Fair Work Ombudsman v Lovely Care Pty Ltd
[2019] FCCA 25
•10 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v LOVELY CARE PTY LTD & ANOR | [2019] FCCA 25 |
| Catchwords: INDUSTRIAL LAW – Ignorance of an award is a defence to an allegation of liability as an accessory to breaches of that award. |
| Legislation: Workplace Relations Act 1996, ss.167, 171, 182, 185, 208, 718, 719, 728, item 43 of sch.8 |
| Fair Work Ombudsman v Raying Holding Pty Ltd (No.2) (2017) 324 FLR 289 Potter v Fair Work Ombudsman [2014] FCA 187 Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | LOVELY CARE PTY LTD (ACN 119 847 362) |
| Second Respondent: | ELIZABETH BONILLA |
| File Number: | SYG 2407 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 17-19 November 2015 |
| Date of Last Submission: | 19 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 10 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Chin |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Respondents: | Mr J.H Pearce |
| Solicitors for the Respondents: | Williamson Legal |
THE COURT DECLARES THAT:
The second respondent was involved in the first respondent’s contraventions of the Workplace Relations Act 1996 (“WR Act”) and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”) as follows:
(a)s.182(1) of the WR Act by failing to pay Yan Wang the guaranteed rate of pay under the Australian Pay and Classification Scale derived from the Social and Community Services Employees (State) Award (“SACS Pay Scale”) for every hour worked during the period 8 October 2007 to 30 June 2009;
(b)s.185(2) of the WR Act by failing to pay Yan Wang the guaranteed casual loading contained in the SACS Pay Scale for every hour worked during the period 8 October 2007 to 30 June 2009;
(c)item 5 of sch.16 to the FW (TPCA) Act by failing to pay Yan Wang and Naim Samaan the guaranteed rate of pay under the SACS Pay Scale for every hour worked during the period 1 July 2009 to 31 December 2009; and
(d)item 5 of sch.16 to the FW (TPCA) Act by failing to pay Yan Wang and Naim Samaan the guaranteed casual loading contained in the SACS Pay Scale for every hour worked during the period 1 July 2009 to 31 December 2009.
THE COURT ORDERS THAT:
The matter be listed for directions on 1 February 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2407 of 2013
| FAIR WORK OMBUDSMAN |
Applicant
And
| LOVELY CARE PTY LTD (ACN 119 847 362) |
First Respondent
| ELIZABETH BONILLA |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The first respondent (“Lovely Care”) operates an emergency accommodation centre in Peakhurst called Elizabeth Cottage which provides emergency and respite care accommodation, as well as personal care and supervision of persons with a disability.
Mrs Yan Wang and Dr Naim Samaan (“Employees”) are former employees of Lovely Care. The parties have agreed that Lovely Care failed to pay the Employees less than their entitlements to minimum rates of pay and casual loading, as well as a sleepover allowance, in contravention of the Workplace Relations Act 1996 (“WR Act”), the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”) and the Fair Work Act 2009 (“FW Act”).
The second respondent (“Ms Bonilla”) was at all relevant times a director, secretary and shareholder of Lovely Care. Whilst the parties have agreed that Ms Bonilla was ultimately responsible for Lovely Care’s decisions in relation to the terms and conditions of the Employees’ employment, the extent of her liability remains in dispute.
These reasons are concerned with whether Ms Bonilla has liability as an accessory for Lovely Care’s admitted contraventions. In that regard, the applicant (“Ombudsman”) has alleged that Ms Bonilla was knowingly concerned in, or a party to, each of Lovely Care’s contraventions and so is to be taken as having similarly contravened the WR Act, the FW (TPCA) Act and the FW Act.
AGREED FACTS
A Statement of Agreed Facts and Issues was filed on 12 October 2015 and a Further Statement of Agreed Facts was filed on 16 November 2015. The parties agreed that Lovely Care had, in the ways identified, contravened the following provisions of the WR Act, the FW (TPCA) Act and the FW Act:
(a)subsection 182(1) of the WR Act by failing to pay Mrs Wang the guaranteed rate of pay under the SACS Pay Scale for every hour worked during the period 8 October 2007 to 30 June 2009;
(b)section 185(2) of the WR Act by failing to pay Mrs Wang the guaranteed casual loading contained in the SACS Pay Scale for every hour worked during the period 8 October 2007 to 30 June 2009;
(c)item 5 of Schedule 16 of the Transitional Act by failing to pay Mrs Wang and Dr Samaan the guaranteed rate of pay under the SACS Pay Scale for every hour worked during the period 1 July 2009 to 31 December 2009 (by continuation of section 182(1) of the WR Act);
(d)item 5 of Schedule 16 of the Transitional Act by failing to pay the Employees the guaranteed casual loading contained in the SACS Pay Scale for every hour worked during the period 1 July 2009 to 31 December 2009 (by continuation of section 185(2) of the WR Act);
(e)section 45 of the FW Act by failing to pay the minimum hourly rate of pay [to] the Employees in accordance with clause [A.2.3] of [the] Modern Award during the period 1 January 2010 to 19 July 2011;
(f)section 45 of the FW Act by failing to pay the minimum casual loading to the Employees in accordance with clause [A.5.2] of the Modern Award during the period 1 January 2010 to 19 July 2011;and
(g)section 45 of the FW Act by failing to pay the sleepover allowance to the Employees in accordance with clause 25.7 of the Modern Award during the period 1 January 2010 to 19 July 2011.
Additional relevant agreed facts are summarised below.
On 12 November 2015 Lovely Care was ordered to make compensatory payments to Mrs Wang and Dr Samaan.
The parties and employees
Mrs Wang and Dr Samaan were employed by Lovely Care on a casual basis from, respectively, 24 June 2006 to 15 July 2011 and 3 August 2009 to 19 July 2011. Each was employed as a “Disability Support Worker” at Elizabeth Cottage and performed duties which included:
a)assisting clients with dressing, showering and toileting;
b)administering medication to clients;
c)preparing and serving meals;
d)transporting clients to daily activities; and
e)cleaning the premises at Elizabeth Cottage.
Ms Bonilla was at all relevant times a director, secretary and shareholder of Lovely Care. It was agreed that she was the controlling mind of the company, was responsible for setting the Employees’ wages and was ultimately responsible for Lovely Care’s decisions in relation to the terms and conditions of the Employees’ employment and the payments made to them.
It was agreed that Lovely Care was the sole employer of the Employees at all relevant times.
Applicable legislation and industrial instruments
The parties agreed that at all relevant times:
a)prior to 1 July 2009, Lovely Care was bound in respect of Mrs Wang by the WR Act;
b)on and from 1 July 2009 to 31 December 2009, Lovely Care was bound in respect of the Employees by the WR Act as it continued to apply by reason of the FW (TPCA) Act; and
c)on and from 1 January 2010, Lovely Care was bound in respect of the Employees by the FW Act.
At all relevant times up to and including 31 December 2009:
a)Lovely Care was bound in respect of the Employees by the Australian Pay and Classification Scale (“SACS Pay Scale”) derived from the Social and Community Services Employees (State) Award (“SACS Award”); and
b)the Employees were classified within the Community Services Worker Grade 1 classification under the SACS Pay Scale.
It was also agreed that at all relevant times on and from 1 January 2010:
a)Lovely Care was bound in respect of the Employees by the Social, Community, Home Care and Disability Services Award 2010 (“Modern Award”); and
b)the Employees were classified within the Social and Community Services Employee Level 1 classification under cl.B.1.1 of the Modern Award.
Working hours and rates of pay
Ordinary hours
The Employees typically performed at least 15 ordinary hours of work per day between the hours of 6am and 9pm.
Lovely Care paid the following flat daily rates of pay for all ordinary hours worked which, based on a 15 hour work day, equated to the following hourly rates:
Period
Shift
Daily rate
Equivalent hourly rate
8 October 2007 to 7 August 2010
Weekdays
$200
$13.33
Saturdays
$250
$16.67
8 August 2010 to 19 July 2011
Weekdays
$208
$13.87
Saturdays
$260
$17.33
Overnight shifts
It was agreed that for the majority of their employment, the Employees were required to be at Elizabeth Cottage for overnight shifts, five to six times a week. This involved the Employees staying overnight at Elizabeth Cottage and then typically performing at least 15 hours of work per day between the hours of 6am and 9pm. When the Employees stayed overnight at Elizabeth Cottage, they were occasionally required to attend to clients during the night.
Additional hourly shifts
It was agreed that the Employees were sometimes required to work additional hourly shifts during which they performed personal care work for clients at Elizabeth Cottage and/or for clients in the community for which they were paid the following hourly rates:
Employee
Period
Hourly rate
Mrs Wang
8 October 2007 to 15 June 2008
$17.00
16 June 2008 to 7 August 2010
$17.50
8 August 2010 to 19 July 2011
$18.47
Dr Samaan
3 August 2009 to 7 August 2010
$17.76
8 August 2010 to 15 July 2011
$18.47
It was agreed that the Employees received the relevant daily rates for all hours worked between 6am and 9pm (referred to above at [15]) and only received hourly rates when required to work shifts additional to overnight shifts.
Minimum entitlements
Workplace Relations Act
The statutory basis for the following admissions is set out later in these reasons.
The parties agreed that from 8 October 2007 to 30 June 2009, Lovely Care was required by ss.182(1) and 185(2) of the WR Act to pay Mrs Wang a basic periodic rate of pay and casual loading at least equal to the guaranteed basic periodic rate of pay and casual loading under the SACS Pay Scale, being:
Period
Basic hourly rate
Casual loading of 15%
Casually loaded rate
8 October 2007 to 30 June 2008
$14.98
$2.247
$17.23
1 July 2008 to 30 September 2008
$15.44
$2.316
$17.76
1 October 2008 to 30 June 2009
$15.55
$2.332
$17.88
Fair Work (Transitional Provisions and Consequential Amendments) Act
During the period from 1 July 2009 to 31 December 2009, Lovely Care was required by item 5 of sch.16 to the FW (TPCA) Act to pay Mrs Wang and Dr Samaan a basic periodic rate of pay and casual loading at least equal to the guaranteed basic periodic rate of pay and casual loading under the SACS Pay Scale, being:
Period
Basic hourly rate
Casual loading of 15%
Casually loaded rate
1 July 2009 to 31 December 2009
$15.55
$2.332
$17.88
Fair Work Act
Minimum rates
The parties agreed that on and from 1 January 2010, Lovely Care was required by cls.A.2.3, A.4 and A.5.2 of sch.A to the Modern Award to pay the Employees no less than the following minimum hourly rates of pay and casual loading:
Period
Basic hourly rate
Casual loading of 15%
Casually loaded rate
1 January 2010 to 30 June 2010
$15.55
$2.332
$17.88
1 July 2010 to 30 June 2011
$16.23
$2.434
$18.66
1 July 2011 to end of employment
$16.78
$2.517
$19.30
Sleepover allowance
The parties also agreed that from 1 January 2010, Lovely Care was required by cl.25.7 of the Modern Award to pay the Employees a sleepover allowance for each night they were required to sleep overnight at Elizabeth Cottage, being:
Period
Standard rate
% of standard rate
Amount of allowance per occasion
1 January 2010 to 30 June 2010
$734.93
4.90%
$36.01
1 July 2010 to 30 June 2011
$760.93
4.90%
$37.28
1 July 2011 to 19 July 2011
$786.80
4.90%
$38.55
Total underpayments
It was agreed that the rates paid by Lovely Care to the Employees were less than their entitlement to minimum rates of pay and casual loading entitlements, resulting in underpayments of:
a)$42,658.88 to Mrs Wang; and
b)$19,298.52 to Dr Samaan.
It was agreed that from 1 January 2010, a sleepover allowance was also payable, but was not paid, to Mrs Wang on 311 occasions and to Dr Samaan on 300 occasions. As a result, Mrs Wang and Dr Samaan were underpaid $11,456.33 and $11,037.14 respectively.
RELEVANT LEGISLATION
Prior to 1 July 2009 – Workplace Relations Act
The WR Act was repealed by sch.1 to the FW (TPCA) Act and replaced by the FW Act. Nevertheless, item 11 of sch.2 to the FW (TPCA) Act provides that the WR Act continues to apply on and after its repeal in relation to conduct that occurred before the repeal. Consequently, the WR Act continues to apply to the events which occurred prior to 1 July 2009.
Minimum entitlements
Part 7 of the WR Act was entitled “The Australian Fair Pay and Conditions Standard”. The stated purpose of pt.7 was to set out key minimum entitlements of employment. Sections 182 and 185 of the WR Act were found in div.2 of pt.7 and relevantly provided:
Subdivision B—Guarantee of basic rates of pay
182 The guarantee
Guarantee of APCS basic periodic rates of pay
(1) If:
(a) the employment of an employee is covered by an APCS; and
(b) the employee is not an APCS piece rate employee;
the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro‑rated for part hours) that is at least equal to the basic periodic rate of pay (the guaranteed basic periodic rate of pay) that is payable to the employee under the APCS.
…
Subdivision C—Guarantee of casual loadings
185 The guarantee
(1) This section applies to a casual employee for whom, under section 182, there is a guaranteed basic periodic rate of pay, other than a casual employee in relation to whom the following paragraphs are satisfied:
(a) subsection 182(1) applies to the employee;
(b) the APCS that covers the employment of the employee does not contain casual loading provisions under which a casual loading is payable to the employee;
(c) the employee’s employment is not covered by a workplace agreement.
(2) The casual employee must be paid, in addition to his or her actual basic periodic rate of pay, a casual loading that is at least equal to the guaranteed casual loading percentage of that actual basic periodic rate of pay.
…
Part 3 of sch.8 to the WR Act preserved the SACS Award as a “notional agreement preserving State awards” (“SACS NAPSA”) with the consequence, by virtue of s.208 of the WR Act (which is found in div.2 of pt.7), that it was also a “preserved APCS”, i.e. Australian Pay and Classification Scale (“SACS Pay Scale” – as referred to above at [12]). Pursuant to s.171(3) of the WR Act, the SACS Pay Scale was part of the Australian Fair Pay and Conditions Standard applicable to the Employees.
Compensation
As noted earlier, Lovely Care was bound by the terms of the SACS NAPSA. Item 43 of sch.8 to the WR Act provided that a NAPSA might be enforced as if it were a collective agreement. Section 718(1) provided that a workplace inspector might apply for a penalty in respect of a breach of a term of a collective agreement.
Section 167(1A) of the WR Act provided that the Workplace Ombudsman was a workplace inspector. That office was abolished by the FW (TPCA) Act: item 2 of sch.1 and item 12 of sch.18. However, the presently relevant functions of the Workplace Ombudsman were assumed by the Ombudsman: s.682(1)(d) of the FW Act. Item 13 of sch.18 to the FW (TPCA) Act and s.701 of the FW Act empower the Ombudsman to bring this proceeding.
Section 719(6) of the WR Act relevantly provided:
719 Imposition and recovery of penalties
(1) An eligible court may impose a penalty in accordance with this Division on a person if:
(a) the person is bound by an applicable provision; and
(b) the person breaches the provision.
…
(6)Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision … , the court may order the employer to pay to the employee the amount of the underpayment.
It will be remembered that the parties have agreed that Lovely Care committed the contraventions set out above at [5].
Accessorial liability
Section 728 of the WR Act provided:
(1)A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.
(2)For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
1 July 2009 to 31 December 2009 – Fair Work (Transitional Provisions and Consequential Amendments) Act
The FW Act commenced on 1 July 2009 but modern awards and the National Employment Standards did not commence until 1 January 2010, the “FW (safety net provisions) commencement day”. While many provisions of the FW Act applied on and from 1 July 2009, as far as minimum employment standards and industrial instruments were concerned it was also a transitional period during which pre-FW Act provisions continued to apply pending the FW (safety net provisions) commencement day.
As a preserved APCS under the WR Act, the SACS Pay Scale was a “transitional minimum wage instrument” known pursuant to item 5(3) of sch.9 to the FW (TPCA) Act as a “transitional APCS” which continued in force until repealed by a modern award: item 11 of sch.9 to the FW (TPCA) Act. On and from 1 January 2010 it was replaced by the Modern Award.
Item 5(1) of sch.9 to the FW (TPCA) Act provides that div.2 of pt.7 of the WR Act, which included ss.182 and 185, continued to apply after the repeal date.
Item 5 of sch.16 to the FW (TPCA) Act states that a person must not contravene ss.182 (guarantee of basic rates of pay) or 185 (guarantee of casual loadings) of the WR Act as those sections continued to operate by virtue of the FW (TPCA) Act.
Compensation
Item 2(1) of sch.16 to the FW (TPCA) Act provides that a person must not contravene the terms of an award-based transitional instrument, such as the SACS NAPSA (see item 2(5)(a) of sch.3 to the FW (TPCA) Act), which applies to that person. Item 16 of sch.16 to the FW (TPCA) Act provides that pt.4-1 of the FW Act, which concerns compliance and enforcement of civil remedies and includes ss.545, 547 and 550, applies to item 2 of sch.16 to the FW (TPCA) Act as if that item were part of the FW Act.
Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of item 2(1) of sch.16 to the FW (TPCA) Act.
Accessorial liability
At all relevant times, s.550 of the FW Act has provided:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
From 1 January 2010 – Fair Work Act
Section 45 of the FW Act provides that a person must not contravene a term of a modern award.
Modern Award provisions
As previously indicated, the parties agreed that at all relevant times from 1 January 2010 Lovely Care was bound in respect of the Employees by the Modern Award.
Schedule A to the Modern Award provided for the transition of wage rates from pre-FW Act instruments to those of the Modern Award. Relevantly, cls.A.2.3, A.4 and A.5.2 of the Modern Award provided for the payment of minimum wage rates, loading, penalty rates and shift allowances in accordance with applicable transitional minimal wage instruments and award-based transitional instruments.
At the relevant times, cl.24.7, later renumbered cl.25.7, of the Modern Award also provided as follows:
24.7Sleepovers
(a)A sleepover means when an employee is required to sleep overnight on the employer’s premises.
(b)The span for a sleepover will be a continuous period of eight hours.
(c)Employees will be provided with a separate room with a bed, use of staff facilities and free board and lodging for each night when the employee sleeps over.
(d)The employee will be entitled to a sleepover allowance of 4.90% of the standard rate for each night on which they sleep over.
(e) In the event of the employee on sleepover being required to perform work during the sleepover period, the employee will be paid for the time worked at the prescribed overtime rate with a minimum payment as for one hour worked. Where such work exceeds one hour, payment will be made at the prescribed overtime rate for the duration of the work.
…
Compensation
Section 539(2) of the FW Act provides that s.45 is a civil remedy provision.
Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of a civil remedy provision.
Accessorial liability
Section 550 of the FW Act is quoted above at [40].
OMBUDSMAN’S EVIDENCE
Sundar Rajagopalan
Sundar Rajagopalan was the Fair Work Inspector who was involved in the investigation of complaints made against Lovely Care by Mrs Wang and Dr Samaan. Annexed to Mr Rajagopalan’s affidavit of 6 June 2014 was a collection of business searches he had undertaken. They recorded that at all times relevant to this matter Ms Bonilla was a director of Lovely Care and owner of one of the company’s two issued shares. Annexed to Mr Rajagopalan’s affidavit sworn on 19 November 2015 were relevant passages from the transcript of an interview he conducted with Ms Bonilla on 16 May 2013.
Yan Wang
Employment
Mrs Wang was employed by Lovely Care as a casual Disability Support Worker from June 2006 to July 2011. She deposed that she worked at Elizabeth Cottage where she performed personal care services for clients with disabilities. She also provided respite care for external clients in the community.
24-hour shifts
Mrs Wang deposed that she initially worked the day shift at Elizabeth Cottage, which required her to work from 9am to 9pm for which she was paid $200. After a few months, Ms Bonilla offered her the 24-hour shift, which she accepted, and advised her that she would be paid the same rate of $200.
Mrs Wang deposed that she started working the 24-hour shift in November or December 2006. She deposed that she performed these shifts five to six times a week, working a minimum of sixteen hours each shift.
Mrs Wang deposed that she did not leave Elizabeth Cottage during a rostered 24-hour shift except when directed by Ms Bonilla to provide personal care services to clients at their homes. She deposed that unless she was helping an external client at their house, Ms Bonilla required her to stay at Elizabeth Cottage during the day to look after the clients who did not attend day programs.
Mrs Wang deposed that Ms Bonilla would occasionally schedule meetings at 11pm.
Additional hourly shifts
Mrs Wang deposed that Ms Bonilla regularly directed her to attend external appointments to care for clients living in the community. She deposed that whilst it was not compulsory to work extra shifts, she never felt like she really had a choice. She felt that if she refused, she would be punished by not receiving any shifts the following fortnight.
She said that these shifts were given to her by Ms Bonilla and not Mr Almada (the disability support manager/duty manager).
Supervisor
Mrs Wang deposed that her “boss”, Ms Bonilla, was very much involved in the day to day running of Elizabeth Cottage. She deposed that Ms Bonilla allocated duties, supervised her work, did the rosters, instructed her on how to look after clients and paid her wages.
Mrs Wang deposed that Mr Almada was the duty manager at Elizabeth Cottage when she started until early 2011. She deposed that Mr Almada stayed at the cottage most nights but would only assist with clients if she or another carer needed help, for example, if more than one client required resettling.
Mrs Wang said that Ms Bonilla also regularly stayed overnight at the cottage. She said that between 2006 and 2008, Ms Bonilla and her son would stay overnight three to four times a week.
Mrs Wang deposed that Ms Bonilla and Mr Almada performed client duties only rarely, when carers needed assistance.
Mrs Wang said that although she worked under the supervision of both Mr Almada and Ms Bonilla, she and the other staff at Elizabeth Cottage knew that Ms Bonilla was the “big boss”. Mrs Wang said that if a problem or an issue arose, she preferred to go directly to Ms Bonilla as Mr Almada had no power and would, in any event, refer problems to Ms Bonilla for further instruction.
In relation to the work she performed onsite at Elizabeth Cottage, Mrs Wang said that she received instructions from both Mr Almada and Ms Bonilla. In relation to outside work, she received instructions from Ms Bonilla.
Mrs Wang said that Ms Bonilla also took care of the financial aspects of the business. She often saw Ms Bonilla collect and process the staff timesheets, although Mr Almada and Louis Mousa (financial controller) sometimes did this as well.
Rosters
Mrs Wang deposed that rosters were generally prepared by Ms Bonilla and sometimes by Mr Almada and that if she wanted to change her roster she spoke to Ms Bonilla. She deposed that Ms Bonilla provided her with a copy of the roster each week, either by handing her a copy personally or by leaving multiple copies in the kitchen at Elizabeth Cottage. She deposed that Ms Bonilla would then frequently make changes to the rosters by marking them, depending on the availability of other carers, additional work and client cancellations. Mrs Wang deposed that it was not unusual for staff members to also update the rosters to include any appointments or “changes in time”.
Mrs Wang deposed that she first received rosters in typed form and later received them in handwritten form. Both types of documents were given to her as rosters and she worked in accordance with them. She deposed that Ms Bonilla never suggested to her that the handwritten rosters were “calendars” or something other than a work roster.
Mrs Wang deposed that she never knew that she was not allowed to take and retain a copy of the rosters that were put in the kitchen. She thought that they were put in the kitchen for the staff to take as there were always enough copies for each staff member. She deposed that she always collected the roster and kept it for her own records so that she knew the shifts she was required to work.
Mrs Wang deposed that Mr Almada or Mr Mousa occasionally provided her with the weekly roster, although it was usually Ms Bonilla who did this. She deposed that she was not involved in preparing the rosters.
Post-employment
Mrs Wang deposed that she did not return to Elizabeth Cottage and go through the cupboards after her employment with Lovely Care ended.
Naim Samaan
Employment
Dr Samaan deposed that from August 2009 to July 2011, following his arrival in Australia and pending recognition of his medical qualifications, he was employed by Lovely Care as a casual Disability Support Worker. He deposed that he worked at Elizabeth Cottage where he performed personal and home care duties for clients who resided there.
Dr Samaan deposed that he worked the 24-hour shift at Elizabeth Cottage five to six times a week, from 5-6am to 10pm, working a minimum of 16-17 hours per shift. When working a 24-hour shift, Dr Samaan could not leave the premises except to take patients to day care or an outing or if he was sent to an external appointment. In the latter case, he did not make a separate record of the external clients and that work was not itemized on his pay slip.
Rosters
Dr Samaan deposed that Ms Bonilla was “in charge of everything”, including payroll, rosters and paperwork. He deposed that copies of the rosters were left in the kitchen by Ms Bonilla either weekly or fortnightly, although sometimes they would be provided by Mr Almada. The rosters were then changed and updated each day as, for example, external appointments were added or cancelled.
Dr Samaan deposed that if he needed to change his hours of work, he would speak to Ms Bonilla about changing the roster, not Mr Almada. He understood Ms Bonilla to be in charge of every task, not Mr Almada.
Dr Samaan deposed that he worked according to one roster, which covered his work at Elizabeth Cottage and for external clients. However, the forms of the rosters varied during his employment: sometimes they were typed and sometimes they were handwritten. He said that the handwritten rosters he received were in Ms Bonilla’s hand. Dr Samaan deposed that no one ever suggested to him that the handwritten documents were “calendars” or anything other than rosters.
Dr Samaan also deposed that he was not involved in preparing the rosters.
Supervisor
Dr Samaan deposed that Ms Bonilla was very involved in all day to day aspects of running Elizabeth Cottage. He deposed that she was there almost every day and regularly spent the night.
Dr Samaan deposed that while Lovely Care employed Mr Almada to be the duty manager to work at Elizabeth Cottage, it was Ms Bonilla who generally gave him instructions on how to look after each client and how to maintain the property. He also deposed that, based on his observations, Mr Almada did not have authority to make decisions about the running of Lovely Care without Ms Bonilla’s approval.
Dr Samaan said that Mr Almada often referred matters to Ms Bonilla as she was the person with ultimate responsibility. It was also his understanding, based on the fact that Ms Bonilla was “concerned” with all tasks, that Ms Bonilla was the owner of the business. He had not known that Mr Almada had a share in the business.
Dr Samaan said that staff timesheets were left for Ms Bonilla on the front door of her office, an office which she shared with Mr Almada and Mr Mousa. He did not know who examined and processed the timesheets but saw them being collected by Ms Bonilla and the accountant.
Dr Samaan also said that, initially, Mr Almada told him what hours to work. Later, both Mr Almada and Ms Bonilla told him the hours he had to work.
Dr Samaan said that if a problem arose during work, he would sometimes seek help or advice from Mr Almada who would tell him what to do.
Dr Samaan said that it was Ms Bonilla and not Mr Almada who allocated work tasks to him, including when he was to perform home care duties for external clients. He said that “a lot of times” when working a 24-hour shift, Ms Bonilla directed him to attend to outside clients. He said that Ms Bonilla handled all the paperwork for these jobs.
RESPONDENTS’ EVIDENCE
Elizabeth Bonilla
Lovely Care N Respite Pty Ltd
Ms Bonilla said that there were two businesses which operated out of Elizabeth Cottage – Lovely Care, which managed the cottage, and Lovely Care N Respite Pty Ltd (“LCNR”), which managed community services. Ms Bonilla deposed that LCNR was engaged in the business of providing home care services workers on a temporary basis to various organisations and engaged casual staff from a pool of approximately 45 workers.
She said that she was employed by LCNR and managed that business.
Rostering
Ms Bonilla deposed that she formulated and developed Lovely Care’s rostering procedures. In January 2010, those procedures were formalised in a workplace policy document entitled “Rostering Procedures” (“Rostering Procedures Policy”). Ms Bonilla deposed that prior to January 2010 she advised those responsible for setting the rosters of Lovely Care’s procedures, and that the procedures for setting rosters prior to January 2010 were materially the same as those set out in the Rostering Procedures Policy.
Ms Bonilla deposed that, as casuals, Mrs Wang and Dr Samaan were offered work by Lovely Care during each fortnightly work cycle. That work cycle was subject to change depending on the number of clients residing at Elizabeth Cottage at any given time. Ms Bonilla deposed that rosters were finalised in accordance with the work availabilities advised by the employees.
Ms Bonilla deposed that she was never personally responsible for determining and/or setting the hours and dates of work for any of Lovely Care’s employees. However, she instructed the persons responsible for rostering that rostering and scheduling of hours was to be in accordance with the Rostering Procedures Policy and that casual employees were to be offered work, but that this did not mean that they were required to work during these periods.
Ms Bonilla deposed that the individuals responsible for determining the times, dates and hours that each employee would work were as follows:
a)between 24 June 2006 and December 2010, Mr Almada assisted by Mrs Wang;
b)between December 2010 and February 2011, Mr Mousa, Financial Controller, with the assistance of Mr Almada. Ms Bonilla said that there had been “discrepancies” in Mr Almada’s allocations of staffing and, as a consequence, his rostering duties “were taken off him and passed onto” Mr Mousa at this time;
c)between February 2011 and March 2011, Dr Samaan assisted by Mrs Wang under the supervision of Mr Mousa. Ms Bonilla said that it was around this time that she started to approve the rosters herself; and
d)between March 2011 and 19 July 2011, Dr Samaan with the assistance of Mrs Wang and a Mr Milad Baulis (another employee) under her supervision.
Ms Bonilla deposed that Mr Almada and Mr Mousa had full authority to direct all employees when to work.
Ms Bonilla deposed that the authority of the above individuals to direct employees when to work included the preparation of all rosters, signing off of timesheets and ensuring that all employees were made aware of the times and dates at which they were required to work.
Ms Bonilla deposed that at no time between about 24 May 2006 and 24 March 2011 was she ever directly involved in the day to day determination of which employees would work particular hours or on particular dates for Lovely Care. However, in her role as director of Lovely Care, she directed those individuals in the relevant periods to comply with both the unwritten and then the written policy on rostering when offering work and preparing rosters. The first roster which she handwrote was prepared at the end of February 2011 and she did not prepare typed rosters.
Ms Bonilla deposed that rosters were made available to employees and determined two weeks in advance. She deposed that any changes to the roster thereafter were handwritten by the person responsible for preparing the rosters.
Ms Bonilla said that she had been too busy to deal with any rostering and staffing issues at Elizabeth Cottage which is why the organisation employed somebody to do this. She said that she had never left rosters in the kitchen for staff to review and collect. She said that she would see rosters “lying around” and would observe staff coming and going. She said that this had been the extent of her involvement “of practically everything at Elizabeth Cottage”.
Ms Bonilla deposed that many of the documents which Mrs Wang and Dr Samaan said were “rosters” were in fact “calendars” which she had drafted by hand to record an individual employee’s availability on any given day to perform work for LCNR. Ms Bonilla deposed that the calendars were internal documents created solely for the benefit of the office staff so that they could easily determine the availability of a staff member to perform home care services work for LCNR and were never distributed to staff as they often contained confidential information and management notes relating to clients.
Ms Bonilla also said that some of the documents which she described as calendars recorded Dr Samaan working or proposing to work 24-hour shifts at Elizabeth Cottage.
Roles of Ms Bonilla and Mr Almada generally
Ms Bonilla deposed that she was a director of Lovely Care at all relevant times. She deposed that Mr Almada was also a director of Lovely Care for the periods 24 May 2006 to 10 May 2008 and 1 July 2008 to 19 January 2011.
Ms Bonilla deposed that she and Mr Almada commenced a professional and personal relationship in 1992. While their personal relationship ended in 2007, they decided that they would remain friends and continued to work together until March 2011, although their professional relationship became acrimonious in January 2011.
Ms Bonilla deposed that Mr Almada was employed by Lovely Care in or around June 2002 as a permanent Community Support Worker. On 24 May 2006 he was appointed to the position of Disability Support Manager (or duty manager) and occupied that role until March 2011, at which time he undertook a period of absence on workers compensation. Ms Bonilla deposed that Mr Almada was employed on a permanent full-time basis and resided at Elizabeth Cottage, including for the purpose of being the resident carer every night between the hours of 9pm and 6am.
Ms Bonilla deposed that in his role as Disability Support Manager, Mr Almada was also responsible for the day to day running of Elizabeth Cottage. She deposed that his duties included:
a)recruitment of staff;
b)supervision and training of staff;
c)preparation of rosters and allocation of work to staff;
d)assigning staff to care for specific clients; and
e)ensuring that staff completed necessary paperwork.
Ms Bonilla deposed that she held the position of Director of Client Services and was responsible for collating data from the paperwork and forwarding it to the relevant funding body. She deposed that she was not responsible for payroll, rosters or paperwork. Ms Bonilla deposed that employees were required to complete timesheets which they would then give to Mr Almada at the end of the fortnightly cycle. Ms Bonilla deposed that Mr Almada was responsible for the payroll function and would give her the timesheets after he had processed the pays.
Ms Bonilla said that it took a long time for Lovely Care to be reimbursed for its services by the Department of Ageing and Disability and so, because LCNR “was the company that had the finances”, it used to pay all staff and expenses. She said that she processed the timesheets for payroll purposes, “doing payments for all the staff”, and that this system had been in place throughout Mrs Wang’s and Dr Samaan’s employment. She said that she regularly saw timesheets from Mrs Wang and Dr Samaan that recorded 24 hour shifts they had worked.
Ms Bonilla also said that she had been responsible for drafting (with Mr Almada’s assistance) and approving the employment pack which was given to all staff at the commencement of their employment. Included in the employment pack was information on the terms and conditions of employment at Lovely Care and LCNR, including probationary periods and applicable award rates for casuals. Ms Bonilla said that Mrs Wang and Dr Samaan would have received an employment pack as part of standard procedure.
Ms Bonilla knew that the employment pack mentioned an hourly wage rate as well as that the SACS Award provided for the relevant minimum hourly rates of pay. She said that employees were paid in accordance with the award.
Ms Bonilla said that Mr Almada reported directly to her during the period of his employment but denied that she sat above him in the management structure. She said that Mr Almada was not an employee but a director and, as such, she viewed him as her equal. From time to time and because she was more experienced, Mr Almada would ask her for advice and she would offer suggestions but she did not instruct him on how to manage Elizabeth Cottage.
Additional work during the day
Ms Bonilla deposed that she was responsible for allocating external jobs to the staff until August 2010 when Ms Janice Taylor (who had originally been employed by Lovely Care as a consultant and later as Operations Manager) assumed that responsibility. She deposed that these additional shifts were never compulsory as there were plenty of staff at Lovely Care who wanted to earn extra income. Ms Bonilla deposed that Mrs Wang regularly and willingly worked these shifts while Dr Samaan rarely accepted them because of family and study commitments.
Overnight shifts
Ms Bonilla deposed, citing a 2009 roster, that while staff might appear on the roster to be available for a twenty-four hour period, this was to ensure that those employees who elected to stay at Elizabeth Cottage on a regular basis, including, in particular, Dr Samaan and Mrs Wang, were covered by Lovely Care’s workers compensation policy, although in cross-examination she said that she had not been aware until February 2011 that Dr Samaan and Mrs Wang had been staying overnight at the cottage. She deposed that Dr Samaan did not like to be at his own home because he was studying to obtain local recognition of his Egyptian medical qualification. Ms Bonilla deposed that Mr Almada had advised her that he found it easier to produce rosters which reflected the staff’s availability over a twenty-four hour period, however, this did not mean that those hours were actually worked. Staff who were noted as being available for a 24-hour shift were understood to be available to attend Elizabeth Cottage but were not required to be on the premises. Ms Bonilla said that she did not know that Dr Samaan would sleep overnight at the cottage during a 24-hour shift. She said that he finished his shifts at 9pm because there was a resident carer sleeping at the cottage and taking care of clients.
Ms Bonilla participated in a recorded interview with Mr Rajagopalan on 16 May 2013. A transcript of that interview records Ms Bonilla giving the following evidence:
a)she first noticed that employees were working 24-hour shifts when she looked at the rosters in October 2010;
b)the 24-hour shift was implemented for insurances purposes in 2006/2007 “because the employees refused to go home”;
c)during a 24-hour shift, employees were only required to work between six and eight hours “hands on” but were to be available to assist the rest of the time;
d)employees rostered on a 24-hour shift needed to be on the premises in order to provide assistance if the need arose;
e)employees would not have to wake up if the clients stayed asleep; and
f)employees rostered on a 24-hour shift might not be required to work but were required to be present, ready and able to work.
Ms Bonilla said that she could not recall making some of these statements during her interview with Mr Rajagopalan and denied that she would have said words to the effect of (d) and (f) because that would not have been the truth. However, after listening to a recording of the interview, she agreed that she had made those statements.
Ms Bonilla also deposed that she did not hold meetings between the hours of 11pm and 1am. She deposed that she was often at her home in Fairfield and not on the premises at Elizabeth Cottage.
Break-ins at Lovely Care
Ms Bonilla deposed that there were two unauthorised entries to Elizabeth Cottage in 2011, one on 22 January and the other on 16 July.Ms Bonilla deposed that Lovely Care’s computer and paper records of personal data relating to the Employees were stolen from the premises.
At the time Lovely Care’s office was accessed in July 2011, only Ms Bonilla, Mr Almada, Ms Taylor, Mr Mousa and Mr Mousa’s son had keys to the office. Ms Bonilla deposed that hard copies of the following documents were missing:
a)the entire personnel files of Mr Almada, Mrs Wang and Dr Samaan;
b)documents from another employee’s personnel file;
c)all hard copy rosters kept by Lovely Care in archive boxes for all employees between the dates of, roughly, 2006 to mid-2011; and
d)data on the number of residents accommodated by Lovely Care at any particular point.
Ms Bonilla deposed that, at the time, the personnel files of Mrs Wang and Dr Samaan contained handwritten LCNR calendars which she had created. She deposed that she recognised certain of these calendars as exhibits to their affidavits in these proceedings.
Ms Bonilla also deposed that in or around August 2011 she discovered that the rosters (amongst other documents) held in electronic copy on Lovely Care’s computer in the server on Mr Almada’s drive for periods between approximately 2006 and 2011 had been deleted. She deposed that the only people who had knowledge of the passwords to these computer systems were Mr Almada and Lovely Care’s accountant.
Ms Bonilla deposed that she attempted to restore the missing employee records but had only been able to restore employee records relating to two short periods in 2009 and a brief period in 2011.
CONSIDERATION
Test for liability as an accessory
Whether Ms Bonilla is liable to penalty for being an accessory to Lovely Care’s contraventions of the various Acts and instruments to which reference has been made will depend on findings on two issues.
The first of these is whether she was “involved” in the contraventions in the manner explained in the authorities. The cases show that for a person to have accessorial liability under s.550(2)(c) of the FW Act he or she:
·must have knowledge of the essential facts constituting the contravention;
·must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient in cases of wilful blindness; and
·need not know that the matters in question constituted a contravention.
See Fair Work Ombudsman v Raying Holding Pty Ltd (No.2) (2017) 324 FLR 289 at 309 [93]ff.
The second issue is whether Ms Bonilla knew that the SACS Pay Scale or the Modern Award applied to the Employees at their respectively relevant times. The Ombudsman submitted that she did not have to prove that Ms Bonilla had had such knowledge. The Ombudsman unsuccessfully advanced the same argument in Fair Work Ombudsman v Raying Holding Pty Ltd (No.2) and for the reasons given in that case at 309 [93] to 315 [111], based principally on Potter v Fair Work Ombudsman [2014] FCA 187 and Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, I hold that before Ms Bonilla can be found liable as an accessory to Lovely Care’s contraventions of the SACS Pay Scale or the Modern Award, it must be proved that at relevant times she knew that the SACS Pay Scale or the Modern Award applied to the Employees’ employment.
Factual involvement
The “essential facts” in this case were:
a)the Employees’ casual employment with Lovely Care during the periods alleged;
b)the hours that the Employees worked;
c)the ordinary time rates, casual loadings and sleepover allowances the Employees should have been paid;
d)Lovely Care’s failure to pay the Employees their full ordinary time entitlements;
e)Lovely Care’s failure to pay the Employees a casual loading; and
f)in the period commencing on 1 January 2010, Lovely Care’s failure to pay the Employees a sleepover allowance for the nights they slept at the cottage.
The first of those points was admitted as were the applicable rates for ordinary time wages, the casual loading and the sleepover allowance.
Although the parties devoted considerable attention to identifying who prepared rosters and how rosters were distributed, this evidence was largely irrelevant to the determination of this matter, which was concerned with hours worked on-site and with rates and allowances paid, not with how work was allocated or shifts advised. Nonetheless, I have concluded that the documents which Ms Bonilla described as calendars and the Employees described as handwritten rosters and which were each concerned with only one named staff member, were not rosters and in doing so I accept Ms Bonilla’s characterisation of those documents as the more accurate and the one to be preferred. I do so having regard to the precision of the documents which Ms Bonilla and the Employees all described as rosters or draft rosters (eg pp.24-50 and 51-58 of exhibit 1 – the documents referred to in Dr Samaan’s affidavit sworn 6 June 2014; and pp.20-33, 34-238, 251-257 of exhibit 3 – the documents referred to in Mrs Wang’s affidavit sworn 6 June 2014). In contrast, I find the “calendars” to have been too informal in appearance to have performed the function of rosters. For instance, the calendars at pp.17-23 of exhibit 1 display symbols and lines which are not explained although they appear to indicate that Dr Samaan was not on duty and there are many entries which imply but do not state with the clarity which might be expected that a shift was an overnight one and was to finish the next morning. Further, various tasks such as “Simon Sunshine Lodge”, “Todd pick up’ and “Drop off William” were not obviously rostered as events to occur at particular or precise times but were nevertheless apparently to be taken into account. Similar observations can be made in relation to the calendars which were at pp.239-247 of exhibit 3.
Additionally, amongst the documents which were behind tab 3 of exhibit 1 were both “calendars” and rosters for 12-19 June 2011, 25 June 2011, 6-10 July 2011, 18-20 July 2011 and 22-23 July 2011. The existence of many examples of two documents addressing the same period of time indicates to me that each served a different function and, for the reasons given, I conclude that the “calendar” was a working document which assisted in the preparation of the roster. My conclusion on the proper characterisation of those documents also leads me to prefer Ms Bonilla’s evidence that the calendars were internal working documents that were not distributed to staff and to reject the Employees’ evidence that those documents were distributed to them. I do not need to reach a conclusion on how the documents came to be in the Employees’ possession.
However, even if I am wrong in how those documents should be characterised, both the calendars and the rosters recorded the Employees being on duty overnight on various occasions after the commencement of the Modern Award. That is to say, whichever is to be taken to have been the roster, they both recorded 24-hour shifts and even on her own evidence, Ms Bonilla was the author of the calendars.
But in any event, Ms Bonilla has admitted that she said to Mr Rajagopalan during their interview on 16 May 2013 that from about late 2006, or 2007, she had been aware of the use of 24-hour shifts. She also told the inspector that she had known that employees rostered on a 24-hour shift were required to be on-site and available to work. I accept that evidence to be more accurate than Ms Bonilla’s subsequent evidence that those employees were not required to be on-site during those shifts because the original version of the situation makes better sense than the second and Ms Bonilla did not explain why the second version ought to be preferred, particularly in circumstances where her recollection in the witness box was shown to have been faulty in at least one important respect.
But even if the calendars and rosters had not been in evidence, although Ms Bonilla deposed that she was not responsible for payroll, rosters or paperwork it is nevertheless apparent that she knew the hours which employees worked and what they were paid for their work. Her evidence is that although Mr Almada processed the pays, throughout Mrs Wang’s and Dr Samaan’s employment she was the one who nevertheless processed all the timesheets for payroll purposes and did payments for all the staff from the LCNR accounts.
I therefore find that at some point during each of the three statutory regimes which are relevant to this matter Ms Bonilla knew:
a)the hours the Employees worked; and
b)what the Employees were being paid for that work;
and so at the material times knew the essential facts which constituted the contraventions, in the sense that she knew the facts which showed that the Employees were in fact:
c)being underpaid ordinary time rates;
d)not being paid casual loadings; and
e)not being paid sleepover allowances.
Further, it is apparent that Ms Bonilla’s involvement in payments to the staff, being the person ultimately responsible for Lovely Care’s decisions in relation to payments made to the Employees, demonstrates that she was an intentional participant in the contraventions. In that connection she had the sort of association, in the sense of a linked purpose, with Lovely Care’s action which is inherent in the role of an accessory: Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at 308 [26]. I therefore find, subject to resolution of the second issue concerning knowledge of statutory instruments, that Ms Bonilla was involved in Lovely Care’s contraventions of the WR Act, the FW (TPCA) Act and the FW Act.
Because of my conclusion as to Ms Bonilla’s knowledge, it is not necessary to decide who directed which staff members to perform what tasks or who prepared any particular roster.
Knowledge of relevant industrial instruments
Ms Bonilla understood when Mrs Wang and Dr Samaan commenced employment that their wages were to be paid according to the SACS Award and that that Award provided for minimum rates of pay. It was not suggested that the fact of the SACS Award having become the SACS NAPSA and its pay scales having become the SACS Pay Scale was of any significance for the purpose of Ms Bonilla’s knowledge of what Lovely Care had been obliged to pay the Employees. I find that Ms Bonilla had sufficient knowledge of the relevant industrial instrument, as required by Potter v Fair Work Ombudsman, that her intentional participation in the acts which amounted to Lovely Care’s contraventions of the WR Act and the FW (TPCA) Act mean that she should be taken to have been involved in those contraventions for the purposes of s.728 of the WR Act in respect of the period ending on 30 June 2009 and s.550 of the FW Act in respect of the transitional period from 1 July 2009 to 31 December 2009.
In respect of the period commencing on 1 January 2010, the Ombudsman submitted that the Court should infer that Ms Bonilla was also aware of the application of the Modern Award, in that:
a)she was familiar with the award system as a sophisticated employee with over 20 years’ experience;
b)she had been responsible for setting wages for the Employees on behalf of Lovely Care;
c)she had had responsibility in a practical sense for ensuring Lovely Care's compliance with both the WR Act and the FW Act; and
d)she had been aware that the “employment pack” provided to Mrs Wang and Dr Samaan referred to the relevant award, which in their cases was the SACS Award, and was adjusted from time to time “depending on legislation”.
Although the first three of these contentions can be accepted, the last one should not be. First, Ms Bonilla did not say with the clarity implied by the submission that the employment pack was updated to reflect the advent of the Modern Award. The relevant exchange was recorded at pp.85-87 of the transcript where Ms Bonilla said that the pack “might be adjusted from time to time, depending on legislation” and that although she understood that the version of the pack on which she was cross-examined said that wages were paid in accordance with the SACS Award she also observed that “it has changed throughout the time”. However, at no point did Ms Bonilla acknowledge in terms the existence of the Modern Award and no document indicated that she actually knew of it.
Further, it was never put to Ms Bonilla that she had been aware of the Modern Award or its requirements. The Ombudsman submitted that it was sufficient for the evidence to demonstrate circumstantially or inferentially actual knowledge on Ms Bonilla’s part, as was the case in Fair Work Ombudsman v Devine Marine Group, but the facts of this case are distinguishable from those of Fair Work Ombudsman v Devine Marine and do not, in my view, point to Ms Bonilla having had any particular awareness of the Modern Award having superseded the SACS NAPSA. In all those circumstances, I do not find that Ms Bonilla had the knowledge of the Modern Award which Potter v Fair Work Ombudsman requires in order that she might be held liable as an accessory to Lovely Care’s contraventions of the FW Act.
CONCLUSION
By reason of her involvement in Lovely Care’s contraventions of the WR Act and the FW (TPCA) Act referred to above, Ms Bonilla is taken to have also contravened the following provisions of the WR Act and the FW (TPCA) Act:
a)s.182(1) of the WR Act by failing to pay Mrs Wang the guaranteed rate of pay under the SACS Pay Scale for every hour worked during the period 8 October 2007 to 30 June 2009;
b)s.185(2) of the WR Act by failing to pay Mrs Wang the guaranteed casual loading contained in the SACS Pay Scale for every hour worked during the period 8 October 2007 to 30 June 2009;
c)item 5 of sch.16 to the FW (TPCA) Act by failing to pay the Employees the guaranteed rate of pay under the SACS Pay Scale for every hour worked during the period 1 July 2009 to 31 December 2009; and
d)item 5 of sch.16 to the FW (TPCA) Act by failing to pay the Employees the guaranteed casual loading contained in the SACS Pay Scale for every hour worked during the period 1 July 2009 to 31 December 2009.
There will be declarations accordingly and the matter will stand over for further directions.
I certify that the preceding one-hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 10 January 2019
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