sung Hong	Yes
			Xiao Teng	Yes
5	s 44	Failing to give employees written notice of termination as prescribed by s 117(1) of the FW Act	Angela Bustos Alvarado	Yes
			Lara Satchell	Yes
			Wen Yang	Yes
			Xiao Teng	Yes

6	s 44	Failing to pay employees as prescribed by s 117(2) of the FW Act when their employment was terminated without sufficient notice	Abraham Arguello	Yes
			Wendy Bong	Yes
			Angela Bustos Alvarado	Yes
			Rangana Dissanayake	Yes
			Barbara Piper	Yes
			Linda Robinson	Yes
			Lara Satchell	Yes
			Xiao Teng	Yes
			Robert Wilkey	Yes
			Wen Yang	Yes
7	s 45	Failing to pay an employee at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 of the Cleaning Services Award	Abraham Arguello	Yes
8	s 45	Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Modern Award	Aisling Dunn	Yes
			Moona Hasan	Yes
			Christine Meager	Yes
			Jainil Modi	No
			Md Shamsuzzoha	Yes
9	s 45	Failing to make superannuation contributions for the benefit of administrative employees in accordance with cl 24.2 of the Clerks Modern Award	Aisling Dunn	Yes
			Moona Hasan	Yes
			Christine Meager	Yes
			Jainil Modi	No
			Lara Satchell	Yes
			Md Shamsuzzoha	Yes
10	s 45	Failing to pay overtime to administrative employees as prescribed by cl 27.1 of the Clerks Modern Award	Lara Satchell	Yes
10	s 45		Md Shamsuzzoha	Yes
11	s 45	Failing to pay annual leave loading to administrative employees as prescribed by cl 29.3 of the Clerks Modern Award	Aisling Dunn	No
			Moona Hasan	No
			Christine Meager	No
			Jainil Modi	No
			Lara Satchell	No
			Md Shamsuzzoha	No
12	s 45	Failing to give written agreements on patterns of work to part-time cleaning employees as prescribed by cl 12.4(a) of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Paul Bacon	Yes
			Wendy Bong	No
			Mariana De Queiroz	Yes
			Barry Dowling	Yes
			Fawaz El Rahman	Yes
			Marissa Hall	Yes
			Alyson Hellyer	Yes
			Freddy Herrera	Yes
			Fiona Holland	Yes
			Bibek Luitel	No
			Robin Malla	Yes
			Tammy May	Yes
			Kian Mu	Yes
			Helen Pakas	Yes
			Jose Pena	Yes
			Barbara Piper	Yes
			Anna Plows	Yes
			Thomas Sung Hong	Yes
			Tui Tane	Yes
			Xiao Teng	Yes
			Sekson Thinathin	Yes
			Tashi Wangchuck	Yes
13	s 45	Failing to pay a 15% allowance to part-time cleaning employees as prescribed by cl 12.4(b) of the Cleaning Services Award	Paul Bacon	Yes
			Juliana Botero Hernandez	Yes
			Angela Bustos Alvarado	Yes
			Mariana De Queiroz	Yes
			Marco Diaz	Yes
			Fawaz El Rahman	Yes
			Marissa Hall	Yes
			Freddy Herrera	Yes
			Khaga Kandel	No
			Bibek Luitel	No
			Tammy May	Yes
			Giang Ngo	No
			Helen Pakas	No
			Barbara Piper	Yes
			Anna Plows	Yes
			Linda Robinson	No
			Dianne Sjoberg	Yes
			Cheryl Sorrell	Yes
			Tui Tane	Yes
			Tashi Wangchuck	Yes
14	s 45	Failing to pay cleaning employees the broken shift allowance prescribed by cl 17.1 of the Cleaning Services Award	Alfonso Alcuitas	No
			Angela Bustos Alvarado	Yes
			Barry Dowling	No
			Fawaz El Rahman	Yes
			Kian Mu	No
			Helen Pakas	Yes
			Barbara Piper	No
			Baljinder Singh	No
			Dianne Sjoberg	Yes
			Cheryl Sorrell	Yes
			Xiao Teng	Yes
15	s 45	Failing to pay Anna Plows a motor vehicle allowance prescribed by cl 17.4 of the Cleaning Services Award	Anna Plows	No
16	s 45	Failing to pay Anna Plows for her travel time as prescribed by cl 17.10 of the Cleaning Services Award	Anna Plows	Yes
17 & 18	s 45	Failing to pay employees on a weekly or fortnightly basis and failing to pay employees left waiting, as prescribed by cll 20.2 and 20.3 of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Paul Bacon	Yes
			Wendy Bong	Yes
			Mariana De Queiroz	Yes
			Marco Diaz	Yes
			Rangana Dissanayake	Yes
			Barry Dowling	Yes
			Fawaz El Rahman	Yes
			Andrea Grigoletto	Yes
			Marissa Hall	Yes
			Freddy Herrera	Yes
			Fiona Holland	Yes
			Khaga Kandel	Yes
			Bibek Luitel	Yes
			Robin Malla	Yes
			Charles Mascarenhas	Yes
			Tammy May	Yes
			Kian Mu	Yes
			Giang Ngo	Yes
			Helen Pakas	Yes
			Barbara Piper	Yes
			Anna Plows	Yes
			Linda Robinson	Yes
			Thomas Sung Hong	Yes
			Tui Tane	Yes
			Xiao Teng	Yes
			Sekson Thinathin	Yes
			Tashi Wangchuck	Yes
			Wen Yang	Yes
19	s 45	Failing to make superannuation contributions for the benefit of cleaning employees as required by cl 23.2 of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Jessica Alvarado Palma	Yes
			Abraham Arguello	No
			Paul Bacon	Yes
			Angela Bustos Alvarado	No
			Mariana De Queiroz	No
			Marco Diaz	Yes
			Rangana Dissanayake	No
			Barry Dowling	Yes
			Fawaz El Rahman	No
			Andrea Grigoletto	Yes
			Alyson Hellyer	No
			Freddy Herrera	No
			Fiona Holland	Yes
			Michael Kallee	No
			Khaga Kandel	Yes
			Bibek Luitel	Yes
			Robin Malla	Yes
			Charles Mascarenhas	Yes
			Tammy May	Yes
			Kian Mu	Yes
			Helen Pakas	Yes
			Jose Pena	Yes
			Anna Plows	Yes
			Tuula Rintala	No
			Linda Robinson	Yes
			Sumit Salhotra	No
			Dianne Sjoberg	No
			Cheryl Sorrell	No
			Thomas Sung Hong	Yes
			Tui Tane	No
			Xiao Teng	Yes
			Sekson Thinathin	Yes
			Tashi Wangchuck	Yes
			Robert Wilkey	Yes
20	s 45	Failing to pay cleaning employees for the minimum engagement period, as required by cl 24.2(b) of the Cleaning Services Award	Alfonso Alcuitas	No
			Fawaz El Rahman	No
			Robin Malla	No
			Tammy May	No
			Helen Pakas	No
			Baljinder Singh	No
			Dianne Sjoberg	No
			Cheryl Sorrell	No
			Tui Tane	No
			Sekson Thinathin	No
21	45	Requiring cleaning employees to work ordinary hours on more than five days per week, contrary to cl 24.2(a) of the Cleaning Services Award	Alfonso Alcuitas	No
			Rangana Dissanayake	No
			Barry Dowling	No
			Fawaz El Rahman	No
			Freddy Herrera	No
			Bibek Luitel	No
			Tammy May	No
			Kian Mu	No
			Jose Pena	No
			Linda Robinson	No
			Thomas Sung Hong	No
			Sekson Thinathin	No
22	s 45	Failing to pay cleaners penalty rates for early morning, afternoon and non-permanent night shift as prescribed by cl 27.1(a) of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Jessica Alvarado Palma	No
			Wendy Bong	Yes
			Angela Bustos Alvarado	No
			Mariana De Queiroz	Yes
			Fawaz El Rahman	Yes
			Andrea Grigoletto	Yes
			Alyson Hellyer	No
			Fiona Holland	Yes
			Michael Kallee	Yes
			Bibek Luitel	Yes
			Robin Malla	Yes
			Charles Mascarenhas	No
			Tammy May	No
			Kian Mu	Yes
			Helen Pakas	Yes
			Jose Pena	Yes
			Barbara Piper	Yes
			Anna Plows	Yes
			Tuula Rintala	Yes
			Sumit Salhotra	Yes
			Dianne Sjoberg	Yes
			Cheryl Sorrell	Yes
			Thomas Sung Hong	Yes
			Tui Tane	No
			Xiao Teng	Yes
			Sekson Thinathin	Yes
			Wen Yang	Yes
23	s 45	Failing to pay cleaning employees penalty rates for permanent night shift as prescribed by cl 27.1(b) of the Cleaning Services Award	Rangana Dissanayake	Yes
			Barry Dowling	Yes
			Alyson Hellyer	Yes
			Freddy Herrera	Yes
			Baljinder Singh	No
			Thomas Sung Hong	Yes
			Robert Wilkey	Yes
24	s 45	Failing to pay cleaning employees penalty rates for working between midnight Friday and midnight Saturday as prescribed by cl 27.2(a) of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Angela Bustos Alvarado	Yes
			Mariana De Queiroz	Yes
			Rangana Dissanayake	Yes
			Barry Dowling	Yes
			Fawaz El Rahman	Yes
			Andrea Grigoletto	No
			Alyson Hellyer	Yes
			Freddy Herrera	Yes
			Fiona Holland	Yes
			Robin Malla	Yes
			Charles Mascarenhas	Yes
			Tammy May	Yes
			Kian Mu	Yes
			Anna Plows	Yes
			Tuula Rintala	Yes
			Linda Robinson	No
			Sumit Salhotra	Yes
			Baljinder Singh	Yes
			Thomas Sung Hong	Yes
			Tui Tane	Yes
			Sekson Thinathin	Yes
			Robert Wilkey	Yes
			Wen Yang	Yes
25	s 45	Failing to pay cleaning employees penalty rates for working between midnight Saturday and midnight Sunday as prescribed by cl 27.2(b) of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Angela Bustos Alvarado	Yes
			Mariana De Queiroz	Yes
			Rangana Dissanayake	Yes
			Barry Dowling	Yes
			Fawaz El Rahman	Yes
			Alyson Hellyer	Yes
			Fiona Holland	Yes
			Michael Kallee	Yes
			Khaga Kandel	Yes
			Robin Malla	Yes
			Tammy May	Yes
			Kian Mu	Yes
			Giang Ngo	Yes
			Helen Pakas	Yes
			Barbara Piper	Yes
			Anna Plows	Yes
			Tuula Rintala	Yes
			Linda Robinson	No
			Sumit Salhotra	Yes
			Baljinder Singh	Yes
			Sekson Thinathin	Yes
			Robert Wilkey	Yes
			Wen Yang	Yes
26	s 45	Failing to pay cleaning employees penalty rates for working on public holidays as prescribed by cl 27.3 of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Jessica Alvarado Palma	Yes
			Angela Bustos Alvarado	No
			Mariana De Queiroz	Yes
			Marco Diaz	Yes
			Barry Dowling	Yes
			Fawaz El Rahman	Yes
			Andrea Grigoletto	No
			Alyson Hellyer	Yes
			Freddy Herrera	Yes
			Khaga Kandel	Yes
			Charles Mascarenhas	Yes
			Tammy May	Yes
			Kian Mu	Yes
			Helen Pakas	No
			Anna Plows	Yes
			Linda Robinson	Yes
			Baljinder Singh	Yes
			Thomas Sung Hong	Yes
			Tui Tane	Yes
			Xiao Teng	No
			Sekson Thinathin	Yes
			Robert Wilkey	Yes
27	s 45	Failing to pay cleaning employees penalty rates for overtime worked between midnight Sunday and midnight Saturday as prescribed by cl 28.2 of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Jessica Alvarado Palma	Yes
			Angela Bustos Alvarado	Yes
			Mariana De Queiroz	Yes
			Rangana Dissanayake	Yes
			Barry Dowling	Yes
			Fawaz El Rahman	Yes
			Alyson Hellyer	Yes
			Freddy Herrera	Yes
			Michael Kallee	No
			Khaga Kandel	Yes
			Bibek Luitel	No
			Robin Malla	Yes
			Charles Mascarenhas	No
			Tammy May	Yes
			Kian Mu	Yes
			Giang Ngo	Yes
			Helen Pakas	Yes
			Jose Pena	Yes
			Anna Plows	Yes
			Tuula Rintala	Yes
			Linda Robinson	No
			Sumit Salhotra	Yes
			Dianne Sjoberg	Yes
			Thomas Sung Hong	Yes
			Tui Tane	Yes
			Xiao Teng	No
			Sekson Thinathin	Yes
			Tashi Wangchuck	Yes
			Robert Wilkey	Yes
28	s 45	Failing to pay cleaning employees penalty rates for overtime worked on a Sunday as prescribed by cl 28.3 of the Cleaning Services Award	Alfonso Alcuitas	Yes
			Jessica Alvarado Palma	Yes
			Angela Bustos Alvarado	Yes
			Mariana De Queiroz	Yes
			Rangana Dissanayake	Yes
			Barry Dowling	Yes
			Fawaz El Rahman	Yes
			Alyson Hellyer	Yes
			Freddy Herrera	Yes
			Fiona Holland	Yes
			Robin Malla	Yes
			Charles Mascarenhas	No
			Tammy May	Yes
			Kian Mu	Yes
			Helen Pakas	Yes
			Jose Pena	Yes
			Anna Plows	Yes
			Tuula Rintala	Yes
			Linda Robinson	No
			Sumit Salhotra	Yes
			Baljinder Singh	Yes
			Dianne Sjoberg	Yes
			Cheryl Sorrell	Yes
			Thomas Sung Hong	Yes
			Tui Tane	Yes
			Sekson Thinathin	Yes
			Robert Wilkey	Yes
29	s 45	Failing to pay cleaning employees a penalty rate for overtime worked on a public holiday as prescribed by cl 28.4 of the Cleaning Services Award	Barry Dowling	Yes
			Alyson Hellyer	Yes
			Khaga Kandel	Yes
			Tammy May	Yes
			Linda Robinson	Yes
			Thomas Sung Hong	Yes
			Robert Wilkey	Yes
30	s 45	Failing to pay cleaning employees annual leave loading as prescribed by cl 29.4 of the Cleaning Services Award for periods of annual leave taken	Alfonso Alcuitas	No
			Jessica Alvarado Palma	No
			Abraham Arguello	No
			Paul Bacon	No
			Wendy Bong	No
			Juliana Botero Hernandez	No
			Angela Bustos Alvarado	No
			Mariana De Queiroz	Yes
			Marco Diaz	No
			Rangana Dissanayake	No
			Barry Dowling	Yes
			Fawaz El Rahman	No
			Andrea Grigoletto	No
			Marissa Hall	No
			Alyson Hellyer	No
			Freddy Herrera	No
			Fiona Holland	No
			Michael Kallee	No
			Khaga Kandel	No
			Bibek Luitel	No
			Robin Malla	No
			Charles Mascarenhas	No
			Tammy May	Yes
			Kian Mu	No
			Giang Ngo	No
			Helen Pakas	Yes
			Jose Pena	No
			Barbara Piper	No
			Anna Plows	No
			Tuula Rintala	No
			Linda Robinson	No
			Sumit Salhotra	No
			Baljinder Singh	No
			Dianne Sjoberg	No
			Cheryl Sorrell	No
			Thomas Sung Hong	Yes
			Tui Tane	No
			Xiao Teng	No
			Sekson Thinathin	No
			Tashi Wangchuck	No
			Robert Wilkey	Yes
			Wen Yang	No
31	s 293	Failing to pay award/agreement free employees the national minimum wage	Victoria Hardie	No
			Martyn Jones	Yes
			Paul Saint James	Yes
32	s 323	Failing to pay employees in full and in money	Alfonso Alcuitas	Yes
			Jessica Alvarado Palma	Yes
			Abraham Arguello	Yes
			Paul Bacon	Yes
			Wendy Bong	Yes
			Juliana Botero Hernandez	Yes
			Angela Bustos Alvarado	Yes
			Mariana De Queiroz	Yes
			Marco Diaz	Yes
			Rangana Dissanayake	Yes
			Barry Dowling	Yes
			Aisling Dunn	Yes
			Fawaz El Rahman	Yes
			Andrea Grigoletto	Yes
			Marissa Hall	Yes
			Victoria Hardie	No
			Moona Hasan	Yes
			Alyson Hellyer	Yes
			Freddy Herrera	Yes
			Fiona Holland	Yes
			Martyn Jones	Yes
			Michael Kallee	Yes
			Khaga Kandel	Yes
			Bibek Luitel	Yes
			Robin Malla	Yes
			Charles Mascarenhas	Yes
			Tammy May	Yes
			Christine Meager	Yes
			Jainil Modi	No
			Kian Mu	Yes
			Giang Ngo	Yes
			Helen Pakas	Yes
			Jose Pena	Yes
			Barbara Piper	Yes
			Anna Plows	Yes
			Tuula Rintala	Yes
			Linda Robinson	Yes
			Paul Saint James	Yes
			Sumit Salhotra	Yes
			Lara Satchell	Yes
			Md Shamsuzzoha	Yes
			Baljinder Singh	Yes
			Dianne Sjoberg	Yes
			Cheryl Sorrell	Yes
			Thomas Sung Hong	Yes
			Tui Tane	Yes
			Xiao Teng	Yes
			Sekson Thinathin	Yes
			Tashi Wangchuck	Yes
			Robert Wilkey	Yes
			Wen Yang	Yes
33	s 340	Taking adverse action against an employee for a prohibited reason	Moona Hasan	Yes
34	s 357	Representing to employees that the contract under which they were, or were to be, employed was a contract for services under which they were to be engaged as independent contractors	Marco Diaz	Yes
			Andrea Grigoletto	Yes
			Marissa Hall	Yes
			Moona Hasan	Yes
			Khaga Kandel	Yes
			Robin Malla	Yes
			Charles Mascarenhas	Yes
			Christine Meager	Yes
			Jose Pena	Yes
35	s 535	Failing to keep proper employee records of the kind prescribed by the Fair Work Regulations 1999 (Cth) in relation to each employee	All 51 employees	Yes
36	s 536	Failing to provide pay slips to employees within one working day of paying amounts to the employees in relation to the performance of work.	Wendy Bong	Yes
			Aisling Dunn	Yes
			Moona Hasan	Yes
			Khaga Kandel	Yes
			Bibek Luitel	Yes
			Charles Mascarenhas	Yes
			Helen Pakas	Yes
			Jose Pena	Yes
			Barbara Piper	Yes
			Xiao Teng	Yes
			Wen Yang	Yes