Fair Work Ombudsman v Raying Holding Pty Ltd and Anor (No.2)
[2017] FCCA 2148
•12 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v RAYING HOLDING PTY LTD & ANOR (No.2) | [2017] FCCA 2148 |
| Catchwords: INDUSTRIAL LAW – Accessorial liability for contraventions of the Fair Work Act 2009 (“FW Act”) – whether knowledge of the applicable law or industrial award is a necessary element of the proof of accessorial liability under the FW Act. |
| Legislation: Constitution, s.109 Crimes Act 1914, s.4AA Trade Practices Act 1974, s.75B |
| Fair Work Ombudsman v Raying Holding Pty Ltd & Anor [2015] FCCA 36 Potter v Fair Work Ombudsman [2014] FCA 187 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | RAYING HOLDING PTY LTD (ACN 144 614 175) |
| Second Respondent: | ZU NENG SHI |
| File Number: | SYG 511 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 8-9 September 2015 |
| Date of Last Submission: | 9 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Chin |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| No appearance by or on behalf of the First Respondent |
| Counsel for the Second Respondent: | Mr M. Easton and Mr Duc |
| Solicitors for the Second Respondent: | Ren Zhou Lawyers |
ORDERS
The matter be listed for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 511 of 2014
| FAIR WORK OMBUDSMAN |
Applicant
And
| RAYING HOLDING PTY LTD (ACN 144 614 175) |
First Respondent
| ZU NENG SHI |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The first respondent (“Raying Holding”) operated a labour hire business which supplied employees to an abattoir in Scone, New South Wales. In a default judgment entered against Raying Holding on 15 January 2015 (Fair Work Ombudsman v Raying Holding Pty Ltd & Anor [2015] FCCA 36 (“first judgment”)), declarations were made that Raying Holding had, in respect of its employees, contravened the following civil remedy provisions of the Fair Work Act 2009 (“FW Act”):
a)s.357 of the FW Act by misrepresenting to Wei Hua Huang and Daying Quan that the contract under which each of them was engaged to perform work for Raying Holding was a contract for services under which each of them would perform services as an independent contractor;
b)s.45 of the FW Act (by contravening cl.19 of the Meat Industry Award 2010 (“Modern Award”)), by failing to provide Kwok To Li, Kwok Chi Sum and Ling Hui Wang their basic rate of pay;
c)s.45 of the FW Act (by contravening cl.15.9 of the Modern Award), by failing to provide Kwok To Li, Kwok Chi Sum, Ling Hui Wang and Jou Chian their casual loading;
d)s.45 of the FW Act (by contravening cl.36.1(a) of the Modern Award), by failing to pay Wei Hua Huang, Daying Quan, Kwok To Li, Ho Hsuan Ching, Kwok Chi Sum, Ling Hui Wang, Hao-Cyun Sung, Po Lin Chen, Chun Jung Chiang and Jou Chian (“Employees”) their applicable overtime rates for every hour worked as overtime;
e)s.44 of the FW Act, by failing to pay Wei Hua Huang and Daying Quan for absences on public holidays during the period 3 October 2011 to 17 May 2013;
f)s.535(1) of the FW Act, by failing, during at least the period 12 March 2011 to 5 July 2013, to make and keep employee records which included the information prescribed by regs.3.33(2), 3.34, 3.36(1) and 3.37 of the Fair Work Regulations 2009 (“FW Regulations”); and
g)s.536(1) of the FW Act, by failing to provide Kwok To Li, Ho Hsuan Ching, Kwok Chi Sum, Ling Hui Wang, Hao-Cyun Sung, Po Lin Chen, Chun Jung Chiang and Jou Chian (“Casual Employees”) with pay slips during at least the period 4 November 2012 to 5 July 2013.
Raying Holding was deregistered on 10 February 2015.
The second respondent, Mr Shi, was principally responsible for the overall direction, management and supervision of Raying Holding’s operations and the applicant (“Ombudsman”) alleged that he was knowingly concerned in or a party to Raying Holding’s contraventions of the FW Act. Mr Shi denied having had actual knowledge that workplace laws were being breached.
The Ombudsman and Mr Shi agreed that Raying Holding had contravened the FW Act and the particulars of their agreement were set out in a statement of agreed facts.
This stage of the proceeding is concerned with whether Mr Shi was an accessory to Raying Holding’s contraventions and is liable to pay civil pecuniary penalties pursuant to s.546 of the FW Act and, if so, in what amounts.
For the reasons which follow, I find that Mr Shi was involved in Raying Holding’s contraventions of the FW Act particularised at [1] above, subject to one very small date change, and that as a consequence he is taken to have similarly contravened that Act.
LEGISLATION
National Employment Standards
Part 2-2 of chp.2 of the FW Act contains the National Employment Standards (“NES”) which are minimum standards of employment which cannot be displaced. By virtue of s.61(3) of the FW Act, ss.114 and 116 are provisions of the NES. Those sections relevantly provide:
114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes.
…
116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part‑day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part‑day.
Section 44 of the FW Act provides that an employer must not contravene a provision of the NES.
Modern Award
Section 45 of the FW Act provides that a person must not contravene a term of a modern award.
As recorded earlier, it was agreed that Raying Holding was bound by the Modern Award in respect of the Employees. That award relevantly provided:
15.9A casual employee, for each ordinary hour worked or part thereof, will be paid at the rate of:
(a)1/38th of the appropriate weekly rate prescribed in clause 19—Minimum Wages; plus
(b) a casual loading of 25% based on that hourly rate.
…
36.1Entitlement to overtime and payment
(a)All time worked outside ordinary working hours as prescribed in clause 31—Hours of work … will be deemed to be overtime and be paid for at time and a half for the first three hours and double time thereafter.
Clause 19.1 of the Modern Award provided for wage rates.
Misrepresentation
Part 3-1 of chp.3 of the FW Act provides for employees’ general protections. Section 357 of the FW Act is found in div.6 of pt.3-1 and provides:
357 Misrepresenting employment as independent contracting arrangement
(1)A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.
(2)Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:
(a) did not know; and
(b) was not reckless as to whether;
the contract was a contract of employment rather than a contract for services.
Records and pay slips
Sections 535 and 536 of the FW Act relevantly provide:
535 Employer obligations in relation to employee records
(1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
(2) The records must:
(a) if a form is prescribed by the regulations—be in that form; and
(b) include any information prescribed by the regulations.
…
536 Employer obligations in relation to pay slips
(1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
…
Regulations 3.33(2), 3.34, 3.36(1) and 3.37 of the FW Regulations require an employer to keep records relating to the hours worked by casual employees, the number of overtime hours worked by employees, details of any leave taken or accrued by employees and details of any superannuation contributions made for employees.
Accessorial liability
Section 550 of the FW Act states:
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.
Section 539 of the FW Act provides that ss.44(1), 45, 357(1), 535(1) and 536(1) are civil remedy provisions.
STATEMENT OF AGREED FACTS
On 31 July 2015 the Ombudsman and Mr Shi filed a statement of agreed facts which essentially adopted, with minor variations, the allegations made in the Ombudsman’s statement of claim filed on 4 March 2014 (summarised in the first judgment at [5]-[16]). Relevant agreed facts are summarised below.
Classification and status
It was agreed that the Employees were employed by Raying Holding according to the following details:
Name
Area of abattoir operations
Relevant period of work
Employment Status
Award Level
Wei Hua Huang
Slaughtering
14/03/11 –21/09/14
Full-time
Level 2
Daying Quan
Boning
04/08/11 – 18/03/14
Full-time
Level 2
Kwok To Li
Boning
17/11/12 – 17/05/13
Casual
Level 1 from 17/11/12 to 22/03/13
Level 2 from 23/03/13 to 26/04/13
Kwok Chi Sum
Boning
15/12/12 – 17/05/13
Casual
Level 2
Jou Chian
Boning
05/01/13 – 19/04/13
Casual
Level 1
Ho Hsuan Ching
Despatch
17/11/12 – 14/06/13
Casual
Level 1
Hao-Cyun Sung
Despatch
04/11/12 – 28/06/13
Casual
Level 2
Chun Jung Chiang
Despatch
24/02/13 – 05/07/13
Casual
Level 1
Ling Hui Wang
Slaughtering
04/11/12 – 05/07/13
Casual
Level 3
Po Lin Chen
Slaughtering
17/02/13 – 21/06/13
Casual
Level 2
It was agreed that those individuals were employees of Raying Holding because, amongst other things, the company determined the level and form of their remuneration, their hours of work and paid them for the hours they worked each week without requiring them to render it invoices. It was also agreed that they did not conduct businesses in their own right.
Misrepresentation
It was agreed that Raying Holding contravened s.357(1) of the FW Act by misrepresenting to Wei Hua Huang from March 2011 to June 2012 and Daying Quan from August 2011 to October 2012 that their employment contracts were independent contracting arrangements. Raying Holding’s misrepresentations arose from its conduct in:
a)requiring both employees to maintain Australian Business Numbers (“ABNs”);
b)on occasion, creating “recipient-generated” tax invoices on their behalf;
c)not withholding income tax from payments made to them; and
d)not making superannuation guarantee payments in respect of either of them.
Underpayments
It was agreed that, at all relevant times, Raying Holding was bound by the Modern Award in respect of the Employees.
Minimum wages
It was agreed that Raying Holding breached cl.19.1 of the Modern Award, and therefore s.45 of the FW Act, by underpaying or failing to pay the below employees their minimum wages, resulting in the following underpayments:
Employee
Underpayment
Kwok To Li
$3,006.59
Kwok Chi Sum
$1,033.91
Ling Hui Wang
$43.52
Casual loading
It was agreed that Raying Holding breached cl.15.9(b) of the Modern Award, and therefore s.45 of the FW Act, by underpaying or failing to pay the below employees the applicable transitional casual loading which, between 1 July 2012 to 30 June 2013, was 20% of the hourly rate. It was agreed that the following underpayments resulted:
Employee
Underpayment
Kwok To Li
$601.25
Kwok Chi Sum
$1,501.72
Ling Hui Wang
$763.84
Jou Chian
$1,636.88
Overtime
Pursuant to cl.36.1(a) of the Modern Award, Raying Holding was required to pay the Employees overtime rates of pay for all hours worked in excess of ordinary hours (being thirty-eight hours per week) at the rate of time and a half for the first three hours and double time thereafter.
It was agreed that Raying Holding breached cl.36.1(a) of the Modern Award, and therefore s.45 of the FW Act, by underpaying or failing to pay the Employees their applicable overtime rates for every hour worked as overtime, resulting in the following underpayments:
Employee
Underpayment
Wei Hua Huang
$3,093.76
Daying Quan
$8,092.82
Kwok To Li
$1,112.31
Kwok Chi Sum
$503.00
Jou Chian
$1,194.71
Ho Hsuan Ching
$7,533.52
Hao-Cyun Sung
$6,003.19
Chun Jung Chiang
$1,608.02
Ling Hui Wang
$424.50
Po Lin Chen
$347.41
Public holidays
It was further agreed that Raying Holding failed to pay Wei Hua Huang and Daying Quan for absences on public holidays during the period from 22 April 2011 to 17 May 2013, resulting in underpayments of $1,008.59 and $2,164.95 respectively. It was agreed that Raying Holding thereby contravened ss.116 and 44 of the FW Act.
Total underpayments
As a result of these contraventions, Raying Holding underpaid the Employees the following amounts:
Employee
Total Underpayment
Wei Hua Huang
$4,102.35
Daying Quan
$10,257.77
Kwok To Li
$4,720.15
Kwok Chi Sum
$3,038.63
Jou Chian
$2,831.59
Ho Hsuan Ching
$7,533.52
Hao-Cyun Sung
$6,003.19
Chun Jung Chiang
$1,608.02
Ling Hui Wang
$1,231.86
Po Lin Chen
$347.41
TOTAL
$41,674.49
It was agreed that the underpayments had been rectified.
Records and pay slips
It was agreed that during the period 12 March 2011 to 5 July 2013, Raying Holding failed to make or keep records in relation to the hours the Employees worked, overtime hours worked, leave taken, leave balances and superannuation contributions, thereby contravening s.535 of the FW Act.
It was also agreed that during the period 4 November 2012 to 5 July 2013, Raying Holding did not issue any pay slips to the Casual Employees. As a consequence, it contravened s.536(1) of the FW Act.
Accessorial liability
It was agreed that Mr Shi was, at all material times, principally responsible for the overall direction, management and supervision of Raying Holding’s operations.
It was also agreed that Mr Shi was:
a)a person who made decisions on behalf of Raying Holding regarding:
i)the basis upon which persons would be engaged to perform work for Raying Holding and the terms and conditions of such engagements;
ii)payroll for the Employees, including setting the amount of payments;
iii)the accommodation arrangements for the Employees while working at the abattoir; and
iv)what deductions, if any, would be made from payments for accommodation expenses;
b)a person with knowledge of, and experience in, the Australian meat processing industry in that he had participated in the operation of other labour hire companies responsible for placing overseas workers in Australian abattoirs;
c)Raying Holding’s representative in all dealings with the Employees in the lead-up to and during their employment; and
d)the person who determined the terms and conditions of the Employees’ employment with Raying Holding.
It was also agreed that Ms Jane Xue was employed or engaged by Raying Holding to perform administrative duties and reported directly to Mr Shi.
EVIDENCE
Paula Cunneen
Ms Cunneen was the Fair Work Inspector who conducted the initial investigation into Raying Holding’s breaches of workplace laws. She deposed to the investigation she conducted into Raying Holding’s operations.
Documents referred to by Ms Cunneen became exhibit 1. They included records of her interviews with Mr Huang and Mr Quan, the Employees’ time records when working at the Scone abattoir, recipient-created tax invoices prepared by Raying Holding relating to Mr Huang and Mr Quan, Raying Holding’s agreement with Primo Australia Scone Abattoir (“Primo”) (the business which operated the Scone abattoir) dated 12 March 2013 and a letter from Primo describing how that particular agreement came about.
In the records of interview both Mr Huang and Mr Quan spoke of Mr Shi’s involvement in their acquisition of ABNs and Mr Huang spoke of arriving at Scone and being told that he had to pay tax twice, once as an individual and secondly as a sole trader with an ABN. Mr Quan spoke of Mr Shi telling him that superannuation contributions would not be made for him. He was also told that the work was heavy manual work.
In his letter to the Ombudsman dated 17 October 2013, Primo’s Group General Manager said in relation to the 12 March 2013 contract with Raying Holding that:
The rates of pay agreed in the contract (and generally reviewed on an annual basis in response to award movements) were proposed by Raying to gain our business. We deal with a number of labour hire companies across our business in what I understand is a very competitive industry.
Grant Courtney
Mr Courtney was the Branch Secretary of the Newcastle and Northern Branch of the Australasian Meat Industry Employees Union (“AMIEU”).
Mr Courtney deposed that in or about April 2012 the AMIEU started receiving complaints from a number of international workers who were employed in various roles within the meat industry in northern New South Wales. Some of those complaints came from union members working for Raying Holding at the Scone abattoir.
Mr Courtney deposed that on 12 March 2013 he sent a letter to Ms Ruiying Lu, the director of Raying Holding, outlining alleged contraventions of workplace laws, including underpayment of wages and non-payment of overtime rates. The letter also advised Ms Lu that the Modern Award applied to her meat processing employees.
Mr Courtney deposed that on 26 March 2013 he attended a meeting at Raying Holding’s head office in Auburn which was also attended, relevantly, by Mr Shi. He deposed that during that meeting he advised Raying Holding’s representatives of their obligations under the Modern Award and provided them with copies of it, as well as an information sheet about the NES.
Mr Courtney deposed that in a further meeting on 16 April 2013, which was held at the AMIEU’s Newcastle office, he and Mr Shi had the following exchange:
MR SHI:The Raying business is an accidental business. It is not my real business – I am in the export business, not the labour hire business. I am willing to help my workers but you need to understand the costs for Raying are very high.
For example, for each employee it costs 85 dollars per week for accommodation, for a translator it is 85 cents per person per hour, administration and transport fees are 85 cents per person per hour, public liability insurance costs 9 cents per person per hour and workers compensation costs $1.50 per person per hour.
I have to work out the rates based on what Primo pay me under the labour service contract. Primo don’t pay enough.
MR COURTNEY: I understand that it can be an expensive business but you need to follow the Award as you are the employer. You cannot go under the Award regardless of what Primo pay you.
What about the workers who have told me they are working under ABNs?
MR SHI:Not [sic] I don’t agree with that. My workers are not ABN holders.
Mr Courtney deposed that at that meeting he was told by the solicitor acting for Mr Shi and/or Raying Holding (a Ms Ying Zhang) that Mr Shi had negotiated Raying Holding’s labour hire agreement with Primo.
Monique Tudman
Ms Tudman was a Fair Work Inspector. Ms Tudman deposed that in 2010 she received a complaint in relation to a company called Regional Workforce Pty Ltd. On 22 June 2010 she received an email from “Jane Xue of Regional Workforce” regarding that complaint and saw from that email that another representative of Regional Workforce, Michael Shi, had provided to Ms Xue records which Ms Xue had then forwarded to her. On 28 June 2010 Ms Tudman sent a letter to Ms Xue which, amongst other things, referred to the commencement of modern awards and the NES on 1 January 2010 and said:
May I take this opportunity to encourage you to ensure that the entitlements of all your employees are being met, and urge you to rectify any underpayments that may have occurred.
Zu Neng Shi
Mr Shi was Raying Holding’s General Manager. Although Mr Shi agreed that he became general manager of Raying Holding in 2010, he denied having been the “boss”. He initially said that he did not know who the boss was but then said that it was Ms Lu, Raying Holding’s director and shareholder and a friend of his. However, he also said that he had been the most senior person dealing with Primo in 2013, in the period after being approached by the AMIEU, and that, as general manager, he was in charge of “the majority of duties”. Mr Shi said that Raying Holding had four employees in its Auburn office.
Mr Shi deposed that in March 2013 Raying Holding received a letter from the AMIEU. Mr Shi deposed that prior to receiving that letter he had not been aware that the Employees’ work was governed by an industrial award or that there was an award which set out minimum wages applicable to the Employees. He deposed that he had not known that the amounts paid by Raying Holding were less that the award’s minimum rates. Mr Shi also deposed that he “did not know when Wei Hua Huang and Daying Quan were actually employees during the period that they were paid as independent contractors”. Presumably, “when” was an erroneous inclusion in that sentence. Certainly in his written submissions, Mr Shi contended by reference to this passage that he had expressly denied having known at the time that those men were employees.
Mr Shi deposed that after receiving the AMIEU’s letter, Raying Holding arranged to meet AMIEU officers in order to obtain more information and to make arrangements to rectify the underpayments. He deposed that Raying Holding had co-operated with the AMIEU, and later with the Ombudsman, in order to pay the Employees the correct award rates and to calculate the back payments owed to them. He deposed that that process had taken some time and so for a period Raying Holding had continued to pay the Employees the incorrect rates. He deposed that once the proper rates were established Raying Holding had made back payments to the Employees.
When first asked whether he knew Ms Xue, Mr Shi’s response was that he had “heard about that person” and when asked if she worked at Raying Holding he said:
I don’t know much about it.
However, he subsequently agreed that she reported to him on matters including the engagement of abattoir workers and later described her as a very good friend without whom, together with his son Michael, he could not run his businesses.
Mr Shi agreed that he had previously been involved in other labour hire companies, including in a management capacity, but was uncertain of the extent and details of such involvements. He also said that he was unable to recall whether he had been involved in the management of labour hire companies other than Raying Holding and two of the four other companies which were specifically raised with him in cross-examination. He explained that this lack of recollection arose out of the fact that he had been involved with many and various undertakings since he came to Australia in 1989, and the further fact that the activities in question had occurred some years earlier.
Although Mr Shi said that he had negotiated the original labour hire agreement with Primo in 2010 or 2011, as well as the 2013 agreement, he denied any decision-making function, saying that he only dealt with beef import and export businesses, and that Ms Lu had made decisions based on his reports to her.
Mr Shi said that Raying Holding, and he as its general manager, had adopted the practice of arranging for its abattoir workers to have ABNs because that was what the two other local labour hire businesses did. However, he said, at that time he had not understood that being paid “by ABN” was different from being paid as an employee. He agreed that Raying Holding’s office employees did not operate with ABNs or pay GST but said that he did not understand the significance of this until later.
The burden of much of Mr Shi’s evidence was that he was in charge of major issues but not details such as employees’ invoicing practices, the requirements of industrial law or the detail of the work performed by Raying Holding’s employees when they were at the abattoir. Nevertheless, he said that he received records from Primo about the times when the Raying Holding employees worked and the amounts they were paid, and knew that they were not paid for public holidays they did not work. He acknowledged that the recipient-created tax invoices which referred to Messrs Huang and Quan and which were included in exhibit 1 had been prepared by Raying Holding and conceded that he had known that Raying Holding prepared invoices for Mr Huang. He said that he knew at least in 2011 and 2012 that Raying Holding did not pay income tax for those workers for whom it prepared recipient-generated tax invoices.He also acknowledged that payments to these employees included an amount for GST, and said that “[w]e paid by ABN, so no super”.
At about the time that the AMIEU approached Raying Holding with its concerns over its employment practices, the company entered into a written agreement with Primo dated 12 March 2013 which, amongst other things, required Raying Holding to:
… use only its direct employees in providing temporary labour hire workers, and will not use any assignee, agent or subcontractor unless prior written consent to do so is obtained from Primo …
Mr Shi said that he approved that agreement and it was provided to Ms Lu for her signature together with advice about the outcome of the negotiation with Primo. However, he had not read the document before it was signed and did not learn until afterwards that it required Raying Holding to use its own employees and not contractors. He similarly said that he was unware of a provision in that agreement which required Raying Holding to comply with industrial laws, including ones concerning workers’ wages and entitlements. He said that he had not read the relevant portion of the agreement because he had only been in charge of negotiating rates, describing the issue to which he had been taken as a detail for which he did not have responsibility.
Others
Evidence was also adduced from Emma Travers, a Fair Work Inspector, and from Mr Huang’s daughter, Kim.
FINDINGS ON BACKGROUND FACTS
I accept and find as facts the matters set out in the agreed statement of facts and repeated above at [18]-[33].
In addition to what was admitted in the statement of agreed facts, the evidence which was referred to in the Ombudsman’s written submissions and which I accept, also disclosed the following matters:
a)Mr Shi was at all relevant times Raying Holding’s general manager;
b)Mr Shi was known to Mr Huang and Mr Quan as “the boss”, the “big boss” or the “boss of the agent”;
c)Mr Shi had a detailed knowledge of the cost to Raying Holding of employing workers such as the Employees;
d)Mr Shi determined Raying Holding’s employees’ pay rates and did so by reference to the expenses it incurred and what was paid by Primo;
e)Mr Shi was aware of the Employees’ total work hours and where in the abattoir they worked;
f)Mr Shi negotiated the 2013 labour hire arrangements with Primo, which included the labour hire agreement’s pay rates;
g)Mr Shi was involved in Mr Huang and Mr Quan’s procurement of ABNs; and
h)Mr Shi told Mr Quan that superannuation contributions would not be made for him.
In accepting that evidence and the conclusions to be drawn from it, I have kept in mind the admission that Mr Shi was, at all material times, principally responsible for the overall direction, management and supervision of Raying Holding’s operations and his evidence that he was in charge of “the majority of duties”. I have also taken note of Mr Shi’s evidence that Raying Holding’s office had only four employees, suggesting a very flat management structure, and the degree of his knowledge of the day to day practices of Raying Holding set out earlier at [52].
The admissions and evidence, in particular the evidence to which I have just referred, also support the following inferences and I make findings accordingly:
a)Mr Shi was the person who made relevant decisions on behalf of Raying Holding regarding the engagement and remuneration of employees;
b)Mr Shi authorized Raying Holding to offer employees payment as independent contractors;
c)Mr Shi was Raying Holding’s point of contact with Primo regarding the former’s provision of labour to it; and
d)when Mr Shi attended meetings with the AMIEU, he spoke on behalf of Raying Holding.
MATTERS IN ISSUE
Relevantly, Mr Shi denied or did not admit that:
a)he had been aware that Raying Holding was required to comply with Commonwealth workplace relations legislation and industrial instruments;
b)he had been aware that Raying Holding was required to pay the Employees the entitlements referred to above at [22]-[26];
c)he had been aware of the particular hours worked by industrial employees;
d)he had been aware that the Employees had not been paid all the entitlements referred to above at [22]-[26]; and
e)he had been aware that the records in relation to the Employees’ employment referred to above at [29]-[30] had not been kept by Raying Holding.
Applicant’s submissions
The Ombudsman submitted that Mr Shi was responsible for Raying Holding’s overall management and direction, was its “hands and brains”, alter ego and controlling mind and the human agent through which it had committed the contraventions of the FW Act. She also submitted that the conduct of Raying Holding had been engaged in on its behalf by Mr Shi. The Ombudsman submitted that for those reasons Mr Shi had been involved in each of Raying Holding’s contraventions.
The Ombudsman submitted that Mr Shi’s knowledge concerning Raying Holding’s contraventions was such that he could be liable as an accessory to its contraventions because he:
a)was the general manager at all relevant times and principally responsible for Raying Holding’s overall direction, management and supervision;
b)was known to Mr Huang and Mr Quan as “the boss”, “big boss” or “boss of the agent”; and
c)made relevant decisions on behalf of Raying Holding regarding the engagement and remuneration of its employees, including Mr Quan and Mr Huang. Specifically he:
i)made decisions regarding the basis on which persons engaged to work for Raying Holding would be engaged;
ii)made decisions regarding the terms and conditions upon which persons were engaged;
iii)was Raying Holding’s representative in all dealings with employees in the lead-up and during their employment;
iv)determined the terms and conditions of Raying Holding’s employees’ employment;
v)had intimate knowledge of Raying Holding’s costs of employing employees;
vi)determined employees’ rates of pay based on what Primo paid to Raying Holding;
vii)knew the hours worked by employees and the areas of the abattoir’s operation in which they worked;
viii)determined deductions made from payments for accommodation expenses;
ix)proposed or authorised the proposal of the rates of pay to be paid by Primo to Raying Holding;
x)was involved in arranging accommodation in Scone for Raying Holding’s employees;
xi)applied for or authorised the applications for ABNs for Mr Huang and Mr Quan;
xii)offered, or authorised an offer, to Mr Huang and Mr Quan to be employed under ABNs as contractors;
xiii)informed Mr Quan that he would not be paid any superannuation;
xiv)was Raying Holding’s point of contact with Primo; and
xv)attended a number of meetings with the Ombudsman and the AMIEU and spoke on behalf of Raying Holding.
Sham contracting
The Ombudsman submitted that given the declarations made against Raying Holding and the admissions made in the statement of agreed facts, Raying Holding had failed to negate the presumptions in s.357(1) of the FW Act, namely that it had known the contracts were contracts of employment rather than contracts for services or had been reckless as to whether that was so. It was argued that it could consequently be presumed that when the representations concerning Messrs Huang and Quan’s contracts were made, Raying Holding had the relevant knowledge or was reckless as to the true situation.
The Ombudsman submitted that to establish Mr Shi’s accessorial liability for Raying Holding’s misrepresentations to Messrs Huang and Quan, she only had to show that he had known that Raying Holding understood that the contracts were contracts of employment rather than contracts for services or had known facts from which he should reasonably have concluded that Raying Holding was reckless in its understanding of the nature of the contracts.
The Ombudsman submitted that the evidence established that Raying Holding’s conduct in regard to this contravention was also Mr Shi’s conduct or was at least conduct in respect of which Mr Shi was the relevant decision-maker. In that regard she pointed to the statement of agreed facts, in particular paragraph 90(c), and submitted that it could be inferred from those admissions that the representations made to Mr Huang and Mr Quan had been made by Mr Shi directly and also by Ms Xue on Mr Shi’s authorisation. Paragraph 90(c) of the statement of agreed facts stated:
90.Further to the matters set out at paragraph 10 above, at all relevant times, the second respondent was:
…
(c)the representative of the first respondent in all dealings with the [Employees] in the lead-up to and during their employment; …
The Ombudsman further submitted that Raying Holding could only have acted through Mr Shi and so its knowledge was the same as Mr Shi’s.
The Ombudsman pointed to Mr Shi’s evidence that he had known that Mr Huang and Mr Quan received invoices generated by Raying Holding which had a GST component, that Raying Holding had not deducted income tax from their pay and that it had not made superannuation contributions on their behalf. Referring to the different way Raying Holding’s office staff were remunerated, the Ombudsman submitted that any suggestion by Mr Shi that he was not aware of the difference between payment by way of an ABN and GST and the payment of wages with tax and superannuation was fanciful.
The Ombudsman submitted that those factors also established that Mr Shi had not made enquiries or taken steps to ascertain whether Messrs Huang and Quan’s contracts were contracts of employment rather than contracts for services and had therefore been reckless in those matters.
Underpayments
The Ombudsman submitted that because of his role at Raying Holding, Mr Shi had been aware of the proposed rates of pay and the actual payments made to the Employees, which was sufficient to show that he had been knowingly concerned in its underpayment contraventions.
The Ombudsman submitted that if it was necessary to establish that Mr Shi had had knowledge that an award applied to the employees, it ought to be inferred that at all relevant times he had been aware that an award or other legal instrument setting minimum entitlements had been applicable to the Employees because:
a)he had previously been involved in at least one labour hire business connected with the meat processing industry in which complaints of non-payment of wages had been made;
b)he was closely connected to Ms Xue, who reported directly to him, and to Michael Shi, his son. It was submitted that Ms Xue and Michael Shi had previously been involved in at least one labour hire business in the meat processing industry in which complaints of non-payment of wages had been made and they had been expressly informed that Australian law imposed minimum standards of employment and provided for the application of modern awards to particular industries or occupations; and
c)by March 2013 Mr Shi dealt with Primo on behalf of Raying Holding in connection with the labour hire agreement, cl.5(b) of which required Raying Holding to comply with “industrial laws (including laws regarding the payment of wages and other entitlements to employees)”.
In the alternative to that argument, the Ombudsman further submitted that, prior to March 2013, Mr Shi had been knowingly concerned in Raying Holding’s contraventions because he had been wilfully blind to Raying Holding’s statutory and award obligations as demonstrated by his failure to make enquiries into Raying Holding’s obligations under any award or the FW Act. The Ombudsman submitted that Mr Shi had deliberately shut his eyes to the application of the Modern Award and minimum pay rates, a fundamental aspect of running a labour hire business. She submitted that he had had a number of resources available to him which he had deliberately failed to utilise, including his knowledge and experience in the meat processing industry, his decision-making powers at Raying Holding, in particular his decision concerning the terms and conditions on which the Employees would be engaged, and his access to the agreement with Primo which required Raying Holding to comply with industrial laws in relation to wages. She submitted that Mr Shi had also failed to make enquiries of Primo, Ms Xue or his son concerning Raying Holding’s obligations under the law and had deliberately failed to utilise the resources available to him because knowledge about the Modern Award might have led him to pay higher rates to Raying Holding’s employees.
By reference to Fair Work Ombudsman v Pocomwell Ltd (No.2) (2013) 218 FCR 94, the Ombudsman submitted that for the purposes of proving that Mr Shi had been knowingly concerned in Raying Holding’s underpayment contraventions it was not necessary to establish that he had known that the Modern Award applied to the Employees. In Pocomwell at 136-137 [279]-[283] it was stated that a party could be knowingly involved in a contravention of the FW Act without being aware of the jurisdictional basis for that Act’s application to the circumstances in question.
The Ombudsman also referred to Potter v Fair Work Ombudsman [2014] FCA 187 and Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 and submitted that those cases had been wrongly decided and ought not to be followed to the extent of their holdings that it is necessary to prove that a person had actual knowledge that an award applied in order to be knowingly concerned in a contravention of that award. She submitted that whether an award applied to an employer or employee was a question of law not of fact and the requirement in Potter and Devine Marine was contrary to established authority, including Yorke v Lucas (1985) 158 CLR 661, Giorgianni v The Queen (1985) 156 CLR 473 and Fair Work Ombudsman v Pocomwell Ltd (No.2).
The Ombudsman further submitted that even if Potter and Devine Marine were followed, the facts in this case were distinguishable from the facts in those cases. She argued that, while the alleged accessory in Potter was found to have applied the incorrect instrument, Mr Shi had not been labouring under a mistaken belief as to the operation of the Modern Award, in that the Ombudsman expressly did not assert that he had any actual knowledge of any award applying to the Employees prior to 12 March 2013, but instead had had the requisite knowledge because he had been wilfully blind to the operation of the Modern Award by failing to make relevant enquiries in circumstances where he knew that in Australia minimum rates of pay applied to employees. Nevertheless, the Ombudsman submitted that even before being approached by the AMIEU, Mr Shi had known at all relevant times that an award or other legal instrument setting minimum standards applied.
The Ombudsman submitted that in any event by 12 March 2013, when Mr Shi was expressly advised by the AMIEU that the Modern Award applied to Raying Holding’s business, he had actual knowledge of the application of the Modern Award and was thus “knowingly concerned” in Raying Holding’s subsequent contraventions. She also pointed to Mr Courtney’s unchallenged evidence that on 26 March 2013 he had provided copies of the Modern Award and an information sheet on the NES to Ms Zhang, who attended the meeting as Mr Shi’s or Raying Holding’s solicitor. The Ombudsman submitted that despite that awareness Raying Holding had continued to underpay its employees for a few months with Mr Shi’s knowledge and so he was knowingly involved in the underpayments from 12 or 26 March 2013.
Public holidays
The Ombudsman submitted that because Mr Shi was Raying Holding’s controlling mind and alter ego it should be inferred that he had known that Messrs Huang and Quan did not work on relevant public holidays and were not paid their base rates of pay on those days.
Records and pay slip contraventions
The Ombudsman submitted that it ought to be inferred, given his role in the company, that Mr Shi had known that Raying Holding did not make and keep records in respect of the Employees and did not provide pay slips to the Casual Employees. The Ombudsman also submitted that Mr Shi need not have known of the application of the FW Act to be found to have been an accessory to those contraventions of Raying Holding (cf. Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1).
The Ombudsman argued that as the relevant decision-maker in relation to the Employees’ purported engagements as independent contractors, Mr Shi could “be taken to have intended not to comply with any requirement to make and keep records and provide payslips associated with the engagement of the [Employees] as employees”.This submission appeared to assume that it had been proven or admitted that all of the Employees, not just Messrs Huang and Quan, were employed in sham contracting arrangements. That is not the case and indeed it was not alleged. In the circumstances, I have treated this submission as inviting an inference concerning Messrs Huang and Quan. Even so, it is to be noted that in addresses, the Ombudsman submitted that from at least 12 March 2013 Mr Shi had known that Raying Holding had been paying the Employees as independent contractors and had therefore had the relevant knowledge that Raying Holding, as an employer, had record keeping and pay slip obligations which it ignored.
Second respondent’s submissions
Mr Shi denied having had actual knowledge that Raying Holding was required to comply with workplace relations legislation and industrial instruments or had been required to pay the Employees in accordance with the Modern Award terms it had contravened. He denied having had actual knowledge of the hours worked by the Employees and when they worked those hours, that the Employees had not been paid all of their entitlements or that Raying Holding had failed to keep adequate records.
Sham contracting
By reference to Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346, Mr Shi submitted that for a primary contravener to have contravened the FW Act’s sham contracting provisions that person had to have made a prohibited representation about the nature of a particular contract and to have known, at the time of making the representation, that the contract the subject of the representation was a contract of employment rather than a contract for services, or to have been reckless as to whether that was so. He submitted that for there to be liability under s.550 of the FW Act it was necessary that the alleged accessory:
a)knew that the primary contravener had made the contravening representations while understanding that the contract was a contract of employment rather than a contract for services; or
b)knew facts from which he or she should have reasonably concluded that the primary contravener was reckless in its understanding of the nature of the contract.
Mr Shi submitted that his concession that Raying Holding had contravened s.357(1) did not also amount to a concession that it or he had known that the arrangements were not contracts for services. He submitted that the fact that Raying Holding had not availed itself of the defences in s.357(2) did not mean that it had conceded that those defences were unavailable to it or that it or he had known or had been reckless as to whether the contracts were employment arrangements.
Mr Shi expressly denied knowing at the time that Messrs Huang and Quan were in fact employees. He submitted that he could not be found liable in circumstances where he:
a)lacked the knowledge of the character of the contravention necessary to form the requisite intent; and
b)was honestly ignorant of the circumstances that gave the conduct a contravening character.
He submitted that the Ombudsman’s evidence in support of this contravention was circumstantial and based on inexact proofs, indefinite testimony and indirect inferences.
Mr Shi also submitted that Raying Holding’s contravention in this regard had not wholly been the result of his actions on its behalf. He pointed to his absence from the meeting where certain of the relevant representations were made to Mr Huang and submitted that the Ombudsman needed to establish that he had known that the representations were made and that the maker of the representations knew or was reckless as to the fact that it was an employment contract. Mr Shi submitted that his admission that he had acted as Raying Holding’s representative in all the dealings with Messrs Huang and Quan in the lead up to and during their employment was not a concession that he had made all the representations and that even if that admission amounted to such a concession, it would still not provide a basis for finding that he had had the requisite knowledge.
Underpayment of minimum wages
Mr Shi submitted that in Devine Marine White J found that in order to prove that a person had been “knowingly concerned” in a contravention related to award underpayments it had to be established that the putative accessory had actual knowledge that:
a)the relevant workers performed work for the employer and that they did so as employees;
b)the workers’ work was governed by an industrial award (whether or not the accessory knew of the name of the award);
c)the award stipulated minimum rates of pay; and
d)the amounts the employer paid to the workers were less than the minimum rates in the award.
Mr Shi submitted that the Court was obliged to apply Devine Marine. He submitted that Barker J’s comments in Pocomwell at 137 [281] appeared to be an abbreviated analysis in obiter and ought not be read as a comprehensive statement of the relevant principles or preferred over Potter and Devine Marine.
Mr Shi submitted that there was no direct evidence that he had actual knowledge of the necessary matters. He denied having had actual knowledge that the employment of the Employees was governed by an industrial award, that the award contained minimum rates of pay or that Raying Holding had paid less than those minimum rates of pay. Mr Shi submitted that the test in Potter required an accessory to know of the specific award while the one in Devine Marine appeared to require an accessory to have knowledge of the existence of industrial awards generally. He submitted that on either of those tests, the Ombudsman had failed to make her case in relation to his alleged award-based liability in respect of the period before 12 March 2013. Mr Shi submitted that he had not known of any award, let alone the Modern Award, and the Ombudsman had failed to prove that he had known about the existence of industrial awards generally.
Mr Shi submitted that the Ombudsman’s submission that he had been wilfully blind to the application of the Modern Award because he had failed to make any relevant enquiries ought to be rejected because the Ombudsman had not pleaded the issue and had raised it for the first time in submissions. He submitted that, in any event, it had to amount to a situation where it could almost be said that the accessory “actually knew” and that a finding of that sort had to be based on something greater than recklessness which, he argued, would have required some awareness on his part of the possibility that the relevant obligations existed. He submitted that the evidence did not support such a finding. Mr Shi also submitted that the abundance of resources available to him, his experience in the labour hire industry and his knowledge that Australian laws provided for minimum conditions for workers did not establish that he had been wilfully blind. He submitted that there was no evidence that he had been.
Mr Shi did concede that he had become aware of the application of the Modern Award from March 2013 but submitted that the contraventions were rectified shortly thereafter. He submitted that it could not be said that after being armed with that knowledge he had nonetheless continued with the contravening conduct.
Underpayment of casual loading, overtime and public holiday rates
Mr Shi submitted that in order to prove that he had been an accessory to Raying Holding’s failure to pay casual loadings, overtime and public holiday pay the Ombudsman had to establish that he had had actual knowledge that:
a)the relevant workers performed work for Raying Holding and did so as employees;
b)the work was governed by an industrial award (whether or not he knew of the name of the award);
c)the award stipulated minimum rates of pay;
d)the award stipulated additional payments for casual work and for overtime;
e)the award stipulated additional payments for public holidays not worked; and
f)the amounts Raying Holding paid to the workers were less than the minimum rates in the award.
He submitted that there was no direct evidence that he had had actual knowledge of those matters.
Record keeping and pay slips
In relation to the record keeping and pay slip contraventions, Mr Shi referred to MBF v Cassidy and submitted that the Court had to distinguish between knowledge of the conduct constituting the contraventions and knowledge of the contravening character of the conduct on the basis that the latter, and not the former, was essential to liability as an accessory.
He submitted that, relevantly, Raying Holding’s contravening conduct was its failure to keep required records and to issue pay slips within the time required by the FW Act while the conduct’s contravening character lay in the failure to meet the requirements of the FW Act and FW Regulations. He submitted, therefore, that the essential elements of the contraventions by Raying Holding were its failure to make and keep certain records and to issue pay slips with the prescribed information. He submitted that an accessory did not need to know the minutiae of the statutory or regulatory requirements but did need to have known that there were requirements and that the principal had contravened them.
Mr Shi submitted that, on the evidence, it could not be found that he had known of Raying Holding’s failure to meet its record keeping and pay slip requirements, or that he had been aware of the contravening character of that conduct. He submitted that the evidence only went so far as to say that he had, on one occasion, seen some records about hours and that there was no evidence that he had actually known of the requirement to keep records or what records Raying Holding had kept. He argued that, according to Devine Marine, he had to know not only that there were minimum standards but that they were being breached.
CONSIDERATION
The law
Before a person can be found liable under s.550 of the FW Act for having been “knowingly concerned” in a contravention it must be proved that that person had knowledge of the essential facts constituting the contravention and was an intentional participant in it, the necessary intent being based on knowledge of the essential elements of the contravention: Yorke v Lucas; Australian Competition & Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; Rural Press Ltd v Australian Competition & Consumer Commission (2002) 118 FCR 236; Heydon v NRMA Ltd (2000) 51 NSWLR 1. The accessory need not know that the conduct constituted a contravention: ACCC v Giraffe World at 346 [186]; Rural Press v ACCC at 282, 283 [159], [160]; Heydon v NRMA at 109 [334]. In Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17, speaking of s.550’s equivalent provision in the former Trade Practices Act 1974, the Full Court of the Federal Court said:
It is not necessary to establish any subjective element in relation to a contravention of Pt V of the Act. A contravention may be committed unintentionally. That is to say, a person may contravene a provision of Pt V even though that person does not have knowledge of all of the essential elements that constitute the contravention. However, before any accessorial liability will arise, it is necessary to establish the subjective element of knowledge of each of the essential elements of the contravention. That knowledge may be constructive in the sense that it may be possible to show wilful blindness in relation to the elements of a contravention. However, absent a finding of wilful blindness, it is necessary to establish actual knowledge on the part of a person to whom it is sought to sheet home accessorial liability in respect of a contravention of Pt V. (at [135])
Similarly, a differently constituted Full Court said in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299:
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479–480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E–308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention. (at 308 [26])
The Full Court’s statement in ACCC v IMB Group in part reflects the conclusion reached by Gibbs CJ in Giorgianni v The Queen at 487-488:
My view of the law may be summed up very shortly. No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.
It has not been demonstrated that liability as accessory to a breach of s.357 must be approached any differently. It is true, as Mr Shi submitted, that North and Bromberg JJ said in the Full Court of the Federal Court in Quest South Perth Holdings at 404-405 [257] that for a primary contravener to have contravened s.357 it must, first, have made a prohibited representation about the nature of a particular contract and, secondly, have known at the time of making the representation that the contract in question was a contract of employment, rather than a contract for services, or have been reckless as to whether that was so. Their Honours said (at 405 [258]) that proof that the representation was made presumes the relevant knowledge or recklessness on the part of the primary contravener unless that presumption is displaced in accordance with s.357(2). However, the decision in that case was reversed on appeal in the High Court (Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 256 CLR 137) and the reasoning in question, albeit not relevant to the appeal, was not endorsed by the High Court when it endorsed other “uncontroversial conclusions of law” at 142 [6].
The contravention legislated in s.357(1) involves the comparison of a representation made by an employer with the true nature of an employee’s engagement. Although both parties in this part of the proceeding appeared to accept the proposition that proof of a relevant misrepresentation by a primary contravener implies a presumption of unlawful intent on that person’s part, with great respect to North and Bromberg JJ, I do not agree that that is the proper reading of the section. The question of intent arises out of the defence which is provided in s.357(2), not out of s.357(1) which in its terms is a strict liability provision. It is to be noted that the terms of s.357(1) do not raise questions of motivation for particular conduct, such as were considered in Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500, and that s.357(2) is not a true analogue of s.361(1), the reverse onus provision.
As motivation or intent is not one of the essential facts constituting the contravention which must be proved when alleging a breach of s.357(1), so liability as an accessory to a principal’s contravention of s.357(1) does not require proof that the purported accessory knew what the principal knew. All that need be shown is that the purported accessory had knowledge of the essential facts which make up the contravention, namely that the primary contravener represented to an employee, or to a potential employee, that a contract of employment was a contract for the provision of his or her services as an independent contractor. As the High Court said in Fair Work Ombudsman v Quest South Perth Holdings:
The prohibition in s 357(1) is against an employer making a particular representation to an employee or prospective employee. The prohibited representation concerns the character of the contract, which exists or would exist between the employer and the employee as a contract of employment, under which the employee performs or would perform work. The content of the prohibited representation is that the contract of employment is or would be a contract for services under which the employee performs or would perform work as an independent contractor. (at 143 [14])
It was also stated in Giorgianni v The Queen that as ignorance of the law is not a defence, an accessory need not know that particular matters amount to an offence; it is sufficient that the accessory know the essential matters which comprised the offence committed by the principal. In that case the appellant had been charged with being an accessory before the fact to the culpable driving of another in that it was alleged that he had known that the brakes of his truck, which had been given to another to drive, were defective. The brakes failed and a collision causing deaths resulted. The Chief Justice said of the elements of the offence of being an accessory to a principal’s offence:
Russell on Crime … states that “the bare minimum” which is necessary to constitute a person an accessory before the fact is that his conduct should indicate “(a) that he knew that the particular deed was contemplated, and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed”. The passage is cited with approval in Attorney-General v. Able. There is a strong body of authority which supports the view that knowledge of the facts is necessary before a person can be made liable as a secondary party for the commission of an offence. In Johnson v. Youden, Lord Goddard C.J. stated the position in relation to aiders and abettors as follows:
Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence.
(at 481) (references omitted)
In the same case, Mason J also referred to the reasons of Lord Goddard CJ in Johnson v Youden [1950] 1 KB 544, noting that the proposition they advanced, that a person cannot be convicted of secondary participation at common law unless he or she knows the facts which must be proved to show that the offence has been committed, had been endorsed by the House of Lords and embraced in Australia. His Honour relevantly relied at 494 on a further passage from Lord Goddard CJ’s reasons for judgment in Johnson v Youden:
If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, “I knew of all those facts but I did not know that an offence was committed,” would be allowing him to set up ignorance of the law as a defence.
Also in Giorgianni v The Queen, Wilson, Deane and Dawson JJ referred to the culpable driving offences committed by the driver of the truck, saying:
It is those offences which the appellant was alleged to have aided, abetted, counselled or procured. To have done so he must have intentionally participated in the principal offences and so must have had knowledge of the essential matters which went to make up the offences of culpable driving on the occasion in question, whether or not he knew that those matters amounted to a crime … (at 500)
Their Honours further said:
For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. (at 506)
That reasoning was applied in Yorke v Lucas at 677:
As s.75B [of the Trade Practices Act 1974 as it stood at the material time and to which s.550(2) of the FW Act is relevantly identical] transports the criteria of the criminal law into the definition of the parties who are civilly liable for contraventions of Pts IV and V, the criminal law definition of parties to an offence furnishes the definition of those who are civilly liable as a party to a contravention under s.75B(c). The requirement of knowledge under par. (a) is no less stringent under par. (c).
As s.550 of the FW Act is relevantly identical to s.75B of the former Trade Practices Act, it is appropriate to apply the High Court’s reasoning just quoted to s.550. That is to say, s.550 transports the criteria of the criminal law into the definition of the parties who are liable for contraventions of the FW Act’s civil remedy provisions with the result that the criminal law definition of parties to an offence furnishes the definition of those who are civilly liable as a party to a contravention of one or more of those FW Act provisions. As ignorance of the law is not a defence to an allegation that a person was an accessory to an offence, by analogy it is appropriate to infer that ignorance of the law is also not a defence to an allegation that a person was an accessory to a contravention of a civil remedy provision of the FW Act. In that connection, it might be noted that no submission was made that either knowledge or ignorance by Mr Shi of the sham contracting positions of the FW Act would have any bearing on his potential liability as an accessory for Raying Holding’s contraventions of s.357 of that Act.
Although not a statute, an award is part of the law. This occurs by force of its adoption by the FW Act, which makes the directions contained in it binding and enforceable in law: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420, 421, 425, 455; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 516 [11]; Proprietors of Daily News Ltd v Australian Journalist’ Association (1920) 27 CLR 532 at 537; Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 494-496, 499. In Ex parte McLean (1930) 43 CLR 472 it was said:
The award itself is, of course, not law, it is a factum merely. But once it is completely made, its provisions are by the terms of the Act itself brought into force as part of the law of the Commonwealth. In effect, the statute enacts by the prescribed constitutional method the provisions contained in the award. (at 479 per Isaacs CJ and Starke J)
In that early consideration of the operation of s.109 of the Constitution, a State Act was found to be invalid to the extent of its inconsistency with a Federal industrial award. Dixon J said:
… the instrument itself is … not “a law of the Commonwealth” within the meaning of those words in sec. 109. Sec. 109 cannot, therefore, operate directly upon it so as to render a State law invalid because it is inconsistent with the intentions which the arbitrator expresses in the award. But these considerations do not end the matter. They do establish that if State law is superseded it must be upon the ground that the State law thereupon becomes inconsistent with the meaning and effect of the Commonwealth Conciliation and Arbitration Act itself. But the provisions of that Act itself, which establish awards made under its authority, may have a meaning and effect consistently with which State law could not further affect a matter for which such an award completely provides. If the Act means not only to give the determinations of the arbitrator binding force between the disputants but to enable him to prescribe completely or exhaustively what upon any subject in dispute shall be their industrial relations, then sec. 109 would operate to give paramountcy to these provisions of the statute, unless they were ultra vires, and they in turn would give to the award an exclusive operation which might appear equivalent almost to paramountcy. (at 484)
In Clyde Engineering v Cowburn at 495, in a passage later cited in Jemena Asset Management v Coinvest, Isaacs J quoted Lord Alverstone CJ saying in Willingale v Norris [1909] 1 KB 57:
If it be said that a regulation is not a provision of an Act, I am of opinion that R. v. Walker is an authority against that proposition. I should certainly have been prepared to hold apart from authority that, where a statute enables an authority to make regulations, a regulation made under the Act becomes for the purpose of obedience or disobedience a provision of the Act. The regulation is only the machinery by which Parliament has determined whether certain things shall or shall not be done. (at 64) (reference omitted)
In Jemena Asset Management v Coinvest the High Court cited the advice of the Privy Council in Co-operative Committee on Japanese Canadians v Attorney-General (Can) [1947] AC 87 that “law”:
… is a general term which includes not only statutes but also orders and regulations made under statutes (at 106)
in support of the following contemporary statement of the relevant law:
The expressions “a law of the State” and “a law of the Commonwealth” in s 109 are sufficiently general for s 109 to be capable of applying to inconsistencies which involve not only a statute or provisions in a statute, but also, as mentioned, an industrial order or award, or other legislative instrument or regulation, made under a statute. (at 523 [38])
Thus it could be said in Bell v Gillen Motors (1989) 24 FCR 77 at 84 that the making of an award is the product of a legislative function, one which is now exercised by the Fair Work Commission.
It was not expressly contended by Mr Shi but might be inferred from his arguments, in particular the argument based on Potter and Devine Marine concerning whether he had to be aware of the Modern Award or indeed of any award before he could be liable as an accessory for a contravention of it, that his position was that an award is to be treated differently from a statute or regulation and that ignorance of an applicable award is or may be a defence to an allegation of accessorial involvement in its contravention. I observe that nothing was said in this connection concerning whether s.55 of the FW Act was engaged in this case and, if so, how it might operate. As recorded earlier, the Ombudsman’s position was that Potter and Devine Marine were wrongly decided.
The material reasoning in Potter is binding on me, being an appeal from various related decisions of this Court. In that case Cowdroy J held that to have been liable as an accessory to certain alleged underpayment contraventions of a notional agreement preserving a state award (“NAPSA”), the appellant Mrs Potter had to have known that the NAPSA applied to the employees in question. In Potter Cowdroy J held that an alleged accessory must have known not only of the existence of the relevant award but also that it applied to the employees in question. His Honour said:
To be ‘knowingly concerned’ in a contravention, the alleged accessory must have actual knowledge of the essential facts that constitute the contravention: Yorke v Lucas (1985) 158 CLR 661 at 670. The difficulty in the present case is whether Mrs Potter was required to have actual knowledge of, or be wilfully blind to, the fact that Clerical NAPSA applied to the Employees.
The primary submission of the FWO is that Mrs Potter did not need to know that the Clerical NAPSA applied; rather, the only essential fact was that the Employees were not remunerated at the rate set under the provisions of the Clerical NAPSA. This is said to be because it is not necessary that an accessory know that an offence has been committed: Giorgianni v The Queen (1985) 156 CLR 473 at 506.
Knowledge that the Clerical NAPSA applied to the Employees is not identical to knowledge that a failure to pay the Employees in accordance with the Clerical NAPSA constitutes a breach of a civil remedy provision, although it is undeniable that the difference is a small one. The Court finds that, to be an accessory to the underpayment contraventions, Mrs Potter must have known the Clerical NAPSA applied to the Employees. It is not difficult to imagine a situation in which directors of a company honestly but mistakenly arrange for the company’s employees to be paid under an incorrect award. There would be no doubt that the company had underpaid its employees, and by virtue of that fact, contravened the FW Act. If the position were as the FWO submits however, the directors would be liable as accessories to those contraventions simply because they knew how much the employees were being paid and because they had knowledge of the existence of the applicable award, even though they honestly believed that such award did not apply. (at [79]-[81])
In Devine Marine, White J followed Potter saying:
… Without knowledge that an Award is applicable, it is difficult to see how a finding could be made that the accessory had intentionally participated in the contravention: see Yorke v Lucas at 670.
… knowledge that there is an award which is applicable which prescribes minimum rates or entitlements is a factual element necessary for the establishment of the accessory’s intention. (at [187]-[188])
As Judge Riley said in Director of the Fair Work Building Industry Inspectorate v Vic Metro Brick and Blocklaying Pty Ltd & Ors [2015] FCCA 2266 when discussing Devine Marine:
The reference to “an Award”, in context, can only mean the particular award. That was the whole point of paragraph 80 of Potter. (at [193])
I therefore conclude that to be liable as an accessory to Raying Holding’s contraventions of the Modern Award, Mr Shi had to have known at relevant times that the Modern Award was applicable to the Employees’ employment.
What Mr Shi knew
Generally
Mr Shi’s oral evidence largely reflected his denials and non-admissions referred to earlier in these reasons at [59]. However, the argumentative way he gave his evidence in cross examination, together with his frequent lack of recall and what appeared on occasions to be evasiveness, for instance his lack of frankness concerning whether an agreement was in place between Raying Holding and Primo in 2013 which he later conceded he had negotiated himself in about 2011, led me to doubt the reliability of his evidence generally and his claims to have been unaware that Australia had a minimum wage regime in particular. I also note that Mr Shi appears to have told an untruth to Mr Courtney concerning whether Raying Holding’s workers had ABNs (see [42] and [51] above).
My concerns were increased by Mr Shi’s evidence that he had raised the question of minimum rates with his then-employer when he was working as a carpenter early in his time in Australia. This evidence directly contradicted his earlier oral evidence that he had been unaware that employees in Australia had certain rights, including a right to a minimum rate of pay. Further doubt was cast on the accuracy of Mr Shi’s evidence by the following exchange:
MR CHIN:Okay. To sum up, this is your evidence on oath to this court. Before you were approached by the union in 2013, for 27 [sic] years in Australia you did not understand, as a general proposition, that employees in Australia had a legal right to a minimum rate of pay.
MR SHI:So I can tell you again that I heard about it but I didn’t know the details of it, like how much was the minimum rate, which industry it applies to and exactly how much was the minimum rate. I had impression of that.
MR CHIN:Yes, of course you had an impression of that. Of course you heard about it. And those matters – you made no attempt to inquire about those matters in respect of the abattoir workers at Scone.
MR SHI: That’s correct.
I consider it quite unlikely that anyone who has lived in Australia for more than twenty years and has worked for that period in Australia, as it appears Mr Shi had by 2010, would be unaware of the existence of industrial awards and the fact that they regulate many employment relationships. As to Mr Shi’s particular circumstances, I note his evidence that in 2008 and 2009 he was involved in the management of a labour hire company which supplied staff to the meat processing industry. He also admitted in the statement of agreed facts that he had knowledge of, and experience in, the Australian meat processing industry as a result of having participated in the operation of other labour-hire companies responsible for placing overseas workers in Australian abattoirs.
These matters lead me to reject Mr Shi’s evidence that he was unaware until he was contacted by the AMIEU that the Employees’ work was governed by an industrial award or that there was an award which set out minimum wages applicable to the Employees. I conclude it to be probable, given his experience of work and employment in Australia, that Mr Shi believed, correctly, that workers in the meat industry were covered by an award. I find that at all relevant times he was aware of such matters.
I also reject the implication of Mr Shi’s evidence that any ignorance by him of aspects of the Modern Award was the result of his focus on large issues rather than on matters of detail. His evidence was that he was in charge of “the majority of duties” and he admitted in the statement of agreed facts that he was principally responsible for the overall direction, management and supervision of Raying Holding’s operations. Being aware that workers in the meat industry were covered by an award, as I have found he was, I further find that Mr Shi chose to discharge his functions at Raying Holding, such as negotiating the terms of the 2013 labour hire agreement and, presumably, its predecessor, without reference to the applicable award. Given his responsibilities at Raying Holding and the knowledge gained from his own work history, notwithstanding his submissions on this point I conclude that any ignorance on Mr Shi’s part of details of the Modern Award was the result of wilful blindness on his part. I infer that he chose not to inform himself because the knowledge gained would be inconvenient. In that regard, in a passage quoted in Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681 and Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456, the Privy Council advised in The Zamora No 2 [1921] 1 AC 801 that:
… a man is said not to know because he does not want to know, where the substance of the thing is borne in upon his mind with a conviction that full details or precise proofs may be dangerous, because they may embarrass his denials or compromise his protests. In such a case he flatters himself that where ignorance is safe, ‘tis folly to be wise, but there he is wrong, for he has been put upon notice and his further ignorance, even though actual and complete, is a mere affectation and disguise. (at 812)
Such ignorance is tantamount to and bespeaks knowledge: Giorgianni v The Queen at 487 and 495; Richardson & Wrench v Ligon No 174 at 694; Fair Work Ombudsman v South Jin at [231]-[233].
Also relevant to the extent of Mr Shi’s knowledge of facts relevant to this proceeding was his evidence that although Raying Holding’s abattoir workers operated with ABNs and payments to them included GST, Raying Holding’s office staff had different arrangements. It was not apparent from Mr Shi’s evidence why this distinction existed but plainly he was aware of it notwithstanding his evidence in cross-examination that he did not concern himself with the minor details of Raying Holding’s operations. This knowledge was in fact consistent with Mr Shi’s other evidence that he was in charge of “the majority of duties” and his admissions in the statement of agreed facts concerning his responsibility for Raying Holding’s operations. Having regard to all those matters, I am not persuaded by Mr Shi’s denials of awareness of the details of Raying Holding’s operations relevant to this proceeding and conclude that he was aware of all relevant facts.
Sham contracting
As Mr Shi stressed in his submissions, the nature of the conduct prohibited by s.357 of the Act is misrepresentation of a contract of employment as a contract for services, not the entry into engagements which purport to be contracts for services when they are really contracts of employment. Nevertheless, in the statement of agreed facts it was relevantly agreed that:
a)Raying Holding contravened s.357(1) of the FW Act by misrepresenting to Wei Hua Huang from March 2011 to June 2012 and Daying Quan from August 2011 to October 2012 that their employment contracts were independent contracting arrangements; and
b)Mr Shi was Raying Holding’s representative “in all dealings with the [Employees] in the lead-up to and during their employment”.
The latter matter was a formal admission and, although Mr Shi did not seek leave to withdraw it, he did endeavour to restrict its scope of operation such that it would not amount to an admission that he had personally made the relevant representations to Messrs Huang and Quan. The evidence found in the Ombudsman’s record of interview with Mr Huang, which is part of exhibit 1, does support a conclusion that it was Ms Xue, rather than Mr Shi, who made the relevant representation to Mr Huang at their initial meeting but it also makes it clear that Mr Shi, who Mr Huang described as the “boss”, had directed Mr Huang to deal with Ms Xue and it was agreed in the statement of agreed facts that Ms Xue reported directly to Mr Shi. Mr Quan’s record of interview with the Ombudsman, which is also part of exhibit 1, records that Mr Shi, described by Mr Quan as “the person … in charge” and the “big boss”, was present at Mr Quan’s recruitment interview, as was Mr Shi’s “wife”, presumably Ms Xue. Based on that evidence, I accept that Mr Shi was aware of and played a part in the recruitment of those men. Consequently, I am satisfied that Mr Shi was aware of the representations which Raying Holding was to make, and it was admitted did make, to those men concerning the nature of their engagements.
Given the apparent fact that staff in Raying Holding’s office were engaged as employees and the further fact that Mr Shi had himself been employed, or in business, in Australian for more than two decades, I do not believe his claims to have been unaware of the significance of ABNs in the workplace context and I am satisfied that he knew, at the time, that the contracts proposed to Messrs Huang and Quan were contracts for services rather than contracts of employment. The general circumstances, such as Mr Shi’s knowledge that Messrs Huang and Quan submitted invoices for payment, point to such knowledge. A particular marker of that knowledge was Mr Shi’s advice to Mr Quan that superannuation contributions would not be made for him and his evidence that the basis on which Messrs Huang and Quan were paid meant that superannuation contributions were not made for them. Those statements reveal an understanding of a standard Australian employment entitlement and one which I do not believe Mr Shi would have raised with Mr Quan if he had not been aware that, broadly speaking, compulsory superannuation contributions are made for employees but not contractors.
More importantly, however, Mr Shi admitted in the statement of agreed facts that he was the person who determined the terms and conditions of the Employees’ employment. In that connection it is to be recalled that it was agreed that:
(a)The [Employees] performed duties which did not require any particular skills, qualifications or experience;
(b)the [Employees] were required to perform all of their work at the Abattoir;
(c)[Raying Holding] determined the level and form of remuneration paid to each of the [Employees] and their hours of work;
(d)the [Employees] worked alongside employees of Primo and were performing the same or similar tasks as employees of Primo;
(e)the [Employees] provided no tools or equipment of their own to be used in supporting the operations of [Raying Holding];
(f)the [Employees] did not conduct a business in their own right in that:
(i)the [Employees] did not sub-contract their duties and were not permitted to engage any other person to carry out their work for [Raying Holding];
(ii)the [Employees] worked exclusively at the Abattoir for [Raying Holding];
(iii)the [Employees] did not advertise or otherwise promote their availability to perform work; and
(iv)the [Employees] were paid for the hours worked each week rather than tasks completed, and were not required to invoice [Raying Holding] to ensure they would be paid.
The matters recorded in paras.(b), (c), (d), (e) and (f)(i), (ii) and (iv) can be considered to have been terms and conditions of the Employees’ employment and thus matters of which Mr Shi has agreed he was aware. Those matters evidence that Messrs Huang and Quan were, indeed, employees and not independent contractors. Consequently, even if Mr Shi was not subjectively aware that the contracts were, in reality, contracts of employment, he knew the matters which show that that is what they were.
Modern Award underpayments
At [56] above I found that Mr Shi determined the Employees’ pay rates and did so by reference to the expenses Raying Holding incurred and what it was paid by Primo. I also found that Mr Shi was aware of the Employees’ total work hours and where in the abattoir they worked. I therefore find that he was aware of the facts evidencing the agreed underpayments of minimum wages, casual loading and overtime.
Public holidays
Given my findings concerning Mr Shi’s significant role in the running of Raying Holding and his concessions that Primo supplied him with records concerning when workers worked and also that he knew that workers were not paid for public holidays they did not work, I conclude that he knew that Messrs Huang and Quan did not work on relevant public holidays and were not paid their base rates of pay on those days.
Records and pay slip contraventions
I also infer from Mr Shi’s overall knowledge of Raying Holding’s operations and, in particular, from his knowledge that Messrs Huang and Quan were ostensibly engaged as independent contractors with ABNs that he also knew the facts which demonstrate that the prescribed employee records were not kept for them.
I also find, based on my conclusion that Mr Shi was aware of all relevant facts, that he knew that the prescribed employee records were not kept for the other employees the subjects of this proceeding, the Casual Employees, and that those employees were not given pay slips.
Ombudsman’s allegations
Sham contracting
As knowledge of the content of the FW Act and awareness of what the primary contravener knew are not elements of an allegation of accessorial involvement in a principal’s breach of s.357 of the FW Act, what the Ombudsman had to prove in order to make out her allegation that Mr Shi was an accessory to Raying Holding’s contraventions of that section was that at relevant times he had knowledge of the essential matters constituting the company’s contraventions and was an intentional participant in them. Those matters were, first, that Mr Huang and Mr Quan, or either of them, was to be an employee of Raying Holding and, secondly, that Raying Holding represented to either or both of them that the contract of employment proffered was a contract for the provision of services as an independent contractor.
As concerns the second point, I have found that Mr Shi did know of the representations which Raying Holding was to make and did make to Messrs Huang and Quan concerning the nature of their engagements.
As concerns the first point, I have found that Mr Shi knew the terms and conditions of the Employees’ engagements which evidenced that those engagements, specifically those of Messrs Huang and Quan, were contracts of employment. As a result, even if Mr Shi did not appreciate that those matters were indicia of employment and thus that contraventions of s.357 of the FW Act were being committed, for the purposes of s.550 of the FW Act he was nevertheless knowingly concerned in the contravention of s.357 represented by Raying Holding’s conduct and thus was involved in those contraventions and consequently deemed to have contravened s.357 accordingly.
The outcome is no different should I be incorrect in my understanding of s.357 such that liability as an accessory to its breach does require proof that the purported accessory had knowledge of what the primary contravener knew. The outcome is no different because, given the nature and scope of his role, together with his actual participation or other involvement in relevant events or conduct, I find that anything material to this case which was known by Raying Holding was also known by Mr Shi and vice versa.
Modern Award
I am prepared to accept that Mr Shi did not know the detail of the Modern Award, or perhaps even its name. However, as already stated, I do not accept his claims to have been ignorant of the fact that workers in the meat industry were covered by an award. I have also found that any ignorance on his part of the detail of the Modern Award was the result of his own wilful blindness. These matters are sufficient to find that Mr Shi knew the facts material to Raying Holding’s award contraventions which is, in turn, sufficient to sustain a finding that he was involved in those contraventions for the purposes of s.550 of the FW Act.
Further, by the time the AMIEU had written and spoken to him in 2013 Mr Shi knew with certainty which award applied to the Employees and that Raying Holding was in contravention of it. I accept that, once approached by the union, Mr Shi and Raying Holding set about rectifying the continuing underpayments and correcting past underpayments. Nonetheless, for a period the underpayments continued and Mr Shi was involved in those contraventions.
Public holidays
I have found that Mr Shi knew that Messrs Huang and Quan did not work on relevant public holidays and were not paid their base rates of pay on those days. He was therefore involved in Raying Holding’s contraventions of s.116 and 44 of the FW Act.
Records and pay slip contraventions
Although Mr Shi submitted that knowledge of minimum standards of record keeping and provision of pay slips was one of the essential facts which must be proved when alleging liability as an accessory to contraventions of ss.535 and 536, I reject that contention as without support in the cases and contrary to the authorities cited earlier at [99]-[103]. As I have found that Mr Shi knew the facts which supported the declarations referred to earlier at [1(f)-(g)], I therefore find that he was involved in those contraventions too.
Standard of proof
In making the above findings, I have kept in mind s.140 of the Evidence Act 1995 and the antecedent common law which informs it.
CONCLUSION
I find that Mr Shi was involved in Raying Holding’s contraventions of the FW Act particularised in [1(a)-(e) and (g)] above because he was knowingly concerned in those contraventions. I make the same finding concerning [1(f)] above but in respect of the period 14 March 2011 to 5 July 2013, rather than 12 March 2011 to 5 July 2013, to reflect Mr Huang’s agreed start date of 14 March 2011.
The matter will be listed for directions in connection with the issue of penalty.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 12 September 2017
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