Fair Work Ombudsman v Sinpek Pty Ltd (in Liquidation) and Ors (No.3)

[2020] FCCA 88

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SINPEK PTY LTD (IN LIQUIDATION) & ORS (No.3) [2020] FCCA 88

Catchwords:
INDUSTRIAL LAW – Whether the second and third respondents were knowingly involved in the contraventions by the first respondent employer now in liquidation – Modern Award – retail manager – console operators – Level 4 contraventions minimum hourly rates – loading rates – Saturday rates – Sunday rates – holiday rates – overtime rates – annual leave – termination minimum period of notice – unreasonable spending requirement to pay for theft of fuel and tax refund – failure to keep records – failure to provide pay slips – knowing involvement established by second and third respondents – compensation – declarations made.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 90, 99,117, 325, 535, 536, 539, 550

Fair Work Regulations 2009 (Cth), cl.3.36

Cases cited:

Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740

Applicant: FAIR WORK OMBUDSMAN

First Respondent: SINPEK PTY LTD (IN LIQUIDATION)

Second Respondent: KAMALDEEP SINGH

Third Respondent: UMA SINGH

File Number: SYG 2187 of 2018

Judgment of: Judge Street

Hearing dates: 6 August, 13 September, 29 November, 23 December 2019, 20 January 2020

Date of Last Submission: 20 January 2020

Delivered at: Sydney

Delivered on: 20 January 2020

REPRESENTATION

Counsel for the Applicant: Mr M Easton

Solicitors for the Applicant: Maddocks

Counsel for the Second and Third Respondents: Mr I Latham

Solicitors for the Second and Third Respondents: Direct Access

ORDERS

THE COURT DECLARES THAT:

1. The Second Respondent was involved, within the meaning of s.550 of the Fair Work Act 2009 (Cth), in contraventions by the First Respondent of:

   (a)s.45 of the Fair Work Act 2009 (Cth) by failing to pay to Mrs Kumari the Minimum Full-time Hourly Rates as required by cl.33.4 of the Modern Award;

   (b)s.45 of the Fair Work Act 2009 (Cth) by failing to pay to Mrs Kumari the Shiftwork Loading Rates as required by cl.42.2 of the Modern Award;

   (c)s.45 of the Fair Work Act 2009 (Cth) by failing to pay to Mrs Kumari the Full-time Saturday Rates as required by cl.43.3(a)(i) of the Modern Award;

   (d)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari the Full-time Sunday Rates as required by cl.43.3(a)(ii) of the Modern Award;

   (e)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari Public Holiday Rates as required by cl.43.3(a)(iii) of the Modern Award;

   (f)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari overtime rates for overtime hours worked between Monday to Saturday as required by cl.43.4(a)(i) of the Modern Award;

   (g)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari overtime rates for overtime hours worked on Sundays as required by cl.43.4(a)(ii) of the Modern Award;

   (h)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari overtime rates for overtime hours worked on public holidays as required by cl.43.4(a)(iii) of the Modern Award;

   (i)s.44 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari annual leave on termination of employment as required by s.90(2) of the Fair Work Act 2009 (Cth);

   (j)s.44 of the Fair Work Act 2009 (Cth) by failing to pay Mr Dhariwal his personal leave during his employment as required by s.99 of the Fair Work Act 2009 (Cth);

   (k)s.44 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari any amount in lieu of the Minimum Period of Notice as required by s.117(1) of the Fair Work Act 2009 (Cth);

   (l)s.325 of the Fair Work Act 2009 (Cth) by requiring Mr Dhariwal to pay the Fuel Payment for the theft of fuel by customers to the First Respondent;

   (m)s.325 of the Fair Work Act 2009 (Cth) by requiring Mr Dhariwal to pay the Income Tax Amount and/or the Tax Payment to the First Respondent in respect of income tax;

   (n)s.535(1) of the Fair Work Act 2009 (Cth) by failing to keep leave and termination records in relation to Mr Dhariwal and Mrs Kumari as prescribed by regs.3.36(1) and 3.40 of the Fair Work Regulations 2009 (Cth); and

   (o)s.536(1) of the Fair Work Act 2009 (Cth) by failing to provide each of Mr Dhariwal and Mrs Kumari with pay slips between 1 January 2016 and 29 August 2016.

2. The Third Respondent was involved, within the meaning of s.550 of the Fair Work Act 2009 (Cth), in contraventions by the First Respondent of:

   (a)s.45 of the Fair Work Act 2009 (Cth) by failing to pay to Mrs Kumari the Minimum Full-time Hourly Rates as required by cl.33.4 of the Modern Award;

   (b)s.45 of the Fair Work Act 2009 (Cth) by failing to pay to Mrs Kumari the Shiftwork Loading Rates as required by cl.42.2 of the Modern Award;

   (c)s.45 of the Fair Work Act 2009 (Cth) by failing to pay to Mrs Kumari the Full-time Saturday Rates as required by cl.43.3(a)(i) of the Modern Award;

   (d)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari the Full-time Sunday Rates as required by cl.43.3(a)(ii) of the Modern Award;

   (e)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari Public Holiday Rates as required by cl.43.3(a)(iii) of the Modern Award;

   (f)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari overtime rates for overtime hours worked between Monday to Saturday as required by cl.43.4(a)(i) of the Modern Award;

   (g)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari overtime rates for overtime hours worked on Sundays as required by cl.43.4(a)(ii) of the Modern Award;

   (h)s.45 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari overtime rates for overtime hours worked on public holidays as required by cl.43.4(a)(iii) of the Modern Award;

   (i)s.44 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari annual leave on termination of employment as required by s.90(2) of the Fair Work Act 2009 (Cth);

   (j)s.44 of the Fair Work Act 2009 (Cth) by failing to pay Mr Dhariwal his personal leave during his employment as required by s.99 of the Fair Work Act 2009 (Cth);

   (k)s.44 of the Fair Work Act 2009 (Cth) by failing to pay each of Mr Dhariwal and Mrs Kumari any amount in lieu of the Minimum Period of Notice as required by s.117(1) of the Fair Work Act 2009 (Cth); and

   (l)s.536(1) of the Fair Work Act 2009 (Cth) by failing to provide each of Mr Dhariwal and Mrs Kumari with pay slips between 1 January 2016 and 29 August 2016.

THE COURT ORDERS THAT:

1. Pursuant to ss.545(1) and 545(2) of the Fair Work Act 2009 (Cth), the Second Respondent and the Third Respondent jointly and/or severally pay $52,722.48 to the Applicant within 28 days, to be distributed by the Applicant as follows:

   (a)$24,607.96 to Mr Dhariwal; and

   (b)$28,114.52 to Mrs Kumari.

2. Pursuant to s.547(2) of the Fair Work Act 2009 (Cth), the First Respondent and the Second Respondent jointly and/or severally pay interest at the applicable pre-judgment rate as applied in the Federal Court of Australia from 10 August 2016 to date on the amounts payable under order 3 within 28 days which is also to be distributed by the applicant proportionately to Mr Dhariwal and Mrs Kumari based on the respective amounts in order 3.

3. The Court will now proceed with the hearing for the determination of penalty.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2187 of 2018

FAIR WORK OMBUDSMAN

Applicant

And

SINPEK PTY LTD (IN LIQUIDATION)

First Respondent

KAMALDEEP SINGH

Second Respondent

UMA SINGH

Third Respondent

REASONS FOR JUDGMENT

1. This is an application by the statutory appointee under s.687(1) of the Fair Work Act 2009 (Cth) (“the Act”), being the Fair Work Ombudsman (“the Applicant”), for relief against a director of a corporate entity which was placed into voluntary liquidation on 10 July 2019 and his wife who worked as a manager for the corporate entity in respect of the employment of two individuals, Sandeep Singh Dhariwal (“Mr Dhariwal”) and Raman Kumari (“Mrs Kumari”). The applicant is also a Fair Work Inspector within the meaning of s.701 of the Act and has standing to apply for the relief sought under s.539(2) of the Act.

2. The matter was commenced on 6 August 2018. The matter is within the Court’s jurisdiction under s.566 of the Act.

3. The first respondent, Sinpek Pty Ltd (in liquidation), operated a petrol and convenience store at Doyalson NSW trading as Metro Petroleum Doylaston at the time of the alleged contraventions of the Act. At the relevant time, the first respondent engaged in trading at that Doyalson service station seven days a week, 24 hours a day. The café was located inside the service station and served cooked food and beverages. The first respondent sold the service station business at Doyalson and left the site on 26 July 2018.

4. In summary, the applicant alleges contraventions of the Act between 8 January 2015 and 10 August 2016 by the first respondent. It is alleged that two persons, being the second respondent and the third respondent, were involved in the contraventions pursuant to ss.550(2)(a) and (2)(c) of the Act. It is alleged that Kamaldeep Singh, being the second respondent and the director of the first respondent, and/or Uma Devi Singh, being the third respondent, the wife of the second respondent and the manager of the first respondent, were involved in certain contraventions by the first respondent pleaded pursuant to s.550 of the Act as follows:

   a)Failure to pay Sunday penalty rates to Mr Dhariwal;

   b)Failure to pay public holiday rates to Mr Dhariwal;

   c)Failure to pay overtime rates to Mr Dhariwal;

   d)Failure to pay annual leave on termination of employment to Mr Dhariwal;

   e)Failure to pay personal leave to Mr Dhariwal;

   f)Failure to pay payment in lieu of notice of termination to Mr Dhariwal;

   g)Failure to pay minimum full‑time hourly rates to Mrs Kumari;

   h)Failure to pay shift work loading rates to Mrs Kumari;

   i)Failure to pay Sunday penalty rates to Mrs Kumari;

   j)Failure to pay Sunday penalty rates to Mrs Kumari;

   k)Failure to pay public holiday rates to Mrs Kumari;

   l)Failure to pay overtime rates to Mrs Kumari;

   m)Failure to pay annual leave on termination of employment to Mrs Kumari;

   n)Failure to pay payment in lieu of notice of termination to Mrs Kumari;

   o)Requiring Mr Dhariwal to spend or pay money for drive offs in contravention of s.325 of the Act;

   p)Requiring Mr Dhariwal to spend or pay money by giving income tax refund to Mr Singh in contravention of s.325 of the Act;

   q)Failing to keep proper records relating to leave and termination records; and

   r)Failing to provide pay slips for certain periods.

5. The further amended statement of claim alleges accessorial liability by the second respondent in respect of the contraventions pleaded in paragraphs 32, 40, 47, 52, 57, 63, 69, 74, 80, 86, 94, 103(c), 103(h), 106, 115, 126, 129 and 133 of the further amended statement of claim.

6. In respect of the third respondent, it is alleged that the third respondent was involved in the contraventions pleaded in paragraphs 32, 40, 47, 52, 5, 63, 69, 74, 80, 86, 94, 103(c), 103(h), 106 and 133 of the further amended statement of claim.

7. The further amended statement of claim seeks relief in respect of the second respondent by reason of being involved in contraventions within the meaning of s.550 of the Act in the nature of declarations in respect of the contraventions by the first respondent of ss.44, 45, 325, 535 and 536 of the Act.

8. The relief sought by the applicant in the further amended statement of claim also includes declaratory relief in respect of the third respondent being involved in the contraventions within the meaning of s.550 of the Act in the nature of declarations in respect of the contraventions by the first respondent of ss.45, 44 and 536(1) of the Act.

9. The applicant also seeks an order pursuant to ss.545(1) and 545(2) of the Act against the second respondent for the payment of $52,722.48 to be paid to the applicant and then distributed by the applicant in the amount of $24,607.96 to Mr Dhariwal and in the amount of $28,114.52 to Mrs Kumari.

10. No other order was identified in the further amended statement of claim under ss.545(1) or 545(2) of the Act in terms of monetary compensation, other than a prayer for interest under s.547(2) of the Act and an order for the payment of penalties under s.546 of the Act.

11. Six affidavits were read in chief by the applicant and each of the deponents were cross-examined as being:

    a)Alison Mary Power affirmed 3 May 2019, being a former employee at the Metro Petroleum Doyalson;

    b)Inspector Matthew John Edward Longmire affirmed 7 May 2019, being a senior fair work inspector who identified records provided by Mr Dhariwal and Mrs Kumari and records obtained from the first respondent and during an investigation. Those records include a findings of contravention letter dated 19 May 2017, a revised findings of contravention letter sent by email on 15 February 2018, a further findings of contravention letter dated 9 July 2018, calculations of the entitlements and payments made by the first respondent to Mr Dhariwal and Mrs Kumari and previous communications by the second respondent and third respondent with the applicant prior to the alleged contraventions;

    c)Raman Kumari affirmed 3 May 2019, being an employee of the first respondent the subject of alleged contraventions and the wife of Sandeep Dhariwal;

    d)Ronnie Wong affirmed 3 May 2019, being an employee in the Calculations Team of the applicant who provided calculations of the underpayments based on the information provided by Inspector Longmire and the methods used;

    e)Samantha Louise Hoenstok affirmed 3 May 2019, being a former employee of the first respondent at the Metro petroleum Doyalson; and

    f)Sandeep Singh Dhariwal affirmed 3 May 2019, being an employee of the first respondent the subject of alleged contraventions and husband of Raman Kumari.

12. Three affidavits were filed and read in chief by the second respondent and the third respondent, after the close of the applicant’s case in chief, and each of the three deponents were cross-examined, being:

    a)Rajeev Narula affirmed 12 September 2019, being a chartered accountant who prepared certain financial and tax records for the first respondent from MYOB entries and other records and information provided by the second respondent and the third respondent;

    b)Uma Devi Singh affirmed 12 September 2019. In summary, the third respondent alleged her role and all her duties as manager ceased after 3 weeks training of Mr Dhariwal, including payroll responsibilities; and

    c)Kamaldeep Singh affirmed 12 September 2019. In summary the second respondent alleged Mr Dhariwal had responsibility from the beginning of his employment for rostering staff and paying them correctly.

13. The Court has also taken into account the very helpful and skilful written and oral submissions of both counsel.

14. The evidence of Mr Dhariwal and Mrs Kumari, which the Court accepts, explained the duties and activities that they undertook at the Doyalson service station whilst employed by the first respondent and the roles and activities undertaken by the second and third respondents during that employment.

15. For the reasons expanded upon below, the Court finds Mr Dhariwal to be a credible witness. The Court accepts Mr Dhariwal’s evidence as to the circumstances of the making of the statutory declaration and his signing the same on 3 July 2015. The statutory declaration overstated the employment activities of Mr Dhariwal.

16. The employment agreement describing Mr Dhariwal as employed as a Retail Manager also overstated his employment activities. The employment agreement dated 16 December 2014 purporting to engage Mr Dhariwal as a Retail Manager identified duties and responsibilities in cl.4. None of those duties and responsibilities concerned payroll and payment of staff. This is a contemporaneous record which contradicts the evidence of the second respondent and the third respondent as to the shifting of responsibility for payroll and payment of staff to Mr Dhariwal. The Court finds that evidence of the second respondent and the third respondent was not true.

17. The Court accepts Mr Dharwal’s evidence that he was not actually a manager. The Court also accepts Mr Dharwal’s explanation as to the circumstances in which he signed the statutory declaration. The Court accepts Mr Dhariwal’s affidavit evidence where in conflict with the statutory declaration, which the Court finds was prepared by the third respondent without input by Mr Dhariwal. The Court rejects the evidence of the second respondent and the third respondent as to the preparation and making of the statutory declaration by Mr Dhariwal.

18. The Court also accepts the credibility of Mrs Kumari. The Court found the evidence given to the Court by Mr Dhariwal and Mrs Kumari to be truthful. Where the evidence of Mr Dhariwal and Mrs Kumari is in conflict with the evidence of the second respondent and the third respondent, the Court prefers the evidence of Mr Dhariwal and Mrs Kumari. The Court finds, for the reasons expanded upon below, that the second respondent and the third respondent were not truthful witnesses.

19. Given the Joint Issues Paper which was admitted into evidence, it is unnecessary to further summarise the evidence of each of the witnesses which was adduced or the documentary evidence being the 20 exhibits.

20. The second and third respondents admitted that the first respondent was a corporate employer of Mr Dhariwal and Mrs Kumari. The second and third respondents also admitted that the first respondent operated a petrol station, which traded seven days a week on a 24 hour a day basis, and that the café was located inside and sold cooked food and beverages.

21. The second and third respondents accepted that Mr Dhariwal was employed on a full‑time basis. The second and third respondents also accepted that Mrs Kumari worked from time to time for the first respondent as a console operator and that her employment was covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“Modern Award”).

22. The second and third respondents accepted that the first respondent did not pay to either Mr Dhariwal or Mrs Kumari any moneys for unused annual leave on the termination of their employment.

23. There were a number of issues identified in the joint issues paper by the parties which was admitted into evidence as Exhibit O:

    1. The parties agree on the following key matters:

    a. the corporate employer Sinpek Pty Ltd (“Sinpek”) employed Mr Sandeep Singh Dhariwal (“Mr Dhariwal”) and Mrs Raman Kumari (“Mrs Kumari”);

    b. Sinpek operated a petrol station and convenience store at Doyalson, though it no longer does so. The service station traded seven days a week, 24 hours a day. There was a café located inside the service station and it sold cooked food and beverages;

    c. Mr Dhariwal was employed on a full-time basis and his position title was “Retail Manager”;

    d. Ms Kumari worked from time to time for Sinpek as a console operator and her employment was covered by the Modern Award; and

    e. That Sinpek did not pay to either Mr Dhariwal or Mrs Kumari any monies for unused annual leave on the termination of their employment.

    2. The key matters about which the parties do not agree are:

    a. Mr Dhariwal’s duties and responsibilities;

    b. Whether Mr Dhariwal was covered by the Modern Award;

    c. The hours worked by Mr Dhariwal and Mrs Kumari when employed;

    d. Whether Mrs Kumari’s proper classification under the Modern Award was Level R4 or Level R2;

    e. Whether Mr Dhariwal and Mrs Kumari resigned their employment or whether one or both of them were dismissed by Sinpek;

    f. Whether Sinpek required Mr Dhariwal to spend or pay money for a theft of fuel/“drive-off” on or around 30 May 2016 and whether that requirement was unreasonable in the circumstances;

    g. Whether Sinpek required Mr Dhariwal to spend or pay money by in relation to his performance of work for Sinpek by “paying him back” any amounts withheld by Sinpek and remitted to the ATO;

    h. Whether Sinpek failed to keep proper records relating to leave and termination payments;

    i. Whether Sinpek provided payslips to Mr Dhariwal and Mrs Kumari from January 2016 onwards; and

    j. Whether the Applicant has satisfied the requirements to establish the accessorial liability of Mr Singh and/or Mrs Singh.

    3. The parties agree that the key matters for determination by the Court are:

    a. What were Mr Dhariwal’s duties and responsibilities?

    b. (given Mr Dhariwal’s duties and responsibilities) was Mr Dhariwal covered by the Modern Award?

    c. If Mr Dhariwal was covered by the Modern Award:

    i. What were the days and hours worked by Mr Dhariwal?

    ii. Did Sinpek pay Sunday rates, public holiday rates and overtime rates in accordance with the Modern Award?

    d. (regardless of whether or not Mr Dhariwal was covered by the Modern Award) did Sinpek fail to pay personal leave to Mr Dhariwal for the period 6-12 August 2016?

    e. In relation to Mrs Kumari’s employment generally:

    i. What were Mrs Kumari’s duties and responsibilities?

    ii. Was Mrs Kumari’s proper classification under the Modern Award Level R4 or Level R2?

    iii. What were the days and hours worked by Mrs Kumari?

    iv. What monies were paid to Mrs Kumari for her work?

    f. Did Sinpek comply with the Modern Award in relation to:

    i. minimum full-time hourly rates payable to Mrs Kumari?

    ii. shiftwork loading rates, Saturday penalty rates, Sunday penalty rates, overtime rates and public holiday rates payable to Mrs Kumari?

    g. How much was Sinpek required to pay to Mr Dhariwal and Mrs Kumari on termination in relation to annual leave?

    h. When did the employment of Mr Dhariwal and Mrs Kumari end?

    i. Did Mr Dhariwal and Mrs Kumari both resign their employment in August 2016 or did Sinpek dismiss one or both of them?

    j. If Mr Dhariwal and Mrs Kumari resigned their employment; were they entitled to personal leave after the date of resignation;

    k. If Mr Dhariwal and Mrs Kumari resigned their employment; was Sinpek entitled to deduct the notice not provided from any payments owing?

    l. Did Mr Singh on behalf of Sinpek require Mr Dhariwal to spend or pay money in relation to his performance of work for Sinpek for the theft of fuel/ drive-off on or around 30 May 2016?

    m. if there was such a requirement; whether that requirement was unreasonable in the circumstances?

    n. Whether income tax withheld from wages is an amount payable to an employee “in relation to the performance of work”.

    o. Whether Mr Singh on behalf of Sinpek required Mr Dhariwal to spend or pay money “in relation to his performance of work” by “paying him back” any amounts withheld by Sinpek and remitted to the ATO and was that requirement unreasonable in the circumstances?

    p. Did Sinpek fail to keep proper records relating to leave and termination payments?

    q. Did Sinpek provide payslips to Mr Dhariwal and Mrs Kumari for the whole period of their employment?

    r. Were Mr and Mrs Singh involved in Sinpek’s contraventions for the purposes of s.550 of the Act? Has the Applicant established to the Briginshaw standard that:

    i. Mr Singh had the requisite knowledge of the essential facts constituting each relevant contravention by Sinpek?

    ii. Mr Singh’s conduct or omissions had the requisite practical connection to Sinpek’s contravention(s)?

    iii. Mrs Singh had the requisite knowledge of the essential facts constituting each relevant contravention by Sinpek?

    iv. Mrs Singh’s conduct or omissions had the requisite practical connection to Sinpek’s contravention(s)?

1. For the reasons given, the Court, in summary, finds in answer to the questions raised by Question 3 to Exhibit O as follows:

   a)Mr Dhariwal’s  duties and responsibilities were that of a Console Operator;

   b)Mr Dhariwal was covered by the Modern Award;

   c)Mr Dhariwal worked substantial days and hours in respect of which the Court has made findings on each relevant contravention. The first respondent did not pay Sunday rates, Public Holiday rates and Overtimes rates in accordance with the Modern Award to Mr Dhariwal;

   d)The first respondent failed to pay personal leave to Mr Dhariwal for the period 6 to 12 August 2016;

   e)Mrs Kumari’s duties and responsibilities were those of a Console Operator. Mrs Kumari’s classification is that of R4 under the Modern Award. Mrs Kumari worked substantial days and hours in respect of which the Court has made findings on each relevant contravention. The Court has also made findings as to the payments made to Mr Dhariwal and Mrs Kumari;

   f)The first respondent did not comply with the Modern Award in relation to the minimum full-time hourly rates payable to Mrs Kumari. The first respondent did not comply with the Modern Award in relation to shiftwork loading rates, Sunday penalty rates, Saturday penalty rates, overtime rates and public holiday rates payable to Mrs Kumari;

   g)The Court has made express findings in respect of the amount payable on termination in relation to annual leave;

   h)Mr Dhariwal and Mrs Kumari were constructively dismissed on or about 10 August 2016;

   i)Mr Dhariwal and Mrs Kumari did not resign and were constructively dismissed;

   j)Mr Dhariwal and Mrs Kumari did not resign;

   k)Mr Dhariwal and Mrs Kumari did not resign;

   l)The second respondent required Mr Dhariwal to spend money in relation to fuel drive offs;

   m)The spending requirement was unreasonable;

   n)It was Mr Dhariwal’s tax refund which he was unreasonably required to repay;

   o)The spending requirement was unreasonable;

   p)The first respondent failed to keep proper records relating to leave and termination payments;

   q)The first respondent did not provide pay slips to Mr Dhariwal and Mrs Kumari for the whole period of employment; and

   r)The second respondent and the third respondent were involved in the first respondent’s contraventions for the purpose of s.550 of the Act. The applicant has established, to the Briginshaw standard, that:

   i)The second respondent had the requisite knowledge of the facts constituting each relevant contravention by the first respondent;

   ii)The second respondent’s conduct or omissions had the requisite practical connection to the first respondent’s contraventions;

   iii)The third respondent had the requisite knowledge of the essential facts constituting each relevant contravention by the first respondent;

   iv)The thirds respondent’s conduct or omissions had the requisite practical connection to the first respondent’s contraventions.

2. The first two issues were the duties and responsibilities of Mr Dhariwal and whether he was covered by the Modern Award. The second and third respondents contended that Mr Dhariwal was a retail manager and not covered by the Modern Award. There was no dispute that Mrs Kumari was covered by the Modern Award.

3. For reasons expanded upon below, the Court finds that Mr Dhariwal was covered by the Modern Award. The Court finds that, throughout the employment of Mr Dhariwal and Mrs Kumari, the third respondent operated as the manager of the petrol station and café and, together with the second respondent, was responsible for payment of wages and preparation of rosters.

4. The Court accepts the evidence of Mr Dhariwal and finds that Mr Dhariwal consistently worked between 40 to 60 hours per week, including regularly working on evenings and weekends, and increased hours from August 2015 as expanded on below.

5. The Court accepts the evidence of Mrs Kumari and finds that Mrs Kumari also worked 40 to 60 hours per week, including evening and weekend shifts, and was paid a rate which was insufficient to meet the additional entitlements that Mrs Kumari was entitled to under the Modern Award.

6. The Court accepts the evidence of Inspector Longmire and Mr Wong as to the calculation of and actual payments made by the first respondent to Mr Dhariwal and Mrs Kumari. The Court also accepts the evidence of Inspector Longmire and Mr Wong as to the calculation of the entitlements of Mr Dhariwal and Mrs Kumari under the Modern Award and accuracy of the underpayments not made by the first respondent.

7. The Court accepts the supporting evidence of Mr Dhariwal and Mrs Kumari as to the basis for the entitlements and the underpayment by the first respondent.

8. The Court finds that Mrs Kumari was not paid wages for the first three months of her work. The Court finds that neither Mrs Kumari nor Mr Dhariwal were paid additional amounts for working on weekends, public holidays and overtime, and that neither was paid in respect of untaken annual leave or on the termination of employment. The Court finds that the entitlements which should have been paid to Mr Dhariwal and Mrs Kumari in total amount to $52,722.48 which remains outstanding.

9. Based on Mr Dhariwal’s evidence, the Court finds that, although Mr Dhariwal signed an employment agreement which described him as a Retail Manager, he was employed from 8 January 2015 until approximately 10 August 2016 performing the duties, in substance, of a Console Operator. The Court finds that Mr Dhariwal usually worked 40 to 48 hours a week over five to six days and, from August 2015, onwards worked between 42 and 70 hours per week and also worked on the weekend and on public holidays.

10. The Court accepts Mr Dhariwal’s evidence that he was not trained in and did not have responsibility for payroll, did not pay wages, did not create MYOB records for the first respondent and did not prepare rosters. The Court finds that Mr Dhariwal was monitored and supervised throughout his employment by the second respondent and the third respondent.

11. Accepting the evidence of Mr Dhariwal, the Court finds that Mr Dhariwal did not act as a Retail Manager and assume all of the management duties performed by the third respondent. The Court finds that Mr Dhariwal did not assume the responsibility for payroll, including correctly calculating pay and the provision of pay slips and rosters, as alleged by the second respondent and the third respondent.

12. In Exhibit ML1 to the affidavit of Mr Longmire, there is an OHS manual sign-off by Mrs Kumari as a Console Operator on 24 August 2015 which has been also signed and dated by the third respondent on 24 August 2015 as Manager. This is entirely inconsistent with the evidence given by the third respondent that she did not perform a managerial role during the employment of Mr Dhariwal and that Mr Dhariwal had, in substance, assumed all the duties that she was performing. That evidence was clearly false. This document supports the Court finding the ongoing role of the third respondent in the management of the business throughout the period of employment of Mr Dhariwal and Mrs Kumari.

13. The ongoing role of the third respondent was also supported by the ATO standard choice form in respect of an employee, which was signed on 12 October 2015 by the third respondent. The Court notes that there is a further OHS form signed by the third respondent as Manager on 12 October 2015, again inconsistent with the third respondent’s evidence and supporting the inference drawn by the Court as to the active involvement of the third respondent throughout the period of employment by Mr Dhariwal in the ongoing management of the business, including payroll.

14. The involvement of the second respondent in respect of the payroll activities during the employment of Mr Dhariwal is also supported by the signature of the second respondent on 7 July 2016 on the PAYG payment summary for a particular individual identifying the gross payments and tax withheld.

15. The Court accepts that the second respondent was involved in determining the salary for Mr Dhariwal, the source of the direction in respect of the drive-offs and income tax refund and the decision-maker in relation to the failure to pay sick leave, annual leave and in respect of the absence of benefits upon termination. The Court also accepts that it was the second respondent, on behalf of the first respondent, who was the corporate mind involved in the decision to terminate constructively the employment of Mr Dhariwal and Mrs Dhariwal.

16. The Court also accepts the evidence of Mrs Kumari raising with the second respondent the failure to pay her and the refusal of the second respondent, on behalf of the first respondent, to do so.

17. The Court also accepts the evidence of Mrs Kumari that the third respondent told her she did not have enough hours of work to get annual leave. The Court finds that both the second and third respondents actively supervised the first respondent’s employees as they worked, including through CCTV and telephone and access to the records being kept, then, through control of the wages, payroll and pay records and record-keeping by the first respondent.

18. The Court also finds that the third respondent was informed by Mrs Power in 2014 as to the entitlement of employees to be paid under the Modern Award for those employees being console operators.

19. The Court finds that it is the second respondent and the third respondent that allocated duties to employees of the first respondent, including the printing of rosters and completion of change reports. The Court finds that the second respondent and the third respondent were involved in paying wages and maintaining the first respondent’s records, including the instructions given to Mr Dhariwal to record his hours in a sign-in book.

20. The second respondent also proffered an explanation in relation to the failure to pay wages to Mrs Kumari and suggested that they had been made in cash. On 19 October 2016 by email in response to an email from Mr Longmire dated 18 October 2016, the second respondent contended that all payments for hours worked were credited into their bank accounts and accepted by them. That assertion is completely inconsistent with the assertion advanced by the second respondent that payments were made to Mrs Kumari in cash.

21. The Court finds that the false evidence of the second respondent in relation to payments being made by cash further supports the inference of the second respondent’s ongoing involvement in the business operations and, in particular, payroll responsibilities of the second and third respondent throughout the period of employment of Mr Dhariwal and Mrs Kumari. Further, that false evidence further supports the inference drawn by the Court that the second respondent knew that Mr Dhariwal and Mrs Kumari were not being paid in accordance with the Modern Award.

22. The third respondent, in her affidavit, asserted that there was a full handover to Mr Dhariwal after the two or three weeks training and that all the duties that the third respondent had as manager ceased at the time Mr Dhariwal commenced his employment with the first respondent. The Court finds that that evidence is not true.

23. The Court accepts Mr Dhariwal’s evidence that he did not undertake payroll responsibilities. The Court finds that those payroll responsibilities continued to be performed by the second respondent and the third respondent on behalf of the first respondent throughout the employment of Mr Dhariwal.

24. The third respondent alleged that Mr Dhariwal, as Retail Manager, had payroll responsibilities, calculating employee wages each week through the use of MYOB including his salary and using the second respondent’s internet banking login to transfer money owed to employees of the first respondent. This included his issuing and distributing of employee pay slips through MYOB, including Mr Dhariwal’s pay slips.

25. The Court finds that Mr Dhariwal did not have the login and did not engage in any such transfer. The Court also finds that the third respondent gave false evidence in relation to this payroll responsibility. This further supports the finding as to the second respondent’s and third respondent’s ongoing knowledge and involvement in the contraventions by the first respondent.

26. In assessing the credibility of the second respondent and the third respondent, the Court finds their evidence as to payroll, pay slips and rosters to be unresponsive, evasive and implausible. The second respondent and third respondent gave evidence in relation to the alleged role of Mr Dhariwal which was completely inconsistent with the rosters which were put into evidence.

27. The Court accepts that the obvious inference in respect of the three week roster prepared when the second respondent and the third respondent went overseas was that it was the second respondent and the third respondents that prepared the rosters. The Court also finds the documentary timing evidence establishes a pattern of payments in respect of wages. The change of that pattern supports the inference the Court draws that the second and third respondents were the ones effecting payment for the wages whilst overseas.

28. The second respondent was clearly aware of the particular entitlements provided under the Modern Award for employees and the obligation to pay employees Mr Dhariwal and Mrs Kumari in relation to the Modern Award in respect of wages and entitlements. The Court finds that the third respondent was also so aware.

29. Both the second and third respondents had prior contact with the applicant, referred to by Inspector Longmire identifying knowledge throughout the employment of Mr Dhariwal and Mrs Kumari, of the existence and application of the Modern Award to console operators. The affidavits of the second respondent and the third respondent acknowledged knowledge of the existence of the Modern Award.

30. The false evidence given by the second respondent and the third respondent on the issues of payroll, pay slips and rosters supports the drawing of the adverse inference in respect of knowledge of underpayment by the first respondent of Mr Dhariwal and Mrs Kumari under the Modern Award.

31. The Court finds that the second respondent’s and the third respondent’s false evidence that Mr Kumari was a Retail Manager and that is why he was not paid in accordance with the Modern Award carries with it the obvious and compelling inference, which the Court draws, that both the second respondent and the third respondent fully appreciated that Mr Dhariwal was not being paid the entitlements to which he had a right as a Console Operator Level 4 under the Modern Award throughout the period of his employment.

32. The Court does not accept the evidence of the second respondent and the third respondent contending a limited knowledge or division of duties, such that it was Mr Dhariwal who was running the company or that he had assumed their responsibilities. The false evidence by the second respondent and the third respondent in that regard further supports the adverse inference in respect of knowledge of underpayment by the first respondent of Mr Dhariwal and Mrs Kumari under the Modern Award.

33. The Court finds that, throughout the employment or Mr Dhariwal and Mrs Kumari, both the second respondent and the third respondent were actively involved in the maintaining of the rosters and the preparation of payments to be made to each employee. The Court also finds that the second respondent and the third respondent were aware of what was being paid to each employee and were aware that Mr Dhariwal and Mrs Kumari were not being paid in accordance with the entitlements under the Modern Award.

34. The Court refers to the record produced to Inspector Longmire, which included a schedule suggesting a commencement of work date for Mrs Kamari which was clearly not true. The Court finds that the second respondent and the third respondent were aware that the erroneous employment date was being advanced by the first respondent and did so because they were aware of the failure to pay Mrs Kumari amounts to which she was entitled under the Modern Award. The Court finds that the second respondent and the third respondent were aware that Mrs Kumari was being paid less than her entitlements under the Modern Award as a Console Operator Level 4.  

35. The assertion advanced by the second respondent and the third respondent that they believed Mr Dhariwal was a Retail Manager and was not covered by the Modern Award is not credible in circumstances where the second and third respondents knew that he undertook no payroll activities. The assertion in the third respondent’s affidavit that Mr Dhariwal performed the payroll duties throughout his employment is not true.

36. The Court does not accept that the second respondent and the third respondents believed that Mr Dhariwal was not covered by the Modern Award as they knew that he was not performing the duties alleged in respect of payroll responsibilities. The Court further infers from the false evidence of the second respondent and the third respondent in that regard that the second respondent and the third respondent were knowingly involved in those payroll responsibilities and the contraventions by the first respondent in respect of the underpayment of wages and entitlements of Mr Dhariwal and Mrs Kumari under the Modern Award.

37. The evidence given by the third respondent as to her knowledge of MYOB for the purpose of processing payroll and issuing pay slips also supports the knowing involvement by the third respondent in the contraventions. The Court does not accept the third respondent’s contention that this was only a process and activity undertaken prior to Mr Dhariwal’s commencement of employment and that, from the time of his employment, the third respondent had no further role in paying employees.

38. That evidence by the third respondent is not true and is a further basis for the adverse inferences the Court has drawn in respect of the knowledge of the third respondent in respect of the involvement of the third respondent in the contraventions and knowledge by the third respondent of the underpayment or non-payment in respect of the contraventions by the first respondent.

39. The third respondent, prior to claiming privilege, alleged that she had never seen a statutory declaration which was signed by Mr Dhariwal. The Court finds that that evidence was clearly false. The Court finds it was the third respondent that prepared the statutory declaration and the Court accepts Mr Dhariwal’s explanation as to the circumstances in which he came to sign the same.

40. The evidence given by the third respondent to the Court in cross-examination that she stopped doing payroll after training Mr Dhariwal was not true. The proposition that, after training Mr Dhariwal, he was not the subject of any continuing supervision throughout his employment was also not credible and not true.

41. The third respondent also acknowledged that she knew the Console Operator is entitled to receive minimum hourly rates under the Modern Award and acknowledged that she knew that employers were entitled to receive overtime.

42. The Court finds the explanation advanced that “we didn’t pay overtime because nobody worked overtime” given by the third respondent to be evasive. This further supports the adverse inference that the Court has drawn in respect of the third respondent’s knowledge of the underpayment of entitlements and knowledge in respect of Mr Dhariwal and Mrs Kumari of underpayments of entitlements, including overtime by the first respondent.

43. The third respondent acknowledged that she was aware about penalty rates under the Modern Award.

44. The third respondent also acknowledged that part of her duties as manager was looking after payroll and that that included responsibility for pay slips and for entries in the accounting system, respective payments made to employees and providing the MYOB data to the accountant.

1. The Court does not accept the third respondent’s evidence that she was not in charge of rosters. The Court does not accept that Mr Dhariwal was employed as a retail manager on a full-time basis. The Court does not accept that Mr Dhariwal was responsible for the payment of wages and payroll issues in respect of employees of the first respondent at the service station during the period of his employment. The Court does not accept that Mr Dhariwal was the person responsible for preparation of weekly rosters and the preparation and distribution of payslips in respect of employees of the first respondent at the service station. The Court does not accept that Mr Dhariwal was responsible for the creation of pay records of employees of the first respondent at the service station.

2. The Court finds that, over the period of the employment of Mr Dhariwal and Mrs Kumari, the second respondent and the third respondent were responsible for payroll activities, including payment of wages, preparation of weekly rosters, distribution of pay slips and the creation of pay records. The Court finds that the second respondent and the third respondent were aware that, at all times during his period of employment, Mr Dhariwal was not a retail manager. The Court accepts the evidence of Mr Dhariwal as to the role and responsibility of the second respondent and the third respondent in preparing the rosters and paying employees.

3. The third respondent, in answer to the question “Who was it that was ensuring that each of the employees were receiving their proper entitlements on behalf of the first respondent?” asserted that she did not know because she had handed over her role to Mr Dhariwal and that that was not her responsibility any more. The third respondent, however, said that her husband would know that. This is further evidence to support the inference drawn as to the knowledge of the second respondent and the underpayment by the first respondent.

4. For reasons earlier given, the Court does not accept the third respondent’s evidence that she had handed over the role of manager. This is a further basis upon which the Court makes the adverse finding in respect of the third respondent’s knowledge and involvement in the contraventions by the first respondent.

5. Based on the evidence of Mr Dhariwal and Mrs Kumari, the Court finds that, ordinarily, Mr Dhariwal and Mrs Kumari worked pursuant to a roster which was prepared by the second and/or the third respondent. For reasons expanded on below, the Court finds that Mr Dhariwal was unilaterally dismissed by the removal of his name from the roster of the first respondent by the second respondent and the third respondent. The Curt also finds that Mrs Kumari was unilaterally dismissed by the removal of her name from the roster of the first respondent by the second respondent and the third respondent.

6. Based the evidence of Inspector Longmire, the Court finds that there were pay slips provided for approximately the first nine months of employment by Mr Dhariwal and then the first respondent stopped regularly providing pay slips to Mr Dhariwal and Mrs Kumari in January 2016. The Court finds Mr Dhariwal and Mrs Kumari did not receive pay slips in most weeks of their employment in 2016.

7. The Court rejects the second and third respondents’ evidence that the rosters were prepared principally by Mr Dhariwal during his employment. The Court finds that the rosters were prepared by the second respondent and the third respondent. The Court also finds that the second respondent and the third respondent maintained responsibility for the payroll, pay slips, rosters and record-keeping as to employee payments.

8. The Court finds that, accepting the evidence of Mr Dhariwal and Mrs Kumari and the adverse credibility findings as to the evidence of the second respondent and the third respondent, these activities remained the responsibility of the second respondent and third respondent throughout the employment of Mr Dhariwal. The Court rejects the evidence of the second respondent and the third respondents that Mr Dhariwal assumed responsibility for these activities.

9. Based on the evidence of Mr Dhariwal and Mrs Kumari and the adverse credibility findings as to the second respondent and the third respondent, the Court finds that the second respondent continued to be involved on a day-to-day basis with the running of the business by the first respondent in checking the bank records and details in respect of payments being made, payroll, calculation of pay, provision of payslips, rosters and record keeping as to employee payments

10. Given the adverse credibility findings identified above, the Court rejects the evidence of the second respondent and the third respondent that Mr Dhariwal paid the employees during his employment. The Court finds that the second respondent and the third respondent were responsible for and caused the first respondent to calculate and make payments to the employees of the first respondent during the employment of Mr Dhariwal.

11. The Court finds that Mr Dhariwal did not have access to the bank details of any of the respondents for the purpose of effecting payment on behalf of the first respondent as advanced by the second and third respondents. The Court accepts that Mr Dhariwal observed the third respondent processing pays in respect to the employees of the first respondent at the petrol station.

12. The Court finds that the second respondent, with the knowledge of the third respondent, made the decision to remove Mr Dhariwal and Mrs Kumari from the roster in August of 2016 as part of a constructive dismissal of both persons from the employment of the first respondent and to the knowledge of the second and third respondents without payment of the entitlements in respect of annual leave on termination of employment in circumstances where the second and third respondents were aware of or involved in the failure of the first respondent to pay the personal leave to Mr Dhariwal. The first respondent, with the knowing involvement of the second and third respondents, failed to pay the amount in lieu of the minimum notice period as required under s.117(4) of the Act and in contravention of s.44 of the Act.

13. The Court finds that both Mr Dhariwal and Mrs Kumari were covered by the Modern Award. Taking into account the coverage provision, in particular in cl.4 of the Modern Award as well as the provisions of Schedule B of the Modern Award in relation to secure work conditions and the duties in fact performed, the Court finds that Mr Dhariwal and Mrs Kumari were Level 4 employees under the Modern Award.

14. The Court takes into account in that regard the express reference to “and a console operator” in the second paragraph in respect of that categorisation for a Level 4 employee and finds that each were employees were required to work to the Level of training under general supervision of the second respondent and third respondent.

15. The Court finds that Mr Dhariwal and Mrs Kumari exercised minimal discretion within their levels of skill and training as Console Operators. The Court also finds that the second respondent and the third respondent understood they were responsible for the quality of Mr Dhariwal and Mrs Kumari’s work as Console Operators for the first respondent.

16. Mr Dhariwal and Mrs Kumari possessed competent communication and written skills and intermediate keyboard, customer relations and computer operation skills at a level higher than Level 3. The supervision of Mr Dhariwal and Mrs Kumari was not of a kind applicable to Level 3 in that regard. The Court finds that they possessed the skills appropriate to Level 4 and had cash register and console operation skills. The Court has also taken into account the reference to what is contained within the R4 Level and the express reference to Console Operator.

17. The Court accepts Mr Dhariwal’s evidence that he was initially trained in the use of tills, the authorisation buzzer which enables customers to pump fuel into their cars, refuelling and restocking, general cleaning, cooking and labelling food, and refilling gas bottles.

18. The Court accepts Mr Dhariwal’s evidence that he usually operated a particular petrol console, being console 1, and had the duty of servicing customers at the console, receiving and processing payments from customers, receiving deliveries of stock, watching customers fill up their vehicles with fuel, filling gas bottles, general cleaning, general cooking, and restocking.

19. The Court accepts that there were additional tasks after nine months of employment, including completing weekly till and fuel reports and sending a diesel report each day. The Court accepts that, after 12 months Mr Dhariwal also was involved in ordering stock including cigarettes, printing rosters and completing change reports.

20. The Court has also taken into account cl 33.1 of the Modern Award and, as referred to above, Schedule B which defines the skill Level R4. The Court finds the duties of Mr Dhariwal were consistent with a Level 4 classification in the Modern Award, as were the duties of Mrs Kumari. The Court rejects the contention that Mrs Kumari’s duties were consistent with a Level 2 classification under the Modern Award.

21. Because of the adverse credibility findings referred to above, the Court rejects the case advanced on behalf of the second respondent and third respondent that Mr Dhariwal was not covered by the Modern Award and that he was engaged as and performed the duties of a Retail Manager. That case is substantially advanced on the basis of a statutory declaration completed by Mr Dhariwal, as well as a contract of employment, which, on the evidence, were created in the context of an endeavour to obtain a particular visa and the evidence given by the second respondent and the third respondent.

22. The statutory declaration alleged, in particular at paragraph 30, that Mr Dhariwal, as a Retail Manager, was responsible for “Fair Work – Abiding by terms of the award for the business.” The statutory declaration also alleged, at paragraph 35, responsibility for payroll and, at paragraph 11, alleged responsibility for budgets. Given that the Court finds that these were not the responsibilities or duties in fact performed by Mr Dhariwal, it is a compelling and irresistible inference that the Court draws that the second respondent and the third respondent were both aware of the requirement to abide the terms of the Modern Award for employees. The Court finds that the second respondent and the third respondent knowingly created false assertions as to the said activities of Mr Dhariwal and have endeavoured to knowingly rely on the same in answer to the applicant’s case.

23. The conduct of Mr Dhariwal in signing the statutory declaration and the conduct of the second respondent and the third respondent in relation to the steps taken referable to the preparation and making of that statutory declaration and the obtaining of a visa does not reflect well on any of them. The Court does, however, accept Mr Dhariwal’s evidence that the statutory declaration was prepared by the third respondent without the input of Mr Dhariwal. The Court finds that this was done by the third respondent with the knowledge of the second respondent. The denials of the second respondent and the third respondent in relation to the preparation of that statutory declaration were clearly not plausible or credible. The evidence in Exhibit Q, which is a contemporaneous record, corroborates the evidence of Mr Dhariwal and contradicts the evidence of the second respondent and the third respondent.

24. In these circumstances, the Court finds that the second respondent and the third respondents at all times knew that Mr Dhariwal was performing the same role as a rostered Console Operator Level 4. The Court also finds that the second respondent and the third respondent knew at all times that Mrs Kumari was also performing the same role as a rostered Level 4 employee.

25. The Court also finds that the second respondent and the third respondent at all times knew that Mr Dhariwal and Mrs Kumari were both covered by and entitled to the benefits of the Modern Award. The Court finds that the second respondent and third respondent at all times knew that Mr Dhariwal and Mrs Kumari were not being paid in accordance with the Modern Award as Level 4 employees. The Court finds that second respondent and the third respondent knew that Mr Dhariwal and Mrs Kumari were being paid by the first respondent less than their entitlements under the Modern Award.

26. The Court does not accept the second respondent’s and the third respondent’s case that Mr Dhariwal and Mrs Kumari both resigned their employment in August 2016. The Court prefers the evidence of Mr Dhariwal and Mrs Kumari. The Court finds that the first respondent, with the knowledge and involvement of the second respondent and the third respondent, constructively dismissed Mr Dhariwal and Mrs Kumari by the decision to remove their names from the roster, which had the constructive effect of dismissing the two employees without proper notice.

27. There is no basis upon which the second respondent and the third respondent can justify their failure to provide the proper notice required under the Modern Award in the circumstances of the constructive dismissal of Mr Dhariwal and Mrs Kumari

28. The Court finds that the first respondent, to the knowledge of the second respondent and the third respondent, required employees to pay for fuel theft or drive offs. This is based on the evidence of Mr Dhariwal and Mrs Kumari, which the Court accepts. The Court finds that the second respondent and the third respondent were knowingly involved in requiring both Mr Dhariwal and Mrs Kumari to make payments in respect of fuel theft or drive offs in the course of their employment and that this was a wholly unreasonable requirement and in breach of the Act.

29. Based on the evidence of Mr Dhariwal, which the Court accepts, the Court finds that the first respondent, to the knowledge and the involvement of the second respondent, required Mr Dhariwal to pay back to the first respondent a tax refund in the order of $3,600.00 which Mr Dhariwal received from the ATO. The Court finds that this was pursuant to the direction of the first respondent through the second respondent.

30. The Court finds that this was a policy of the first respondent. The Court finds that the second respondent and the third respondent implemented this policy in relation to employees and that the policy was an unreasonable requirement for spending by the employees.

31. The Court finds that the first respondent failed to keep proper records relating to leave and termination payments. The Court finds that the first respondent failed to provide most weekly pay slips for Mr Dhariwal and Mrs Kumari from January 2016 until the end of their employment.

32. The Court finds that the applicant has established to the requisite standard that the second respondent and the third respondent had knowledge of the essential facts constituting each contravention by the first respondent. The Court has taken into account the seriousness and gravity of the alleged conduct in reaching that satisfaction and that the allegation of the second respondent and the third respondent being knowingly concerned is akin to a pleading of dishonesty.

33. The Court finds that the second respondent and the third respondent were engaged in operating the business of the first respondent and responsible for the payment of wages and the keeping of records in respect of payroll, rosters and pay slips. The Court has taken into account the provisions of s.550 of the Act which are as follows:

    (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

    Note: If a person (the involved person) is taken under this subs to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subs 557A(5A)). Serious contraventions attract higher maximum penalties (see subs 539(2)).

    (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.

34. The Court has also taken into account the legal principles in relation to accessorial liability, helpfully recently summarised by the learned Flick J in Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 at [10] to [15].

35. The Court finds that the second respondent and the third respondent, through their actual conduct in the operation of the first respondent and their payroll responsibility and payroll activities, had the requisite practical connection to each of the contraventions by the first respondent. The Court finds that the second respondent and the third respondents were associated with and had the requisite knowledge of the essential facts constituting each of the contraventions by the first respondent. The Court finds that the second respondent and the third respondent were involved in the contraventions of the first respondent as found below by aiding, abetting, counselling or procuring each relevant contravention. Further, the Court finds that the second respondent and the third respondent were, by their acts and omissions in payroll, rosters, pay slips, and spending, directly and knowingly concerned in and party to each relevant contravention.

36. The Court finds that the second respondent and the third respondent had a practical connection to each contravention alleged against the respective respondent by reason of their knowledge of each of the elements of the contravention and their control of the operation of the business, including the financial records, payroll and keeping of records of the first respondent.

37. The Court finds that the second and third respondents associated themselves with each of the contraventions alleged by the first respondent against the second respondent and the third respondent. The Court finds that the second respondent and the third respondent were associated with the primary contravention by the first respondent through the commission of the positive acts in the control of the operation of the first respondent, including their control and knowledge of the wage records, payroll, making of payment to employees and the keeping of records and/or failure to keep records in relation to the same.

38. The Court finds that the second respondent and the third respondent were knowingly concerned in each of the contraventions alleged by the applicant in respect of the contraventions by the first respondent. The Court finds that there was actual knowledge by the second respondent and third respondent of each of the elements of the contravention by the first respondent and the actual knowledge in the present case is a compelling inference in light of the false evidence of the second and third respondents to which the Court has referred.

39. The Court finds that the second and third respondents had actual knowledge of the essential facts constituting the contravention by the first respondent in respect of each of the contraventions alleged against the respective respondents. The Court finds the second and third respondents had knowledge of each of the elements of the contravention by the first respondent.

40. The Court finds that the second respondent and the third respondents had the requisite mental state in respect of actual knowledge of the elements of each of the offences alleged against the first respondent and had directed their minds to and were aware of the failure to pay Mr Dhariwal and Mrs Kumari in accordance with their entitlements under the Modern Award and that this included knowledge of the fact of the underpayment as alleged by the applicant.

1. In the present case, the Court finds that the second respondent and the third respondent had knowledge of the Modern Award which applied to employees of the first respondent who were Console Operators. The Court finds that the second and third respondents and the first respondent were all aware and knew that the Modern Award applied not just to Mrs Kumari but also to Mr Dhariwal, both as an R4 employee under the Modern Award, and that they were respectively paid less than their entitlements under the Modern Award, as alleged by the applicant.

2. The Court finds that the second and third respondents knew that the rates which were paid to Mr Dhariwal and Mrs Kumari were below the prescribed rates by the Modern Award.

3. The Court finds that the second and third respondent were regularly in attendance at the service station throughout the employment of Mr Dhariwal and Mrs Kumari. The Court finds that the second and third respondents had a practical connection through their conduct in the operation and control of the records, payroll, pay slips and operation of the business, to the contraventions by the first respondent, as alleged by the applicant.

4. The Court finds that the second and third respondents had knowledge of the existence of the Modern Award and that the Modern Award required the first respondent to pay additional rates for overtime penalty rates, penalty rates and other entitlements. The Court finds that the second and third respondents had this knowledge for the whole of the period of the employment of Mr Dhariwal and Mrs Kumari.

5. The Court finds that the second and third respondents were aware of the information provided by the Fair Work Ombudsman on 28 January 2014 as to the coverage of the Modern Award in respect of weekend and public holiday rates. The Court also accepts the evidence led by Inspector Longmire in relation to the communications to the Fair Work info-line about hours of work and pay, employees’ entitlements, penalty rates and employees’ entitlements

6. The second respondent and the third respondent suggested that the applicant’s pleading was deficient in relation to the requirements of s.550 of the Act. In particular, it was submitted that the requisite elements had not been pleaded which were essential for making out accessorial liability.

7. The first respondent’s pleading makes clear that it alleges that each of the second respondent and the third respondent, except in respect of three particular contraventions which do not involve the third respondent, had knowledge of each and every element of the contravention by the first respondent and engaged in the contravening conduct of the first respondent as alleged in the pleading.

8. The Court finds that the applicant has pleaded that the second and third respondents participated in the principal contravention with prior knowledge of all the essential elements of the contravention by the pleadings found in the further amended statement of claim. In particular, each of the relevant elements of involvement in the contravention by the first respondent is expressly pleaded, both in respect of the second respondent at paragraphs 141 to 148 of the further amended statement of claim and, in respect of the third respondent, at paragraphs 150 to 154 of the further amended statement of claim.

9. There was no pleading defect of the statutory accessorial cause of action as against the second respondent and the third respondent. In the circumstances of the present case, the second and third respondents were clearly on notice of the case being advanced against them in respect of accessorial liability.

10. Counsel for the second respondent and the third respondent submitted that the case advanced in respect of knowledge by the second respondent and the third respondent of underpayments below the Modern Award was nothing more than a guess.

11. The Court rejects that submission. It is apparent from the false evidence of the second respondent and the third respondent as to Mr Dhariwal holding and performing the office of Retail Manager, which he did not, that the second respondent and the third respondent appreciated that Mr Dhariwal had not been paid in accordance with the Modern Award. This further supports the inference drawn that Mr Dhariwal and Mrs Kumari had been paid less than their entitlement under the Modern Award by the first respondent to the knowledge of the second respondent and the third respondent.

12. The Court also finds that, because of the false evidence of the second respondent and the third respondent as to their continued role in the payroll activities of the first respondent, the second respondent and the third respondent had knowledge at the time of each contravention by the first respondent in respect of Mr Dhariwal that he was not being paid in accordance with the obligations under the Modern Award, that the position he held was that of a Level 4 console operator, that Mr Dhariwal was entitled to those payments in accordance with the Modern Award and that Mr Dhariwal was being underpaid by the first respondent in respect of those entitlements.

13. Counsel for the second and third respondents submitted that the particulars in respect of the knowledge which was pleaded in paragraph 145(c) and in relation to paragraph 152(c) of the further amended statement of claim should be read as confined to the particulars provided.

14. This assertion is without substance. The particulars of knowledge do not read down and limit the substantive pleading of accessorial liability. The particulars gave the respondents notice of the earlier communications with the applicant concerning application of the Modern Award to console operators prior to the alleged contraventions The second and third respondents were plainly on notice of the substantive allegation pleaded of knowing involvement in the pleaded contraventions.

15. The particulars as to the earlier communications do not prevent findings on the accessorial case pleaded, based upon which findings made by the Court on the evidence adduced include adverse credibility findings.

16. The pleaded case of accessorial liability is not confined to the particular communications which took place concerning the Modern Award identified in particulars A and B. The applicant has proved that the amounts paid to Mr Dhariwal and Mrs Kumari were less than the amounts required to be paid under the Modern Award. The applicant has proved the sending of an email to the second respondent and the third respondent identifying the first respondent’s obligations in relation to wages, unpaid trials and breaks between shifts the subject of particular A. The applicant has proved the communications in respect of the second respondent on two occasions, in which the obligations of the first respondent under the Modern Award were identified and has established the calls the subject of particular B.

17. Counsel for the second respondent and the third respondent also submitted that the pleading was defective for the want of an allegation of knowledge in relation to s.550(2)(a) of the Act. The pleading does, on its face, advance the allegation of actual knowledge of each of the elements of the contravention. Further, this is a case where the Court has found involvement by the second respondent and the third respondent under ss.550(2)(a) and 550(2)(c) of the Act. Even if there was found to be a technical deficiency in respect of the pleading of involvement under s.550(2)(a) of the Act, there is no such defect in relation to the pleading of being knowingly concerned in the contravention under s.550(2)(c) of the Act.

18. The Court accepts that the calculations of the underpayments identified in the affidavit of Ronnie Wong and as identified by Inspector Longmire were correctly calculated. The Court finds that the second and third respondents were knowingly involved and were associated with each of the contraventions by the first respondent alleged in respect of those underpayments.

19. The Court accepts the evidence by Mr Dhariwal that he was employed from January 2015 until constructively dismissed on approximately 5 August 2016. The Court also accepts the evidence of Mr Dhariwal that he received on-the-job unpaid training in console operator duties. The Court also accepts the evidence of Mr Dhariwal that it was the second respondent and the third respondent that made arrangements for information to be prepared for a visa application. The Court finds that Mr Dhariwal was required to pay to the second respondent, to the knowledge of the third respondent, the tax refund of approximately $3,600.00.

20. Mr Dhariwal also provided a drive-off receipt dated 30 May 2016 corroborative of his evidence in respect of payment of drive-offs, and the further drive-off receipt dated 24 May 2016 corroborating Mr Dhariwal’s evidence in that regard.

21. The Court finds that Mr Dhariwal was required to pay for drive-offs and did so on at least two occasions to the knowledge of the second and third respondents. The Court finds that Mr Dhariwal was required to pay various fees to Mr Singh in relation to the visa application.

22. The Court finds that in August 2016 Mr Dhariwal took sick leave and was directed by the second respondent and the third respondents to provide medical certificates for his absences. The Court finds in 2016 Mr Dhariwal to the knowledge of the second respondent and third respondent also asked to take some annual leave but his request was refused, and that when he asked for copies of his pay slips that request was not the subject of a response. The Court finds that, on 19 August 2016, Mr Dhariwal became aware his name had been removed from the roster on the shifts, and that three days later his request for annual leave was declined and that he did not do any further work for the first respondent and did not receive any notice of termination or payment in lieu of notice.

23. The Court finds in relation to Mrs Kumari that she was required, to the knowledge of the second respondent and the third respondent, to repay $100 after she made a console operator mistake, and that she received her roster during the period of her employment from 20 March 2016 until approximately 8 August 2016 by email. The Court finds the roster was prepared by the second respondent and/or the third respondent. The Court finds that Mrs Kumari’s ordinary hours were recorded in the sign-in book and that from May until December 2015 she worked four to six days per week, usually doing shift work. The Court finds the removal of Mrs Kumari’s name to the knowledge of the second and third respondents from the rosters was a constructive dismissal.  

24. After a trip overseas, Mrs Kumari raised leave entitlements but was told she was not eligible for annual leave by the third respondent. Mrs Kumari also often worked weekends and public holidays and was not paid for work performed between 30 April 2015 and 23 August 2016. The Court finds that Mrs Kumari made numerous requests to the second respondent, to the knowledge of the third respondent, for payment for her work, and was presented with an assertion that she could not be paid because her husband was being paid, and that Mrs Kumari continued to work believing she had no choice because of the potential visa repercussions.

25. The Court finds Mrs Kumari did not receive any additional amounts for working on weekends and, when payment did commence, she was paid $18.64 per hour for any hours worked.

26. In relation to Sunday penalty rates for ordinary time work, the Court finds cl.43.3 of Modern Award required that the first respondent pay Mr Dhariwal and Mrs Kumari, time and one half of ordinary hours worked on Sundays. The Court finds that the first respondent failed to pay Sunday penalty rates to Mr Dhariwal and Mrs Kumari and that the first respondent thereby contravened s.45 of the Act by its contravention of cl.43.3(a)(ii) of the Modern Award.

27. The Court finds that Mr Dhariwal worked 100.5 ordinary hours on Sundays and that the first respondent was required to pay Mr Dhariwal $2,877.26 for ordinary hours worked on Sunday. The Court finds that Mr Dhariwal was only paid by the first respondent $2,701.40 for ordinary hours worked on a Sunday. The Court finds that the first respondent underpaid Mr Dhariwal $175.86 in respect of ordinary hours worked on Sunday.

28. The Court finds that Mrs Kumari worked 116.5 ordinary hours on Sunday and that the first respondent was accordingly required to pay Mrs Kumari $3,323.93 in respect of ordinary hours worked on Sunday. The Court finds that Mrs Kumari was only paid by the first respondent $1,334.12 in respect of the ordinary hours worked on Sunday. The Court finds the first respondent underpaid Mrs Kumari $1,989.81 in respect of ordinary hours worked on a Sunday.

29. The Court finds that in respect of public holiday penalty rates pursuant to cl.43.3 of the Modern Award, the first respondent was required to pay Mr Dhariwal and Mrs Kumari ordinary time for the period worked in addition to the ordinary rate of pay for ordinary hours worked on public holidays. The Court finds that the first respondent failed to pay public holiday rates to Mr Dhariwal for ordinary hours worked on public holidays and to Mrs Kumari.

30. The Court finds that the first respondent contravened s.45 of the Act by contravening cl.43.3(a)(iii) of the Modern Award. The Court finds that the second and third respondents were accessories to the said contravention and accordingly, contravened the same provisions. The Court finds that Mr Dhariwal worked 82 ordinary hours on public holidays. The Court finds that the first respondent was required to pay Mr Dhariwal $1,562.52 for ordinary hours worked on public holidays. The Court finds that the first respondent paid Mr Dhariwal $1,398.81 for ordinary hours worked on public holidays. The Court finds the first respondent underpaid Mr Dhariwal $163.71 in respect of ordinary hours worked on public holidays.

31. The Court finds that Mrs Kumari worked 66 hours on public holidays and the first respondent is required to pay Mrs Kumari $1,256.92 in respect of ordinary hours worked on public holidays. The Court finds the first respondent did not pay Mrs Kumari any amount for ordinary hours worked on public holidays. The Court finds that the first respondent underpaid Mrs Kumari $1,256.92 in respect of ordinary hours worked on holidays.

32. In relation to the requirements of overtime pursuant to cl.43.4 of the Modern Award, the Court finds the first respondent failed to pay overtime rates to Mr Dhariwal and to Mrs Kumari. The Court finds that the first respondent, thereby, contravened s.45 of the Act by contravening cls.43.4(a)(i) to (a)(iii) of the Modern Award. The Court finds that the second respondent and the third respondent were accessories to and accordingly, contravened the same provision as the first respondent in that regard.

33. The Court finds that Mr Dhariwal worked 795.75 hours overtime, being 7471.25 hours on Sundays, 37.5 hours on public holidays and 287 hours on other days and that the first respondent, therefore, was required to pay Mr Dhariwal, $29,158.39 in respect to overtime worked by him. The Court finds that the third respondent pay Mr Dhariwal only $11,251.26 in respect of overtime.  The Court finds the first respondent underpaid Mr Dhariwal, $70,907.13 in respect of overtime hours. The Court finds Mrs Kumari worked 422.5 hours of overtime and that the first respondent was required to pay Mrs Kumari, $15,565.23 in respect of overtime. The Court finds the first respondent paid Mrs Kumari only $6,574.70 in respect of overtime hours. The Court finds the first respondent underpaid Mrs Kumari, $8,890.53 in respect of overtime hours.

34. In relation to annual leave on termination, taking into account s.90 of the Act, the Court finds the first respondent failed to pay Mr Dhariwal untaken annual leave upon termination of his employment and failed to pay untaken annual leave to Mrs Kumari on termination of her employment. The Court finds that the first respondent thereby contravened s.44(1) by contravening s.90(2) of the Act, being a national employment standard.

35. Based on the adverse credibility findings referred to above the Court finds that the second and third respondents were accessories to the said contravention of the first respondent and accordingly are taken to have contravened the same provision.

36. The Court finds that neither Mr Dhariwal nor Mrs Kumari were paid any untaken annual leave at the end of their employment. The Court finds that the first respondent terminated Mr Dhariwal’s employment on or about 10 August 2016 by the taking of a constructive step of dismissal by removing him from the roster for work after that date.

37. The Court finds that Mr Dhariwal had accrued 179.78 hours of untaken annual leave by 10 August 2016. The Court finds the first respondent was required to pay Mr Dhariwal $4,131.42 for accrued annual leave on termination. The Court finds that the first respondent did not pay Mr Dhariwal accrued annual leave on termination. The Court finds that Mrs Kumari had two periods of employment and was not paid untaken annual leave at the cessation of either period. The Court finds that Mrs Kumari’s employment was terminated on or about 10 August 2016 by the constructive dismissal step or removing her name from any rosters for further work.

38. The Court finds that Mrs Kumari at the time of her first period of employment had accrued 78.54 hours of untaken annual leave as at 31 December 2015. The Court finds the first respondent is required to pay Mrs Kumari $1,762.44 in respect of the unused annual leave at the end of her first period of employment. The Court finds the first respondent did not pay Mrs Kumari accrued annual leave on termination of her employment for the first period and that the first respondent did not pay Mrs Kumari accrued annual leave on termination of her second period of her employment.

39. The Court finds in relation to personal leave taking into account s.99 of the Act that the first respondent failed to pay Mr Dhariwal for personal leave taken by him during his employment. The Court finds the first respondent, thereby, contravened s.44(1) of the Act by contravening s.99 of the Act, being a national employment standard. The Court finds that the second and third respondents were accessories to the contravention by the first respondent and accordingly, have contravened the same provision.

40. The Court does not accept the respondent’s case that Mrs Kumari and Mr Dhariwal resigned. On 9 August 2016, Mr Dhariwal emailed the first respondent responding to a request for a medical certificate and providing a copy of a medical certificate from Dr Gulyaeva identifying that Mr Dhariwal was receiving treatment for a respiratory infection and would be unfit to continue his usual occupation from 6 August until 7 August 2016.

41. On 11 August 2016, Mr Dhariwal provided a further email to the first respondent attaching a medical certificate from the same doctor identifying that he was unfit from 8 August until 10 August 2016.

42. On 13 August 2016, Mr Dhariwal emailed the first respondent is a further medical certificate identifying that he was unfit from 11 to 13 August inclusive.

43. On 13 August 2016, Mr Dhariwal emailed the first respondent identifying that he would like to take his annual leave from Wednesday, that is 17 August until 14 September 2016, as he had not taken any since working with Sinpek. The email noted that Mr Dhariwal had asked many times verbally and had not been granted it because of the assertion of being understaffed.

44. On 15 August 2016, Mr Dhariwal emailed the first respondent making request for pay slips which he noted he had not received since 11 January 2016.

45. On 16 August 2016, Mr Dhariwal emailed the first respondent regarding the request for annual leave made on 13 August 2016 and noting that no reply was given.

46. On 22 August 2016, Mr Dhariwal emailed the first respondent identifying that he was entitled to carers leave and that he had provided medical certificates in accordance with s.107 and requested payment for his leave pursuant to s.99 of the Act.

1. On 22 August 2016, the first respondent responded to the request for annual leave and included the assertion that the request for annual leave would only be reviewed against the requirements of the organisation and after resolution of the sick leave, which cannot be converted into annual leave.

2. The email also suggested it may only be possible to consider your annual leave for December 2016 to January 2017 coinciding with the Christmas holidays. That email, sent by the first respondent on 22 August 2016, is entirely inconsistent with the second and third respondent’s contention that Mr Dhariwal had resigned.

3. On 29 August 2016, Mr Dhariwal emailed the first respondent in relation to annual leave and sick leave requests and requested to be told when he would be paid regarding the same and requested confirmation in relation to rostering.

4. On 5 September 2016, Mr Dhariwal sent a further email to the first respondent in relation to the request concerning annual leave and sick leave.

5. It is also apparent that the respondents instructed staff on 18 August 2016 not to speak to Mr Dhariwal or Mrs Kumari making reference to an investigation and the roster prepared for the week ending 21 August 2016 contained no reference to Mr Dhariwal or Mrs Kumari.

6. The Court finds that Mr Dhariwal was unfit for work for the first respondent between 6 August 2016 and 12 August 2016 and was entitled to take paid personal leave for this period. The Court finds that Mr Dhariwal was unfit to work and requested he utilise his paid personal carers leave for ordinary hours of work in that period and that in the period, 6 August 2016 to 12 August 2016, Mr Dhariwal took personal leave for which he was entitled to be paid. The first respondent failed to pay Mr Dhariwal any amount in respect of the period from 6 August to 12 August 2016.

7. The Court finds that the first respondent failed to give notice of termination of employment or provide payment in lieu for Mr Dhariwal and Mrs Kumari. The Court finds that Mr Dhariwal was owed $1,586.56 in respect of his entitlement to be paid in lieu of notice of termination and Mrs Kumari is entitled to be paid $723.28 in respect of the failure to give notice of termination. The Court finds that the second and third respondents were accessories to the said contravention by the first respondent and accordingly, are taken to have contravened the same provision.

8. The Court finds that neither Mr Dhariwal nor Mrs Kumari resigned their positions and that it was the absence of roster for any hours in August 2016 that reflected their constructive dismissal by the first respondent. Based on the adverse credibility findings the second respondent and the third respondent were knowingly involved in the said contravention. The Court finds pursuant to s.117 of the Act, the first respondent was required to give Mr Dhariwal two weeks’ notice to dismiss him from his employment because of his length of service.

9. The Court finds pursuant to s.117 of the Act, the first respondent was required to give Mrs Kumari one week’s notice to dismiss her from employment. The Court finds that the first respondent contravened s.44(1) of the Act by contravening s.117 of the Act, being a national employment standard.

10. In relation to minimum ordinary rates of pay, the Court finds the first respondent failed to pay Mrs Kumari, the appropriate minimum rate of pay for ordinary hours worked. The Court finds the first respondent contravened s.45 of the Act by failure to pay Mrs Kumari the minimum full-time hourly rates in connection of cl.33.4 of Modern Award.

11. Based on the adverse credibility findings the Court finds that the second and third respondents were accessories to the contravention by the first respondent and accordingly, have contravened the same provisions as alleged by the applicant.

12. The Court finds the first respondent was required to pay Mrs Kumari for a specific minimum rate of pay under the Modern Award for the hours of work on Monday to Friday. The Court finds the first respondent did not pay Mrs Kumari any wages for the first period of three months of employment, however, resisted her requests to be paid.

13. The Court finds that Mrs Kumari worked 1,335 hours on weekdays and that the first respondent was required to pay Mrs Kumari $35,518.28 in respect of the minimum full-time hourly rates. The Court finds that the first respondent only paid Mrs Kumari $17,855.27 in respect of ordinary hours worked on weekends. The Court finds the first respondent underpaid Mrs Kumari $7,663.01 in respect of ordinary hours worked on weekends. In respect of shift work loading rates, the Court finds the first respondent failed to pay Mrs Kumari certain additional shift work loadings for ordinary hours worked during afternoon and nightshifts on weekdays in accordance with cl.42.2 of the Modern Award. The Court finds the first respondent contravened s.45 of the Act by contravening cl.42.2 of the Modern Award.

14. Based on the adverse credibility findings the Court finds that the second and third respondents were accessories to the said contravention by the first respondent and accordingly contravened the same provision.

15. The Court finds that Mrs Kumari was not paid any additional amounts for working on weekends, public holidays and overtime. The Court finds that Mrs Kumari worked 455 hours attracting shift work loading rates. The Court finds that the first respondent was required to pay Mrs Kumari $1,144.38 in respect of shift work rates for afternoon and nightshifts worked from Monday to Friday.

16. The Court finds that the first respondent paid Mrs Kumari only $121.92 in respect of shift work rates for afternoon and nightshifts worked Monday to Friday. The Court finds the first respondent underpaid Mrs Kumari $1,022.46 in respect of ordinary hours worked during afternoon or nightshifts worked Monday to Friday.

17. In relation to penalty rates for work on Sundays, pursuant to cl.43.3 of the Modern Award, the first respondent was required to pay Mrs Kumari ordinary time until noon and then time and a half thereafter for ordinary hours worked on a Saturday. The Court finds the first respondent failed to pay Mrs Kumari penalty rates for working ordinary hours on Saturdays. The Court finds the first respondent contravened s.45 of the Act by contravening cl.43.3(a)(i) of the Modern Award.

18. The Court finds the second and third respondents were accessories to and knowingly involved in the said contravention, and accordingly they contravened the same provision. The Court finds Mrs Kumari worked 92.50 order hours before noon on Saturdays and 190 hours afternoon on Saturdays. The Court finds the first respondent was required to pay Mrs Kumari $1,772.73 for ordinary hours worked before noon on Saturdays and $5,654.77 for ordinary hours worked afternoon on Saturdays.

19. The Court finds the first respondent paid Mrs Kumari only $1,606.10 for ordinary hours worked before noon on Saturdays and $2,361.61 in respect of ordinary hours worked afternoon on Saturdays. The Court finds the first respondent underpaid Mrs Kumari the amount of $3,520.79 in respect of ordinary hours worked on a Saturday.

20. The Court finds that the first respondent and the second respondent contravened s.325 of the Act by requiring Mr Dhariwal to pay moneys to the first respondent when customers stole fuel from the first respondent and by requiring Mr Dhariwal to pay moneys to the second respondent upon Mr Dhariwal receiving his annual income tax refund.

21. The Court finds that the second respondent was an accessory and knowingly involved in the said contravention and is accordingly taken to have contravened the same provision. The Court refers to the requirements of s.325 of the Act and finds the requirement in respect of both payments was unreasonable in the circumstances within the meaning of the provision and that the requirement was imposed in relation to the performance at work and was directly or indirectly for the benefit of the first respondent and the second respondent. The Court accepts Mr Dhariwal’s evidence that he was told by the second respondent he was required to pay the first respondent for drive-offs.

22. The Court accepts the evidence of Mr Dhariwal that other employees were required to pay the first respondent the drive-offs. The Court finds that there was a button on the console that Mr Dhariwal was required to press to record receipt of payments by the employee for drive-offs. The Court finds that there was a payment imposed of at least $30.00 by Mr Dhariwal for drive offs necessitated by the first respondent with the knowledge and involvement of the second respondent and was a requirement within the meaning of the provision.

23. The Court finds the requirement was unreasonable as the spending was not for the benefit of Mr Dhariwal at all. The Court also finds that Mr Dhariwal was required by the first respondent to pay moneys to the second respondent in relation to his annual tax income refund. The Court accepts Mr Dhariwal’s evidence that he was told before the commencement of his employment that he was required to give back whatever tax refund the applicant received. The Court finds that Mr Dhariwal’s return was prepared by the second respondent’s accountant and that Mr Dhariwal was asked on several occasions by the second respondent whether his tax had come and that after receiving a tax refund, Mr Dhariwal paid $3,600.00 in cash to the second respondent.

24. The Court finds that the second respondent was knowingly involved in the contravention by the first respondent and that the requirement was obviously unreasonable, taking into account the sum involved and the absence of any benefit to Mr Dhariwal.

25. In relation to leave entitlements, the Court finds the first respondent failed to make and keep proper records in relation to leave entitlements and on termination of employment. Based on the adverse credibility findings the Court finds that the second respondent was knowingly involved as an accessory in that contravention and is taken to have contravened the same provision.

26. The Court finds that Mr Dhariwal was unwell and took personal leave in August 2016. The Court also finds that Mr Dhariwal’s employment ceased in August 2016. The Court refers to the requirements of s.535(1) of the Act in relation to requiring records to be kept in accordance with the Fair Work Regulations 2009 (Cth) (“the Regulations”). The Court also refers to cl.3.36 of the Regulations which requires employers to keep records of any leave that the employee takes and the balance of any employee’s entitlements to that leave from time to time. Clause 3.4 of the Regulations also requires employers to keep certain records relating to termination of employment.

27. The Court finds that the first respondent failed to keep the requisite records in respect of Mr Dhariwal’s leave entitlements and Mrs Kumari’s leave entitlements, and in relation to the termination and cessation of Mr Dhariwal’s employment and the termination and cessation of Mrs Kumari’s employment. The first respondent, thereby, contravened s.535 of the Act. The Court finds that the first respondent failed to issue pay slips to Mr Dhariwal and Mrs Kumari during several periods of their employment. The Court finds that the second respondent was involved in and an accessory to the said contravention by the first respondent and accordingly was taken to have contravened the same provision.

28. The Court finds in the periods being most weeks after January 2016 where no payslips were provided by the first respondent to Mr Dhariwal or Mrs Kumari, the first respondent contravened s.536 of the Act. The Court finds that the second respondent and the third respondent were involved in and an accessory to the said contravention by the first respondent and accordingly was taken to have contravened the same provision.

29. The Court finds the contraventions by the first respondent alleged by the applicant are each established. The Court finds that the second respondent and the third respondent were involved in each of the contraventions by the first respondent as alleged by the applicant.

30. For these reasons, the applicant is entitled to declarations in respect of the involvement in the contraventions of the first respondent by the second respondent and the third respondent as well as compensation orders as sought by the applicant and interest which the Court finds should run from 10 August 2016.

I certify that the preceding one hundred and eighty three (183) paragraphs are a true copy of the written reasons for judgment of Judge Street

Associate:  

Date:  20 January 2020