Fair Work Ombudsman v Yenida Pty Ltd
[2017] FCCA 2299
•26 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v YENIDA PTY LTD & ANOR | [2017] FCCA 2299 |
| Catchwords: INDUSTRIAL LAW – Breaches of award provisions – numerous underpayments – failure to make and keep records – failure to complete rosters – failure to provide payslips within one working day of payment – general protections – Fair Work Act 2009 (Cth) s.342 – adverse action – injury – discrimination – Fair Work Act 2009 (Cth) s.351 – whether respondents took adverse action against two employees because of their race and/or national extraction. |
| Legislation: Anti-Discrimination Act 1998 (Tas) |
| Cases cited: Australian Workers Union and Others v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: Second Respondent: | YENIDA PTY LTD (ACN 008 351 268) CHANG YEN CHANG |
| File Number: | LNG 24 of 2015 |
| Judgment of: | Judge Baker |
| Hearing dates: | 6-10 March 2017, 4 May 2017 and 22 August 2017 |
| Date of Last Submission: | 22 August 2017 |
| Delivered at: | Hobart |
| Delivered on: | 26 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Knowles |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondent: | Ms Jones |
| Solicitors for the Respondent: | PCC Employment Lawyers |
THE COURT ORDERS BY CONSENT THAT:
The First Respondent underpaid:
(a)Mr Kien Hoong Loh: $17,327.74 (gross); and
(b)Ms Kah Yoon Low: $8,775.57 (gross)
THE COURT DECLARES BY CONSENT THAT:
The First Respondent contravened the following civil remedy provisions:
in respect of Mr Loh:
(a)Section 45 of the FW Act as a result of contravening the following clauses of the Hospitality Industry (General) Award 2010 (‘Hospitality Award’):
(i)Clause 32.1, by failing to pay amounts sufficient to meet Mr Loh's entitlement for hours worked on a public holiday;
(ii)Clause 33.3(a)(i) by failing to pay amounts sufficient to meet Mr Loh's entitlement for overtime worked on a weekday;
(iii)Clause 33.3(a)(ii) by failing to pay amounts sufficient to meet Mr Loh's entitlement for overtime worked on a weekend;
(iv)Clauses A.6.4 and A.7.3 by failing to pay Mr Loh an evening loading;
(v)Clause 21.3(a) by failing to pay a broken shift allowance;
(vi)Clause 30.1, by failing to complete rosters as required;
(b)Section 535 of the FW Act by failing to make and keep records of the kind prescribed by reg.3.34 of the Fair Work Regulations 2009 (‘FW Regulations’)
in respect of Ms Low
(c)item 5 of Schedule 16 to the Fair Work (Transitional Provision and Consequential Amendments) Act 2009 (‘Transitional Act’) and section 45 of the FW Act by failing to pay amounts to meet Ms Low's entitlement to a minimum hourly rate of pay in contravention of:
(i)the Australian pay and classification scale (‘Pay Scale’) derived from the Hospitality Industry — Accommodation, Hotels, Resorts and Gaming Award 1998 (‘Pre−Modern Award’); and
(ii)the Hospitality Award;
(d)item 5 of Schedule 16 of the Transitional Act and section 45 of the FW Act by failing to pay amounts sufficient to meet Ms Low's entitlement to casual loading in contravention of:
(i)the Pay Scale; and
(ii)clause 13.1 of the Hospitality Award;
(e)item 2(1) of Schedule 16 to the Transitional Act and section 45 of the FW Act by failing to pay amounts sufficient to meet Ms Low's entitlement for hours worked on a Saturday in contravention of:
(i)clause 15.2.2(b) of the Pre−Modern Award; and
(ii)clause 32.1 of the Hospitality Award;
(f)item 2(1) of Schedule 16 to the Transitional Act and section 45 of the FW Act by failing to pay amounts sufficient to meet Ms Low's entitlement for hours worked on a Sunday in contravention of:
(i)clause 15.2.2(c) of the Pre−Modern Award; and
(ii)clause 32.1 of the Hospitality Award;
(g)item 2(1) of Schedule 16 to the Transitional Act and section 45 of the FW Act by failing to pay amounts sufficient to meet Ms Low's entitlement for hours worked on a public holiday in contravention of:
(i)clause 15.2.2(d) of the Pre−Modern Award; and
(ii)clause 32.1 of the Hospitality Award;
(h)item 2(1) of Schedule 16 to the Transitional Act and section 45 of the FW Act by failing to pay evening loading in contravention of:
(i)clause 15.2.2(a) of the Pre−Modern Award; and
(ii)clause A.5.2 of the Hospitality Award;
(i)section 535 of the FW Act by failing to make and keep records of the kind prescribed by regulation 3.33(2) of the FW Regulations;
in respect of the Audit Employees (as defined in paragraph 31 of the Statement of Agreed Facts)
(j)section 45 of FW Act by as a result of contravening the following clauses of the Hospitality Award:
(i)clause 20, by failing to pay the required minimum hourly rate
(ii)clause 13.1, by failing to pay amounts sufficient to meet the required casual loading;
(iii)clause 32.1, by failing to pay amounts sufficient to meet the required minimum hourly rate of pay for work performed on a Saturday;
(iv)clause 32.1, by failing to pay amounts sufficient to meet the required minimum hourly rate of pay for work performed on a Sunday;
(v)clause 32.1, by failing to pay amounts sufficient to meet the required minimum hourly rate of pay for work performed on a public holiday;
(vi)clauses A.6.4 and A.7.3 by failing to pay the required evening loading;
(vii)clauses A.6.4 and A.7.3 by failing to pay the required early morning loading;
(viii)clause 13.2, by failing to pay for at least a minimum of two hours for each engagement
(ix)clause 31.4, by failing to pay the required loading for shifts worked in excess of six hours were no meal breaks are provided;
(x)clause 25.1, by failing to pay amounts sufficient to meet the required rate if pay when an employee is performing higher duties;
in respect of all employees
(k) section 536 of the FW Act by failing to provide payslips to employees within one working day of payment.
The Second Respondent was involved, within the meaning of section 550 of the FW Act, in the contraventions of the First Respondent at order 2.
THE COURT ORDERS THAT:
This matter be adjourned to 8 December 2017 at 10:00 a.m. for hearing.
The applicant make, file and serve an outline of submissions limited to ten A4 pages and any evidence upon which it intends to rely within 4 weeks of the date of today’s order.
The respondents make, file and serve in reply an outline of submissions limited to ten A4 pages and any evidence upon which they rely within 4 weeks thereafter.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
LNG 24 of 2015
| FAIR WORK OMBUDSMAN |
Applicant
And
| YENIDA PTY LTD (ACN 008 351 268) |
First Respondent
CHANG YEN CHANG
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 30 June 2015, the applicant, the Fair Work Ombudsman (‘FWO’), commenced proceedings against the first and second respondents, Yenida Pty Ltd and Chang Yen Chang respectively (‘the respondents’), for various contraventions under the Fair Work Act 2009 (Cth) (‘FW Act’), Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth) (‘Transitional Act’) and the Fair Work Regulations 2009 (Cth) (‘FW Regulations’).
The respondents have admitted underpayment and record keeping contraventions alleged by the FWO. The following facts are drawn from a statement of agreed facts and admissions, (‘SOAF’) from the pleadings and the oral and affidavit evidence. The SOAF is attached to these reasons. The outstanding issues to be determined are the allegations that the respondents took adverse action against Mr Kien Hoong Loh, also known as Peter, (‘Mr Loh’) and Ms Kah Yoon Low (‘Ms Low’) in contravention of s.351 of the FW Act.
The FWO is a statutory appointee of the Commonwealth under Part 5-2 of the FW Act, a Fair Work Inspector under s.701 of the FW Act, and a person with standing to bring these proceedings under s.539(2) of the FW Act.
At all relevant times the first respondent (‘Yenida’) was a corporation that operated a hotel business, which traded under the name Scamander Beach Resort Hotel (‘the Hotel’). The business had accommodation, a restaurant and a bar in Scamander Tasmania. Yenida was an employer within the meaning of ss.14, 335, and item 1 of the table in s.342(1) of the FW Act.
The second respondent Chang Yen Chang (‘Mr Chang’) was at all relevant times a director and company secretary of Yenida and the general manager of the Hotel. He was responsible for the management of employees as set out in paragraph 126 of the SOAF.
Mr Loh is a Malaysian national of Chinese descent. He was employed by Yenida from around 17 July 2007 until 20 April 2014 on a full-time basis. He was at all relevant times an employee of Yenida within the meaning of s.335 and item 1 of the table in s.342(1) of the FW Act. He performed the role of head chef. He received a Certificate III in Commercial Cookery on or around 14 December 2012. He lived on premises at the Hotel in a standard guest room.
On or around 2 April 2008, Mr Loh was granted a 457 visa for the purposes of performing work for Yenida. He obtained permanent Australian residency in around April 2013. On 20 April 2014, he resigned from his employment without notice.
Ms Low is also a Malaysian national of Chinese descent. She is married to Mr Loh. She was employed by Yenida from around 7 September 2009 to 17 January 2010 on a casual basis. She was at all relevant times an employee of Yenida within the meaning of s.335 and item 1 in the table at s.342(1) of the FW Act. She performed the role of a kitchen hand. From at least 1 January 2009, she lived on premises at the business in a standard guest room, sharing accommodation with her husband.
On about 15 April 2008, Ms Low was granted a spousal visa in connection with Mr Loh’s 457 visa. Ms Low obtained permanent Australian residency in around April 2013.
These proceedings commenced as a result of the FWO’s investigation of complaints made by Mr Loh and Ms Low in respect of their employment with Yenida for the periods 1 January 2010 to 20 April 2014, in respect of Mr Loh, (‘Loh assessment period’) and the period 7 September 2009 to 17 January 2010 for Ms Low (‘Low employment period.’)
The FWO also conducted an audit into the amounts paid to 15 further employees listed in paragraph 33 of the SOAF, (‘audit employees’), for the period 31 December 2012 to 31 August 2014 (‘audit period’).The audit employees were engaged on a casual basis. It is agreed that each audit employee is an Australian national and of Caucasian descent.[1]
[1] Amended Statement of Claim filed 20 May 2016 [38]-[39]; Further Amended Defence of the First Respondent filed 15 September 2016 [38]-[39]; Further Amended Defence of the Second Respondent filed 15 September 2016 [38]-[39].
At all relevant times, Yenida was required to comply with the FW Act and the FW Regulations. From 1 July to 31 December 2009, Yenida was required to comply with the Transitional Act.
From 1 July 2009 to 31 December 2009, the Hospitality Industry-Accommodation, Hotels, Resorts and Gaming Award 1998 (‘Pre-Modern Award’) and the Pay and Classification Scale (‘Pay Scale’), derived from the Pre-Modern Award, applied to and covered Yenida in respect of its employees.
From 1 January 2010, the Hospitality Industry (General) Award 2010 (‘Hospitality Award’) applied to and covered Yenida in respect of its employees.[2]
[2] Exhibit R3.
Yenida was required to pay the minimum rates of pay to its employees.
Underpayment contraventions: Mr Loh
The FWO calculates underpayments by applying the actual salary paid to the employee in the following order until exhausted: to the minimum hourly rate, the weekend and public holiday penalty rates, overtime entitlements, and allowances or loadings payable in addition to the base hourly rate of pay.[3] An increase in the minimum hourly rate of pay means that there is less money left to pay the penalty rates, which means that more penalty rates or entitlements may be left unpaid or underpaid.
[3] Amended Statement of Claim filed 20 May 2016 [53]; Further Amended Defence of the First Respondent filed 15 September 2016 [53]; Further Amended Defence of the Second Respondent filed 15 September 2016 [53].
Mr Loh performed work within the following classifications of the Hospitality Award: as a cook Grade 2, at all relevant times prior to and including 14 December 2012, and as a cook (Tradesperson) Grade 5 from 15 December 2012.[4]
[4] Statement of Agreed Facts filed 3 March 2017 [39].
The hours worked by Mr Loh, and his annual leave taken, are set out in paragraphs 41-43 and sch.A of the SOAF. He worked between 33 and 57 hours per week. The pattern of work changed from a high trade work pattern to a low trade work pattern, which varied over each year, as set out in paragraphs 41 and 42 of the SOAF. On occasions he worked a different pattern of hours as set out in paragraph 44 and schs.AA and B of the SOAF.
Mr Loh was paid an annual salary of $45,240 from 1 January 2010 to the pay period ending 3 July 2011, and $46,280 from 6 July 2011 to 13 April 2014.
The minimum rates of pay required to be paid by Yenida to Mr Loh, pursuant to cl.20 of the Hospitality Award, for ordinary hours worked on a weekday, are set out in paragraph 48 of the SOAF. The applicant has not alleged that Yenida failed to pay Mr Loh the minimum rate of pay for these hours.
Yenida was required to pay the minimum rates of pay for Saturday ordinary hours set out in paragraph 56 of the Amended Statement of Claim (‘ASOC’). Yenida paid Mr Loh amounts sufficient to meet his entitlement to payment for Saturday ordinary hours.[5]
[5] Amended Statement of Claim filed 20 May 2016 [58]; Further Amended Defence of the First Respondent filed 15 September 2016 [58]; Further Amended Defence of the Second Respondent filed 15 September 2016 [58].
The public holiday rates of pay and the hours worked by Mr Loh on public holidays are set out in paragraphs 49 and 50 of the SOAF. Yenida paid Mr Loh $10,715.87 for public holiday hours. It is agreed that Yenida underpaid Mr Loh $1,628.14 for public holiday hours.
The rates of pay for weekday overtime, which Mr Loh was entitled to be paid, and the number of weekday overtime hours Mr Loh worked are set out in paragraphs 54, 55 and 56 of the SOAF.
Yenida paid Mr Loh $1,506.20 for overtime worked on a weekday. It is agreed that Yenida underpaid Mr Loh $321.71 for weekday overtime.
The weekend overtime rates of pay required to be paid by Yenida to Mr Loh are set out in paragraphs 60 and 61 of the SOAF. The number of weekend overtime hours worked by him and the amount he was entitled to be paid are set out in paragraphs 62 of the SOAF. Yenida paid Mr Loh $38,117.67 for weekend overtime. It is agreed that Yenida underpaid Mr Loh $16,584.09 for weekend overtime.
Yenida was required to pay Mr Loh an evening loading in addition to his minimum hourly wage for all ordinary hours worked between 7.00 p.m. and midnight on a weekday. The amounts per hour for evening loading Yenida was required to pay Mr Loh, and the hours worked by him that he was entitled to be paid for, are set out in paragraphs 67-68 of the SOAF. Yenida paid Mr Loh $1,708.45 for evening loading hours. It is agreed that Yenida underpaid Mr Loh $1,757.40 for evening loading hours.
Yenida was required to pay Mr Loh a broken shift allowance per day for the amount set out in paragraph 73 of the SOAF. During the periods set out in paragraph 74, Mr Loh was entitled to be paid the amounts set out. Yenida paid Mr Loh $764.47 for broken shift allowance. It is agreed that Yenida underpaid Mr Loh $259.28 for broken shift allowance.
Yenida underpaid Mr Loh a total of $21,124.84.[6]
[6] Statement of Agreed Facts filed 3 March 2017 [78].
Mr Loh resigned without notice on 20 April 2014. He was required to give Yenida four weeks’ notice of his resignation. It is agreed that pursuant to cl.16.2(a) of the Hospitality Award, Yenida was entitled to withhold monies due to an employee on termination equal to the amount that the employer would have been paid if he or she had worked for the required notice period. Mr Loh was entitled to be paid $1,341.93 for his final week of work.
Yenida did not pay Mr Loh any amount in respect of his final week of work and was entitled to withhold $1,341.93 for any monies due to him on termination of employment.
In closing, counsel for the applicant indicated that the applicant was not pursuing from Yenida the sum of $2,455.04, an amount for which Mr Loh and Ms Low had the benefit of prior to Ms Low’s employment. In an order sought by consent, this amount was deducted from the total amount owing to Mr Loh.
As a result, it is agreed that Yenida repay Mr Loh a total of $17,327.74.
Yenida committed the following underpayment contraventions in respect of Mr Loh:
i)failure to pay amounts sufficient to meet Mr Loh’s entitlement for hours worked on a public holiday: cl.32.1 of the Hospitality Award and s.45 of the FW Act;
ii)failure to pay amounts sufficient to meet Mr Loh's entitlement for overtime worked on a weekday: cl.33.3(a)(i) the Hospitality Award and s.45 of the FW Act;
iii)failure to pay amounts sufficient to meet Mr Loh's entitlement for overtime worked on a weekend: cl.33.3(a)(ii) the Hospitality Award and s.45 of the FW Act;
iv)failure to pay Mr Loh an evening loading: cls.A.6.4 and A.7.3 the Hospitality Award and s.45 of the FW Act;
v)failure to pay a broken shift allowance: cl.21.3(a) the Hospitality Award and s.45 of the FW Act;
Underpayment contraventions: Ms Low
Ms Low performed work within the classification of Kitchen Attendant Grade 1 under the Pre-Modern Award and the Hospitality Award.
During her employment period, Ms Low worked days and hours set out in sch.BB of the SOAF. During her employment Ms Low was paid a weekly wage of:
(a) $594.66 (gross) for the week of 7 to 13 September 2009;
(b) $451 (gross) for the week of 14 September to 20 September 2009; and
(c) $446 (gross) for the remainder of her employment period.
Yenida was required to pay Ms Low an hourly rate of $14.75 for all hours worked on a weekday: Pay Scale and cl.20 of the Hospitality Award. She worked 584.50 weekday hours and was entitled to be paid $8,621.38. Yenida paid her $6,061.81 for weekday hours. It underpaid her $2,559.57.[7]
[7] Ibid [89]-[93].
Yenida was required to pay Ms Low casual loading of $3.69 per hour for all weekday hours: Pay Scale and cl.13.1 Hospitality Award. She worked 584.50 weekday hours and was entitled to a casual loading of $2,156.85. She was not paid any casual loading. Yenida admits that it underpaid her $2,156.85.[8]
[8] Ibid [94]-[98].
Yenida was required to pay Ms Low an hourly rate of $22.13 for all hours worked on a Saturday: cl.15.2.2(b) of the Pre-Modern award and cl.32.1 of the Hospitality Award. She worked 134.50 Saturday hours and was entitled to be paid $2,976.49. She was paid $1,440.56. Yenida admits that it underpaid Ms Low $1,535.93.[9]
[9] Ibid [99]-[103].
Yenida was required to pay Ms Low an hourly rate of $25.81 for all hours worked on a Sunday: cl.15.2.2(c) of the Pre-Modern Award and cl.32.1 of the Hospitality Award. She worked 103.50 Sunday hours and was entitled to be paid $2,671.34. Yenida paid her $979.03 for Sunday hours and it is agreed that it underpaid her $1,692.31. [10]
[10] Ibid [104]-[108].
Yenida was required to pay Ms Low an hourly rate of $40.56 for all hours worked on a public holiday: cl.15.2.2(d) of the Pre-Modern Award and cl.32.1 of the Hospitality Award. She worked 16.50 public holiday hours and was entitled to be paid $669.24. Yenida paid her $147.26 and it is agreed that it underpaid her $521.98.[11]
[11] Ibid [109]-[113].
Yenida was required to pay Ms Low evening loading of $1.63 per hour for all evening loading hours: cl.15.2.2(a) of the Pre-Modern Award and cl.A.5.2 of the Hospitality Award. She worked 189.5 evening loading hours and was entitled to be paid $308.93. She was not paid any additional loading for evening loading hours and it is agreed that Yenida underpaid her $308.93.[12]
[12] Ibid [114]-[118].
Yenida underpaid Ms Low a total amount of $8,775.57 during her employment period.
Yenida committed the following underpayment contraventions in respect of Ms Low:
i)failure to pay amounts to meet Ms Low’s entitlement to a minimum hourly rate of pay: item 5 of sch.16 of the Transitional Act, Pay Scale from 7 September to 31 December 2009; and s.45 of the FW Act, cl.20 of the Hospitality Award from 1 January to 17 January 2010;
ii)failure to pay amounts sufficient to meet Ms Low’s entitlement to casual loading: item 5 of sch.16 of the Transitional Act, Pay Scale from 7 September 2009 to 31 December 2009; and s.45 of the FW Act, cl.13.1 of the Hospitality Award from 1 January 2010 to 17 January 2010;
iii)failure to pay amounts sufficient to meet Ms Low’s entitlement for hours worked on a Saturday: Item 2(1) of sch.16 of the Transitional Act, cl.15.2.2(b) of the Pre-Modern Award from 7 September 2009 to 31 December 2009; and s.45 of the FW Act and cl.32.1 of the Hospitality Award from 1 January 2010 to 17 January 2010;
iv)failure to pay amounts sufficient to meet Ms Low’s entitlement for hours worked on a Sunday: Item 2(1) of sch.16 of the Transitional Act, cls.15.2.2 and 15.2.2(c) of the Pre-Modern Award from 7 September 2009 to 31 December 2009; and s.45 FW Act, cl.32.1 of the Hospitality Award from 1 January 2010 to 17 January 2010;
v)failure to pay amounts sufficient to meet Ms Low’s entitlement for hours worked on a public holiday: item 2(1) of sch.16 of the Transitional Act, s, cl.15.2.2(d) of the Pre-Modern Award from 7 September 2009 to 31 December 2009; and s.45 of the FW Act cl.32.1 of the Hospitality Award from 1 January 2010 to 17 January 2010;
vi)failure to pay evening loading: item 2(1) of sch.16 of the Transitional Act, cl.15.2.2(a) of the Pre-Modern Award from 7 September 2009 to 31 December 2009; and s.45 of the FW Act , cl.A.5.2 of the Hospitality Award from 1 January 2010 to 17 January 2010.
Underpayment Contraventions: Audit Employees
The ASOC provides details in relation to the audit employees, most of which were admitted by the respondents in their Further Amended Defences. The following facts are drawn from the ASOC and the Further Amended Defences.
The 15 audit employees were all employed by Yenida during the audit period, and include:
a)Christine Byrne;
b)Sonia Cymbalak;
c)Annette Earley;
d)Mary Gavaghan;
e)Lynette Harrison;
f)Megan Jacobi;
g)Susan Lea;
h)Sarah McKimmie;
i)Jacqueline Midson;
j)Virginia Moore;
k)Craig O’Shea;
l)Eldene O’Shea;
m)Tadgh Riley;
n)Sharon Street; and
o)Darlene Wright.
Each of the audit employees is of Caucasian race and Australian national extraction. They were all 21 years of age or older during the audit period, and were all employed on a casual basis pursuant to cl.13.1 of the Hospitality Award. They worked a variety of days including Saturdays, Sundays and Public Holidays. The number of hours worked by each of the audit employees was derived from timesheets made and kept by Yenida.
All of the audit employees were either employed by or performed worked for Yenida for the whole audit period, except for:
a)Ms Cymbalak, who performed worked for Yenida until 31 August 2014. She performed the role of chef and would cook meals for the restaurant’s dinner service. She had a formal trade qualification equivalent to that of a completed cooking apprenticeship. She was classified as a Cook (Tradesperson) Grade 3 under the Hospitality Award;
b)Mr E O’Shea, who performed work for Yenida between about 24 January 2013 and 5 January 2014. He worked as part of the bar staff who undertook both the waiter and bar attendant role. The role of the bar staff was to take orders, prepare drinks (including alcoholic beverages), operate the electronic gaming terminals and serve patrons at the bottle shop. Mr O’Shea had a gaming licence and was classified as a Food and Beverage Attendant Grade 3;
c)Ms Midson, who performed work for Yenida between about 31 December 2012 and 3 February 2013, and also worked an additional shift on 19 April 2014. She worked as a kitchen-hand and would undertake general cleaning in the kitchen, including washing dishes. She was classified as a Kitchen Attendant Grade 1; and
d)Mr Riley, who performed work for Yenida between about 14 July 2014 to 31 August 2014. He performed the role of cook which involved the preparation and cooking of meals for the restaurant’s dinner service. He did not have a formal trade qualification in cooking, and was classified as a Cook Grade 2 under the Hospitality Award.
The audit employees who were employed by or performed work for Yenida for the entirety of the audit period undertook the following roles:
a)Ms Gavaghan, Ms Moore and Ms Wright performed the role of housemaid, which involved the servicing of guest bedrooms. The housemaids were classified as Guest Service Grade 2 of the Hospitality Award;
b)Ms Lea and Ms Harrison performed the role of cleaner. In that role they would undertake general cleaning in the restaurant, bar, foyer and hallways, but did not clean guest bedrooms. The cleaners were classified as Guest Service Grade 1 of the Hospitality Award.
c)Ms Early performed the role of breakfast cook, which involved preparing breakfast for guests and sometimes preparing food for the lunch and dinner service in the restaurant. She did not hold a formal trade qualification in cooking and was classified as a Cook Grade 1 under the Hospitality Award;
d)Ms Street, Ms Jacobi and Mr C O’Shea, along with Mr E O’Shea (who as discussed earlier did not work for the entire length of the audit period), performed the roles of wait staff and bar attendants (known as the ‘bar staff’). The role of the bar staff was to take orders, prepare drinks (including alcohol beverages), operate the electronic gaming terminals and serve patrons at the bottle shop attached to the Hotel. All of the bar staff had gaming licences and were classified as Food and Beverage Attendants Grade 3 under the Hospitality Award;
e)Ms Byrne performed the role of waitress, which involved waiting on customers in the restaurant, taking orders and serving food. She was classified as a Food and Beverage Attendant Grade 2 under the Hospitality Award; and
f)Ms McKimmie performed the role of receptionist. She worked at the front office of the business, and would answer phones, take reservations, process guest check-in and check-out and file documents. She commenced working for Yenida in March 2010. She was classified as Front of House Grade 2 under the Hospitality Award.
The following tables outline the relevant contraventions and underpayments to each of the audit employees:
CHRISTINE BYRNE
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under- payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 838.48 | $3,660.82 | $2,269.95 | -$1,390.87 |
| Saturday | cl.32.1 of the Hospitality Award | 127.92 | $3,361.71 | $3,132.80 | -$228.91 |
| Sunday | cl.32.1 of the Hospitality Award | 23.25 | $709.71 | $618.46 | -$91.25 |
| Public Holiday | cl.32.1 of the Hospitality Award | 29.75 | $1,414.50 | $1,305.73 | -$108.77 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 2.25 | $54.02 | $0.00 | -$54.02 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 2 | $16.51 | $0.00 | -$16.51 |
| Total Underpayment | -$1,890.33 | ||||
SONIA CYMBALAK
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under- payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 38 | $186.58 | $159.50 | -$27.08 |
| Saturday | cl.32.1 of the Hospitality Award | 11.5 | $235.68 | $228.85 | -$6.83 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 0.5 | $13.26 | $0.00 | -$13.26 |
| Total Underpayment | -$47.17 | ||||
ANNETTE EARLEY
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 468.50 | $2,033.41 | $1,154.99 | -$878.42 |
| Saturday | cl.32.1 of the Hospitality Award | 106.25 | $2,757.81 | $2,542.71 | -$214.10 |
| Sunday | cl.32.1 of the Hospitality Award | 113.25 | $3,427.55 | $3,147.19 | -$280.36 |
| Public Holiday | cl.32.1 of the Hospitality Award | 31.75 | $1,508.59 | $1,393.52 | -$115.07 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 3 | $5.28 | $0.00 | -$5.28 |
| Evening Loading | cls.A.6.4 and A.7.3 of sch.A of the Hospitality Award | 2.25 | $6.29 | $0.00 | -$6.29 |
| Early Morning Loading | cls.A.6.4 and A.7.3 of sch.A of the Hospitality Award | 68.5 | $1,675.83 | $0.00 | -$1,675.83 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 7.75 | $45.75 | $0.00 | -$45.75 |
| Total Underpayment | -$3,221.10 | ||||
MARY GAVAGHAN
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 862.5 | $3,745.03 | $2,335.67 | -$1,409.36 |
| Saturday | cl.32.1 of the Hospitality Award | 98 | $2,548.98 | $2,421.90 | -$127.08 |
| Sunday | cl.32.1 of the Hospitality Award | 51.25 | $1,548.80 | $1,431.41 | -$117.38 |
| Public Holiday | cl.32.1 of the Hospitality Award | 16.25 | $765.62 | $713.21 | -$52.41 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 2.25 | $38.44 | $0.00 | -$38.44 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 4.75 | $30.42 | $0.00 | -$30.42 |
| Total Underpayment | -$1,775.09 | ||||
LYNETTE HARRISON
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Base Rate | cl. 20 of the Hospitality Award | 0.5 | $8.43 | $0.00 | -$8.43 |
| Casual Loading | cl.13.1 of the Hospitality Award | 380.74 | $1,597.23 | $1,134.01 | -$463.22 |
| Saturday | cl.32.1 of the Hospitality Award | 4.42 | $108.86 | $99.75 | -$9.11 |
| Public Holiday | cl.32.1 of the Hospitality Award | 15 | $689.69 | $625.43 | -$64.26 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 0.5 | $10.27 | $0.00 | -$10.27 |
| Total Underpayment | -$555.29 | ||||
MEGAN JACOBI
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 1976.25 | $8,908.59 | $6,596.60 | -$2,311.99 |
| Saturday | cl.32.1 of the Hospitality Award | 296.5 | $7,999.33 | $7,727.61 | -$271.72 |
| Sunday | cl.32.1 of the Hospitality Award | 78.5 | $2,469.59 | $2,320.33 | -$149.36 |
| Public Holiday | cl.32.1 of the Hospitality Award | 76 | $3,738.61 | $3,451.64 | -$286.96 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 2.75 | $75.18 | $0.00 | -$75.18 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 279.25 | $1,962.97 | $0.00 | -$1,962.97 |
| Total Underpayment | -$5,058.18 | ||||
SUSAN LEA
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Base Rate | cl. 20 of the Hospitality Award | 2 | $32.84 | $0.00 | -$32.84 |
| Casual Loading | cl.13.1 of the Hospitality Award | 250.33 | $1,048.93 | $838.97 | -$209.96 |
| Saturday | cl.32.1 of the Hospitality Award | 158.74 | $3,990.03 | $3,888.10 | -$101.93 |
| Sunday | cl.32.1 of the Hospitality Award | 160.33 | $4,699.00 | $4,509.05 | -$189.95 |
| Public Holiday | cl.32.1 of the Hospitality Award | 8.25 | $377.54 | $362.09 | -$15.45 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 0.33 | $7.16 | $0.00 | -$7.16 |
| Total Underpayment | -$557.29 | ||||
SARAH MCKIMMIE
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Base rate | cl. 20 of the Hospitality Award | 22.5 | $393.75 | $272.80 | -$120.95 |
| Casual Loading | cl.13.1 of the Hospitality Award | 1365 | $6,144.63 | $3,737.27 | -$2,377.36 |
| Saturday | cl.32.1 of the Hospitality Award | 50.25 | $1,346.20 | $1,155.84 | -$190.36 |
| Sunday | cl.32.1 of the Hospitality Award | 17 | $531.10 | $493.00 | -$38.10 |
| Public Holiday | cl.32.1 of the Hospitality Award | 9 | $447.84 | $275.54 | -$172.32 |
| Evening Loading | cls.A.6.4 and A.7.3 of sch.A of the Hospitality Award | 2 | $3.52 | $0.00 | -$3.52 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 97.66 | $661.57 | $0.00 | -$661.57 |
| Total Underpayment | -$3,564.18 | ||||
JACQUELINE MIDSON
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 83 | $341.13 | $44.06 | -$297.07 |
| Sunday | cl.32.1 of the Hospitality Award | 1.5 | $43.11 | $34.80 | -$8.31 |
| Public Holiday | cl.32.1 of the Hospitality Award | 4 | $180.64 | $147.43 | -$33.32 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 0.5 | $14.37 | $0.00 | -$14.37 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 7.75 | $38.21 | $0.00 | -$38.21 |
| Higher Duties | cl.25.1 of the Hospitality Award | 9.25 | $197.21 | $156.79 | -$40.42 |
| Total Underpayment | -$431.70 | ||||
VIRGINIA MOORE
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 362.25 | $1,574.32 | $1,212.30 | -$362.02 |
| Saturday | cl.32.1 of the Hospitality Award | 6 | $153.48 | $149.14 | -$4.34 |
| Sunday | cl.32.1 of the Hospitality Award | 12.25 | $370.22 | $355.23 | -$14.99 |
| Public Holiday | cl.32.1 of the Hospitality Award | 10.5 | $496.31 | $469.97 | -$26.34 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 0.25 | $5.57 | $0.00 | -$5.47 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 1.5 | $7.67 | $0.00 | -$7.67 |
| Total Underpayment | -$420.83 | ||||
CRAIG O’SHEA
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 1263.25 | $5,666.13 | $4,343.62 | -$1,322.51 |
| Saturday | cl.32.1 of the Hospitality Award | 362 | $9,795.40 | $9,404.61 | -$390.79 |
| Sunday | cl.32.1 of the Hospitality Award | 23 | $721.93 | $674.54 | -$46.39 |
| Public Holiday | cl.32.1 of the Hospitality Award | 52.5 | $2,570.19 | $2,342.14 | -$228.05 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 10.5 | $239.43 | $0.00 | -$239.43 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 49 | $307.96 | $0.00 | -$307.96 |
| Total Underpayment | -$2,535.13 | ||||
ELDENE O’SHEA
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 12.17 | $55.13 | $22.64 | -$32.49 |
| Saturday | cl.32.1 of the Hospitality Award | 4.25 | $115.25 | $101.75 | -$13.60 |
| Sunday | cl.32.1 of the Hospitality Award | 3.5 | $110.85 | $97.76 | -$13.09 |
| Total Underpayment | -$59.18 | ||||
TADGH RILEY
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Underpayment |
| Casual Loading | cl.13.1 of the Hospitality Award | 59.25 | $276.11 | $235.32 | -$40.79 |
| Saturday | cl.32.1 of the Hospitality Award | 12.25 | $342.51 | $332.41 | -$10.10 |
| Total Underpayment | -$50.89 | ||||
SHARON STREET
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 1384.50 | $6,237.50 | $1,342.44 | -$1,342.44 |
| Saturday | cl.32.1 of the Hospitality Award | 482.75 | $13,031.84 | $12,577.05 | -$454.79 |
| Sunday | cl.32.1 of the Hospitality Award | 660.50 | $20,809.47 | $19,639.03 | -$1,170.44 |
| Public Holiday | cl.32.1 of the Hospitality Award | 44.5 | $2,201.72 | $2,087.35 | -$114.37 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 325.25 | $2,256.60 | $0.00 | -$2,256.60 |
| Total Underpayment | -$5,338.64 | ||||
DARLENE WRIGHT
| Type of Entitlement | Contravention of Section 45 of the FW Act by Virtue of Contravention of: | Hours | Monetary Entitlement | Paid | Under-payment |
| Casual Loading | cl.13.1 of the Hospitality Award | 824.50 | $3,586.64 | $2,856.80 | -$729.84 |
| Saturday | cl.32.1 of the Hospitality Award | 112.71 | $2,920.54 | $2,806.19 | -$114.35 |
| Sunday | cl.32.1 of the Hospitality Award | 45.5 | $1,366.69 | $1,319.49 | -$47.20 |
| Public Holiday | cl.32.1 of the Hospitality Award | 23.35 | $1,106.67 | $1,059.27 | -$47.40 |
| Minimum Engagement | cl.13.2 of the Hospitality Award | 1 | $25.28 | $0.00 | -$25.28 |
| Delayed Meal Break Loading | cl.31.4 of the Hospitality Award | 3 | $19.58 | $0.00 | -$19.58 |
| Total Underpayment | -$983.65 | ||||
Yenida committed the following underpayment contraventions in respect of the audit employees:
i)failure to pay the required minimum hourly rate: s.45 of the FW Act and cl.20 of the Hospitality Award;
ii)failure to pay amounts sufficient to meet the required casual loading: s.45 of the FW Act and cl.13.1 of the Hospitality Award;
iii)failure to pay amounts sufficient to meet the required minimum hourly rate of pay for work performed on a Saturday: s.45 of the FW Act and cl.32.1 of the Hospitality Award;
iv)failure to pay amounts sufficient to meet the required minimum hourly rate of pay for work performed on a Sunday: s.45 of the FW Act and cl.32.1 of the Hospitality Award;
v)failure to pay amounts sufficient to meet the required minimum hourly rate of pay for work performed on a public holiday: s.45 of the FW Act and cl.32.1 of the Hospitality Award;
vi)failure to pay the required evening loading: s.45 of the FW Act and cls.A.6.4 and A.7.3 of the Hospitality Award;
vii)failure to pay the required early morning loading: s.45 of the FW Act and cls.A.6.4 and A.7.3 of the Hospitality Award;
viii)failure to pay for at least a minimum of two hours for each engagement: s.45 of the FW Act and cl.13.2 of the Hospitality Award;
ix)failure to pay the required loading for shifts worked in excess of six hours when no meal breaks were provided: s.45 of the FW Act and cl.31.4;
x)failure to pay amounts sufficient to meet the required rate of pay when an employee is performing higher duties: s.45 of the FW Act and cl.25.1 of the Hospitality Award.
Yenida and Mr Chang admitted that as a result of the contraventions listed above the audit employees were underpaid a total of $26,566.24 by Yenida.
There was initially some disagreement about the underpayment of Sarah McKimmie’s minimum hourly rate of pay for weekday hours (referred to as ‘Base Rate’ in the tables above).[13] The figure was later agreed to be an underpayment of $120.95 rather than the $198.54 initially claimed by the applicant.[14] Once this figure is taken into account the underpayment to the audit employees totals $26,488.65.
[13] Further Amended Defence of the First Respondent filed 15 September 2016 [122], [124]; Further Amended Defence of the Second Respondent filed 15 September 2016 [122], [124].
[14] Statement of Agreed Facts filed 3 March 2017 [120]-[124].
Record Keeping Contraventions: Mr Loh
It is agreed that, in respect of Mr Loh, Yenida failed to make and complete records of the kind prescribed by reg.3.34 of the FW Regulations in contravention of s.535 of the FW Act.
Record Keeping Contraventions: Ms Low
In relation to Ms Low, Yenida failed to make and complete records of the kind prescribed by reg.3.33(2) of the FW Regulations in contravention of s.535 of the FW Act.
Failure to Complete Rosters
In relation to Mr Loh, Yenida failed to complete rosters as required: cl.30.1 of the Hospitality Award and s.45 of the FW Act.
Failure to Provide Payslips to Employees within one Working Day of Payment
It is agreed that Yenida contravened s.536 of the FW Act in respect of all employees by failing to provide them with payslips within one working day of payment.
Rectification of Underpayments
The respondents have entered into a payment plan to rectify the underpayments to Mr Loh and Ms Low.
The underpayments to the audit employees have been rectified by the respondents.
Accessorial Liability of the Second Respondent – Section 550 of the FW Act
In order for a person to be found liable under s.550(2)(a) and/or (c) it must be established that the person intentionally participated in the contravention.[15] It has been found that the requisite intent requires the person to have knowledge of the ‘essential elements’ which make up the contravention.[16] It is not necessary for a person to know the conduct amounted to a contravention.[17]
[15] Yorke and Lucas (1985) 158 CLR 661, 667, 670.
[16] Ibid 667, 670.
[17] Ibid 667.
Mr Chang was, at all relevant times, a person responsible for the overall direction and management of Yenida, and:
[W]as, at all relevant times, a person responsible for:
(a) making decisions on behalf of the First Respondent about rates of pay that would be paid to employees engaged to perform work for the First Respondent;
(b) making decisions on behalf of the First Respondent about the shifts and hours to be worked by employees of the First Respondent;
(c) Making decisions on behalf of the First Respondent about the terms and conditions of employment that would (or would not be) provided to employees engaged to perform work for the First Respondent;
(d) Making operational decisions about the running of the business; and
(e) Making and keeping employee records on behalf of the First Respondent.[18]
[18] Statement of Agreed Facts filed 3 March 2017 [126].
Mr Chang was a person responsible for ensuring that Yenida complied with its legal obligations under the FW Act and the Transitional Act.[19]
[19] Ibid [127].
In regard to Mr Chang’s knowledge of employment and employment conditions, he was at all relevant times a person responsible for hiring employees for Yenida, and the person responsible for employing Mr Loh and Ms Low.[20] Mr Chang knew at all relevant times the duties performed by, and amounts paid as wages to, Mr Loh and Ms Low, as well as what times Mr Loh started and finished work.[21]
[20] Ibid [128].
[21] Ibid [129].
At all relevant times Mr Chang:
(a)knew that Ms Low worked various hours including after 7:00pm and on weekends and public holidays;
(b)knew that Ms Low worked, on average, six days a week;
(c)knew that the First Respondent did not keep records or ensure records were kept of the hours Ms Low worked;
(d)knew that the amounts paid to her did not vary by reference to the hours or days she worked; and
(e)failed to ensure that Ms Low was paid in accordance with the hours actually worked.[22]
[22] Ibid [130].
At all relevant times Mr Chang knew that the Pre-Modern Award and Hospitality Award:
i)applied to Yenida and its employees; and
ii)set out minimum rates of pay and conditions for employees including minimum hourly rates, penalty rates, overtime rates, casual loading and evening loading.[23]
[23] Ibid [131].
Mr Chang aided, abetted, counselled or procured, or by way of his acts or omissions, was directly or indirectly knowingly concerned in or party to, each of the contraventions admitted by Yenida in paragraph 4 of the SOAF.[24]
[24] Ibid [132].
Mr Chang, by reason of the matters admitted in paragraph 132 of the SOAF, is to be treated as having himself contravened each of the provisions alleged to have been contravened by Yenida pursuant to s.550(1) of the FW Act.[25]
[25] Ibid [133].
Evidence Relied Upon
The FWO relied on the following affidavits:
·Affidavits of FWI Desmond affirmed on 27 October 2017 and 30 January 2017;
·Affidavits of Kien Hoong Loh affirmed 24 October 2017 and 1 February 2017;
·Affidavits of Kah Yoon Low sworn 26 October 2016 and 1 February 2017;
·Affidavit of Chris Reid affirmed 5 March 2017; and
·Affidavit of Adrian Winoto affirmed 6 February 2017.
FWI Desmond, Mr Loh, Ms Low, Mr Reid, and Mr Winoto were cross-examined.
The respondents relied on the following affidavits:
·Affidavits of Chang Yen Chang affirmed 18 December 2015; 20 December 2016 and 1 March 2017;
·Affidavits of Megan Jacobi affirmed 16 December 2015 and 13 January 2017.
Mr Chang was cross-examined. Ms Jacobi was not required for cross-examination.
Mrs Vanida Chang affirmed an affidavit on 20 December 2015. During the hearing, counsel for the respondents indicated that it was not relied upon.
The court had the benefit of the SOAF, written outlines of argument and written closing submissions.
Legislative Provisions
Section 351 of the FW Act relevantly provides:
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination law:
… (ac) the Racial Discrimination Act 1975;…
(f) the Anti‑Discrimination Act 1998 of Tasmania;
Section 342(1) item 1of the FW Act provides that:
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
| Meaning of adverse action | ||
| Item | Column 1 Adverse action is taken by ... | Column 2 if ... |
| 1 | an employer against an employee | the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer. |
Section 360 provides:
Multiple Reasons For Action
For the purposes of this Part, a person takes action for a particular reason if the reasons for that action include that reason.
Section 361 contains a reverse onus provision as follows:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Section 550 provides:
550Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved ina 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.
The Witnesses
Evidence of Fair Work Inspector Kristen Desmond
Fair Work Inspector Kristen Desmond (‘FWI Desmond’) affirmed affidavits on 27 October 2016 and 30 January 2017.
FWI Desmond conducted the investigation into complaints made by Mr Loh and Ms Low in relation to Yenida. A subsequent audit was undertaken in respect of Yenida.
FWI Desmond also gave oral evidence and was cross-examined briefly. She was a credible witness and I accept her evidence.
Evidence of Mr Kien Hoong Loh
Mr Loh affirmed affidavits on 24 October 2016 and 1 February 2017.
He is 51 years of age. He was born in Malaysia and is of Chinese decent. Prior to moving to Tasmania in 2007, he lived and worked in Kuala Lumpur as a chef from the age of 21.
In 2007, after Ms Low showed Mr Loh an advertisement for a chef position with the Hotel in Tasmania, he applied for the position.
Mr Loh accepted the salary and hours of work offered by Yenida after comparing them to his salary and hours of work in Malaysia.
In an email to Mr Loh, after he had queried the employment contract, Mr Chang wrote:
…Let me assure you that you have nothing to worry about. This agreement is a standard format for employment agreements used in Australia, I hope you understand that its use is normal procedure and is not meant to be treatening (sic) or ominous in any way…[26]
[26] Affidavit of Kien Hoong Loh affirmed 24 October 2016, Annexure KHL-7.
Mr Loh signed a contract dated 20 June 2007. His salary was $39,000 per annum gross; his working hours were stated as generally 11:00 a.m. to 3:00 p.m. for lunch and 5:00 p.m. to 9:30 p.m. for dinner; and he was required to work six days per week. These working hours total 51 hours a week.
Mr Loh arrived in Tasmania on or about 11 July 2007 and began work a few days later. He worked for Yenida as the head chef on a full-time basis until he resigned on 20 April 2014. He lived on the premises at the Hotel in a standard guest room. He did not pay for accommodation or food.
Mr Loh’s work as a chef involved a large range of tasks, including but not limited to running the kitchen, organising the kitchen, planning the menu, cooking and ordering stock. He was a dedicated worker, and one of the longest serving employees.
When Mr Loh first arrived, he started work at 11:00 or 11:30 a.m. As he became more familiar with the kitchen processes he generally started work around 12:00 p.m. each day. He understood that he needed to work the hours required to get the job done properly to a high standard. He said it was common to work six days per week and long hours in Malaysia, so he was not surprised that this was required in his job in Tasmania. He did not realise that there were different rules about work hours in Australia.
Mr Loh’s normal work pattern was from Monday to Saturday. His day off work was generally Sunday. However, sometimes his rostered day off changed. In addition, in some weeks, particularly during the period 2010 to 2012, when the Hotel was busy, he was rostered to work seven days from Monday to Sunday. Sometimes when he was rostered to work seven days per week, he was only rostered five days in one of the following weeks. In 2013, the restaurant was closed on Sunday. He only worked a few occasions on Sunday, or a seven day week, during 2013 and 2014.
The days he was required to work each week were set out in a weekly roster. If he was required to work, he was marked ‘on’. If it was a rostered day off, he was marked ‘off.’ His start and finish times were not recorded on the roster.
Regardless of the number of hours he worked, he was paid a flat weekly salary.
Mr Loh gave evidence that Ms Low was required to work the same hours as him, but said that if it was his day off, ‘she would take my place’. Normally her hours were the same as his, but not always. After lunch, he tried to give her a break in the afternoon and she took them when there was a chance. He said that when she left her employment, no-one else was employed to work the afternoon hours.
In around April 2010, another chef, Mr Adrian Winoto (‘Mr Winoto’), started working with Mr Loh for about seven months and left in December 2010. Mr Winoto asked him why he worked six days and spoke to him about leave. He told him that when he worked on a public holiday, he was entitled to have a day off. Mr Loh deposed that he never received a day off for working on a public holiday. Mr Loh did not want to raise this with Mr Chang, as he was concerned about keeping his job. He thought if he raised the issues, it would be bad for his visa and his application for permanent residency.[27]
[27] Ibid [159]-[160].
Mr Loh agreed that Mr Chang was money conscious, worried about spending money and wanted to save money where he could.
Mr Loh gave evidence that Mr Bill Hageman (‘Mr Hageman’) worked five days per week on week days. He knew this because he worked with him and he lived at the Hotel a few rooms away from him. Mr Loh was not challenged about this during cross-examination.
Mr Loh deposed that Mr Chang treated him like an employee. He said on a few occasions Mr Chang told him that he was like ‘family’. Mr Loh said that he felt that Mr Chang only said that when he needed something or wanted him to work more, although he never told him to work harder. Mr Loh said he was always working, always there to back Mr Chang up and was the one always cooking. Mr Loh thought that Mr Chang only said that he was like family because they are Chinese.
In April 2014, he wanted some leave, but this was refused. He was really upset. He resigned on 20 April 2014. Two days later, he received a letter from Mr Chang dated 20 April 2014, which upset him. Mr Chang wrote that Mr Loh had to pay some money back because he did not give notice. After he received the letter, he went to the Fair Work Ombudsman for advice. He made a written complaint on about 5 May 2014.
Although Mr Loh was angry when giving evidence about the letter Mr Chang wrote to him, I consider he was an honest witness and I accept his evidence.
Evidence of Ms Kah Yoon Low
Ms Low swore affidavits on 26 October 2016 and 1 February 2017.
She is a Malaysian national, and of Chinese descent. She has lived in Australia since 2008. She was employed by Yenida between 7 September 2009 and 17 January 2010. She was employed on a casual basis as a kitchen hand.
From the time of her arrival in Scamander in mid-July 2008, Ms Low spent time with Mr Loh while he was working in the kitchen and helped him. She did this for about one year without pay.
Ms Low was engaged by Yenida in September 2009, after she had been in Malaysia for three months. Mr Loh had gone back with her, but he returned after one month. She gave evidence that one of the reasons she returned to Australia was because Mr Loh mentioned to her that she may be hired to work at the Hotel, as he needed help in the kitchen. ‘Pete mentioned to me that Yen might offer me to work in the kitchen because I lived on premises at the hotel and had only been helping in the kitchen.’
In September 2009, Mr Chang offered her a job as a kitchen hand. Mr Chang said words to the effect ‘I can’t really afford to pay you… I can only pay you $450 a week and pay tax.’ Mrs Chang told her ‘food and lodging is included.’ She asked about her work hours. Mrs Chang responded ‘using words along the lines of “same as Peter”’. Mrs Chang told her that she would have one day off a week and she would try and give her the same day off as Mr Loh, but this could not always happen. She said that she was often rostered to work on Mr Loh’s day off. Sometimes they had the same day off, but not regularly. She was instructed to work the same hours as Mr Loh – which included both lunch and dinner. She was never asked to record her hours.
From 7 September 2009 to 17 January 2010, she normally worked six days per week with one rostered day off. There were no start or finish times marked on her roster. Normally she worked through the afternoon with Mr Loh with only a meal break. On some occasions she did not take a break, despite Mr Loh’s encouragement. There was too much work.
Regardless of the amount of hours she worked, Ms Low was paid a flat weekly rate.
She said that on some occasions she had help in the kitchen from other employees, including from Mrs Chang in the evenings. Jackie Midson also worked as a kitchen hand and normally worked from around 6:00 p.m. until close.
From September 2009 to January 2010, she found that the work load in the kitchen was too much. She said she was working long hours of 7-10 hours a day, six days per week. In early January, she informed the Changs that she wanted to leave.
Ms Low believed that Mr Chang employed her, not because it would be more likely Mr Loh would stay, but because they were short-handed and it was convenient. She agreed that Mr Chang was money conscious.
In respect of Mr Hageman’s employment, in her evidence-in chief, Ms Low said he worked five days per week. During cross-examination, she said that he whinged if he worked six days. Then she said she was not sure whether he worked six days and or worked five days.
Ms Low gave evidence that Mr Chang repeatedly said to Peter and herself, ‘you are family’. Based on this she felt that Mr Chang thought he ‘owned us’. Mrs Chang also told her ‘you’re like family’. She thought this was because in Malaysia and China, there is a culture of helping out your family and working hard for them. She said that she did not feel it was fair because she was working six days per week and Mrs Chang asked her to work more and then did not pay her. She said that she felt that there was an expectation that ‘you should not question working so much and helping them out.’
Although Ms Low was confused about Mr Hageman’s days of work, I consider that she was an honest witness and I accept her evidence.
Evidence of Mr Chris Reid
Mr Chris Reid (‘Mr Reid’) affirmed an affidavit on 5 March 2017.
He was born in Australia. He was employed as a chef at the Chancellor Inn Scamander Beach (‘the Chancellor’) between January and November 2005.
He signed a written contract of employment with the Chancellor on 19 January 2005. He deposed that ‘the contract was based on me working five days a week’. The contract did not specify the hours or days he was required to work.
During his employment with the Chancellor, he would usually work between 40 and 44 hours over five days each week, with two days off. If he worked more than 44 hours, he was entitled to be paid as time in lieu. It was not common for him to work 6 days. He said that during his two days off his ‘soon-to-be apprentice,’ Matthew Midson, did the cooking.
He was not paid overtime by the Chancellor. His contract with the Chancellor did not specify any award rates. He was a qualified chef and thought he had a Certificate 3 in Commercial Cookery. He agreed that Cook, Tradesperson Grade 5 in the Pre-Modern Award, described his duties.
The Chancellor was bought by Yenida in November 2005. Mr Reid was subsequently employed by Yenida. He had a verbal agreement with Mr and Mrs Chang. His employment conditions did not change. He worked about 40 hours per week over five days. He had two days off per week.
He was not ‘paid’ any days in lieu by the new owners, but to the best of his recollection, this was because he did not work more than 40 hours during that time.
The new owners did not have much to do with the kitchen management. They did not supervise him or instruct him about drafting rosters.
Mr Reid did not agree with Mr Chang’s evidence that he worked six days per week. He may have worked six days per week at times, but this was not common or regular. He pointed out that it was important to him to only work five days per week, so he could maintain a work life balance.
I accept Mr Reid’s evidence. He was a confident witness, whose evidence did not waiver during cross-examination.
Evidence of Mr Adrian Winoto
Mr Winoto affirmed an affidavit on 6 February 2017. He annexed to his affidavit a statutory declaration made by him on 10 December 2010.[28]
[28] Affidavit of Adrian Winoto affirmed 6 February 2017, Annexure AW2.
Mr Winoto is Indonesian. He came to Australia on a 457 Visa on 7 September 2008. He worked in Australia between 2008 and 2014. He was offered a job as a chef by Mr Chang in February 2010. Mr Chang offered to sponsor him for an 857 Visa.
Mr Winoto started work at the Hotel in May 2010 after his visa was approved. He was employed to work as a commis chef. His employment agreement dated 4 February 2010 provided that he receive $40,700 per annum gross. His work hours and number of hours per week were not specified.[29] During his job interview with Mr Chang, he was told he would work six days per week during the high season, and in the low season he would only need to work a few hours per day. However, he still worked seven- eight hours per day. He never received days in lieu.
[29] Ibid Annexure AW1.
In around August 2010, Mr Winoto contacted Fair Work. He thought as a permanent resident that he had the right to the same working conditions as Australians. He wanted to find out what rights he had for days off in lieu and for working on public holidays. He received letters from Fair Work in response to his questions.[30] After he had contacted Fair Work, he asked Mr Chang about having a day off. He could not recall anything changing.
[30] Ibid Annexure AW3.
In December 2010, he showed Mr Chang letters that he received from Fair Work about getting a day off in lieu.[31] During cross-examination, he said that he showed him the letters once. He could not remember the exact date. On 6 December 2010, he asked Mr Chang how many days in lieu he was owed, as he had always worked on public holidays. He went to a meeting with the Changs. Mr Chang hit the table and yelled and swore at him. He was told that his employment was terminated because he could not do his job properly. He was also told that he had ‘talked bad about them’ on his Facebook.
[31] Ibid.
On the day he was fired, Mr Chang said words like:
If you want to talk about hours of work, okay, you tell me where in this fucking industry do we have people working 38 hours a week?
We have so many fucking chefs we have employed. Remember, Adrian. So many fucking chefs employed in this work, and we never had a fucking – like this brought up…
You know what we fucking offer and I will fucking pay you to get the fuck out of here now...[32]
[32] Ibid [30]; Transcript of Proceedings, 8 March 2017, 195-196.
Mr Winoto said that he believed that Mr Chang wanted to get rid of him because, unlike the other people who worked in the kitchen, he knew about workplace laws and had raised his work place rights with him.
During cross-examination, Mr Winoto agreed that Mr Chang told him that he was not entitled to a day in lieu because he was a full-time employee and not casual. Mr Chang used Mr Loh as an example of a full-time employee not receiving days in lieu.
During cross examination, he conceded that Mr Chang told him that he was not happy about the food he was eating, but said this was after he asked him about days in lieu and annual leave. He denied that Mr Chang raised issues about his performance during his employment and said that he only did so when he fired him. He denied that he received a warning letter in October 2010 about his behaviour.
Although Mr Winoto presented as resentful towards Mr Chang, I consider that his evidence was credible.
Evidence of Mr Chang Yen Chang
Evidence about Mr Loh
Yenida engaged employees on a casual basis, with the exception of the head chef, who was employed on a full-time basis. When Yenida purchased the Hotel, the full-time head chef was Mr Chris Reid. After he left the employment of Yenida, Mr Chang sought and employed a succession of chefs.
Mr Chang ran an Asian restaurant in Sydney prior to running the Hotel and wanted to add Asian dishes to the menu. He wanted a chef with experience in Asian cuisine. He advertised for a chef with skills in Asian cooking.
Mr Chang said that a conscious decision was made to change the menu to Asian food because of their experience and to make ‘a point of difference in the area.’ He said that he would have liked to have employed someone locally. Mr Wat, who worked in their restaurant in Sydney, came down and implemented Asian meals, but he was always temporary. Long-term, finding someone from overseas was the best solution available.
Two Singaporean chefs, Mr Too Heng Kiam (‘Mr Too’) and Mr Tan Peow Liang (‘Mr Tan’),[33] both on 457 Visas, were then employed. Mr Tan left after only six weeks and Mr Too left after six months, due to the isolated environment at Scamander.
[33] Affidavit of Kristen Desmond affirmed 27 October 2016, Annexure KD-1, 1046, 1063.
Mr Chang said that Mr Jacky Xiao (‘Mr Xiao’) was then employed. He was from China and held a 457 Visa. He was a good chef, but his lack of English led to him having problems performing the requirements of the role. His employment was terminated for this reason.
Another round of local advertising was attempted. He deposed that this was:
…not only because it was a condition of the visa, but because it would always have been my preference to employ Australian residents, as this would have saved the expense and administrative inconvenience of dealing with the Department of Immigration.[34]
[34] Affidavit of Chang Yen Chang affirmed 18 December 2015 [18].
This advertising was unsuccessful.
He further deposed:
There was never any ulterior motive to save money or exploit foreign workers. The Australian chefs and overseas chefs were given the exact same salary and conditions. All I was seeking was someone who had the right skills that was willing to work in an isolated rural location.[35]
[35] Ibid.
After failing to find someone locally, Mr Chang decided to advertise in Malaysia for a chef. He deposed: ‘I was aware that Malaysia has a rich food culture, and I have known many people in Australia that have successfully emigrated from there. I chose this location on those grounds.’
He told FWI Desmond:
…Singapore and Malaysia is, for all intents and purposes, same culture. I tried Singapore initially, Singapore… is a lot wealthier than Malaysia and… people have much higher expectations or standards. So I tried the Singapore guys and they thought… what’s this place?… it’s in the middle of nowhere… so I thought… forget Singapore. Let’s try Malaysia.[36]
[36] Affidavit of Kristen Desmond affirmed 27 October 2016, Annexure KD-1, 238-239.
He had advertised in the Sydney Morning Herald.[37] He said that the process of obtaining an employee on a 457 visa required a demonstration of a commitment to hiring local labour.
[37] Affidavit of Chang Yen Chang affirmed 20 December 2016 [20].
In response to a subsequent advertisement in Malaysia in ‘The Star’ newspaper, Mr Loh was appointed to the position of full-time chef. The advertisement read:
Chefs-Australia
Wanted 2 qualified/skilled Chefs at Resort Hotel in Tasmania for 2 year contract with option of extending. Rural seaside location. Must be skilled in Asian cuisine and have functional English. Employer will assist with working visa application. Potential available for permanent residency in Australia if desired...[38]
[38] Affidavit of Kien Hoong Loh affirmed 24 October 2016, Annexure KHL-2.
Mr Chang gave evidence that he wanted a chef with experience in Asian cuisine and skills in Asian cooking. However, in his email dated 20 May 2007 to Mr Loh, Mr Chang wrote:
Our menu is due for an overhaul. If you can, it would be good to bring some recipes for Italian dishes, pasta or even French. Anyway we’ll sit down together and come up with some new dishes…PS for your information, the other Malaysian chef, Mr Wilson Tan… will be concentrating on Asian cuisine, and will be the Assistant Head Chef.[39]
[39] Ibid Annexure KHL-8.
Mr Wilson Tan’s employment did not eventuate.
Mr Chang told FWI Desmond that Mr Loh had worked in a steakhouse in Kuala Lumpur for five years. He told her that Mr Loh looked after the western side of the dishes and his wife looked after the Asian side.
FWI Desmond asked him why Mr Loh was employed for his Asian expertise when he was cooking the Australian food. He answered, ‘…we found he wasn’t that good with Asian food at all, so we said… let Vanida keep doing that, you help us out with Australian side.’
This evidence is inconsistent with his evidence that he wanted a chef with skills in Asian cooking.
Mr Chang deposed that Mr Loh’s hours of work and salary were based on the conditions of employment of Mr Chris Reid. Mr Chang read Mr Reid’s contract of employment with the previous owner of the Hotel, the Chancellor,[40] and it specified that annual leave ‘will be paid per the award requirements’. He knew that the Award applied to Mr Reid, a full-time employee.
[40] Affidavit of Chang Yen Chang affirmed 18 December 2015, Annexure YC6.
Mr Chang deposed that when Yenida took over, Mr Reid had not been recording his hours. He was free to come and go as he pleased and to run the kitchen as he saw fit. After he resigned, Mr Chang never required full-time salaried employees in the head chef role to record their hours.
Mr Chang deposed that the process of being approved as a 457 Visa sponsor led him to believe that an annualised salary was a pre-requisite for a visa application. Mr Loh’s salary was set in accordance with the Department Of Immigration (‘the Department’) document entitled, ‘Minimum Salary Levels and Occupations for the Business Long Stay Visa’. He deposed that he was unaware that this minimum salary level (‘MSL’) was a distinct and separate entitlement from that under the industrial relations laws.
Mr Chang deposed in his second affidavit that he had to provide Mr Loh’s contract of employment to the Department on 7 August 2007. He understood that the Department would be checking that the contract complied with Australian law. The Department required him to make certain amendments to ensure compliance. ‘This is one of the reasons that I believed his salary fully satisfied my legal obligations to Peter under Australian law.’
Mr Chang deposed that he thought that as long as the chef did an average of 38 hours per week, the salary he was paying would be enough to cover the legal obligations. His understanding came, in part, because the employment arrangements from the previous owners were continued.
Mr Chang said that he did not realise that he needed to keep timesheets for Mr Loh. He did not realise that there were employment requirements separate from the immigration employment requirements. He believed it was not necessary, as Mr Loh was a full-time salaried employee. Employees on a salary received the same pay each week, so he did not make them fill out a timesheet. Employees who were paid by the hour entered their times into a timesheet.
In Mr Chang’s third affidavit, affirmed on 1 March 2017, he referred to the employment conditions of Mr Hageman and senior chefs other than Mr Loh. He said that all the senior chefs following Chris Reid were employed to work six days per week. This included Mr Wat, Jackie Xiao, Tan Peow Liang and Too Heng Kiam.[41]
[41] Affidavit of Chang Yen Chang affirmed 1 March 2017 [15].
In respect of senior chefs following the employment of Mr Chris Reid, Mr Chang located kitchen rosters relating to the period prior to Mr Loh’s employment in 2007. He found these documents when he was searching records to comply with a notice to produce, served on Yenida on 7 February 2017. Those particular rosters indicate that Mr Wat, Mr Xiao, and Mr Too were rostered to work six days per week.[42]
[42] Ibid Annexure YC12.
Mr Chang deposed that Mr Loh was not adversely treated when compared with the variety of chefs that performed that role. ‘Those chefs are comprised of a variety of national and racial extraction, including Australian, and were recruited both locally and from overseas...’
Mr Reid was the only Australian chef Mr Chang gave evidence about. The applicant called Mr Reid to give evidence.
Evidence about Ms Low
Mr Chang deposed that Ms Low moved to the Hotel in mid-2009, in contrast to Ms Low’s evidence that she arrived there in mid-2008. He observed on many occasions that she would often assist Mr Loh in the kitchen.
In September 2009, Mr Chang suggested to her that Yenida employ her officially. She accepted the offer. He told her that she would be paid a maximum of $450 per week. Due to the way in which she was free to come and go unsupervised, he believed this to be the most convenient way to recognise her assistance.
Mr Chang said that he did not make Ms Low enter her hours on a timesheet because the amount she was paid was not based on her hours. ‘It was more an arrangement to compensate her for a small amount of work – less than 20 hours a week and so she didn’t get bored and want to leave, which I was worried would lead to Peter leaving.’
He believed that, because she was working weekly and was being paid a weekly amount, she was not a casual employee in the same way that the other employees were. He viewed her more as a part-time employee.
Mr Chang deposed that at no time was Ms Low’s role required to be done by anyone, either before or after her brief employment.
Mr Chang deposed that Ms Low ‘was not adversely treated in comparison to other employees, because no other employee shared the unique characteristics of the arrangement arising from her living at the resort with her husband who was Head Chef.’[43]
[43] Affidavit of Chang Yen Chang affirmed 18 December 2015 [58].
In his third affidavit, Mr Chang deposed that the employment arrangement with Mr Hageman, as a live-in member of staff, was one of the reasons that Yenida employed Ms Low on a similar basis.
Cultural Background
Mr Chang gave evidence about his cultural background, which I discuss later in these Reasons.
Evidence about Mr Winoto
Mr Chang recalled having a conversation with Mr Winoto on the day he dismissed him. He agreed that he said: ‘you know fucking what we offer and I will fucking pay you to get the fuck out of here now…today, get the fuck out of here.’
Mr Chang denied that the substance of his first comment meant that it was not the norm in the industry for people to only work 38 hours a week. When asked to clarify what he meant, he responded, ‘I really can’t answer that your Honour I don’t know how that came out, but that’s not… what I was trying to say’.
Mr Chang denied that Mr Winoto showed him a letter from Fair Work informing him that he had been underpaid and was entitled to a day in lieu. At first he did not recall Mr Winoto raising the issue of days in lieu with him. Later in his evidence, he agreed that he told him that days off in lieu related to casual employees. Mr Chang agreed he said this, but he thought it was right at the time. He was asked whether he knew that casual workers do not get days in lieu. He answered ‘no, I don’t think so. I might have been confused at the time, I think… I might have said it thinking that was the case.’ He then agreed that he knew that casuals were not entitled to days in lieu. When it was suggested that he was trying to deceive Mr Winoto, he answered ‘no, I think – I know I said that, but I think I might have been confused at the time said something… it was my belief at the time that that was the case, yes.’[44]
[44] Transcript of Proceedings, 9 March 2017, 263.
I prefer Mr Winoto’s evidence that he showed Mr Chang the letter from Fair Work. Ms Low’s evidence corroborates Mr Winoto’s version. Ms Low had seen how angry Mr Chang had become about Mr Winoto. Her evidence was that at the end of 2010, Mr Chang told her and Mr Loh that Mr Winoto had been to Fair Work and had given him a letter from Fair Work. I accept Mr Winoto’s evidence that he showed Mr Chang the letters.
Mr Chang denied that one of the reasons he dismissed Mr Winoto was because ‘he wanted to work to the fucking letter of the law’, although his dismissal occurred several days after he raised the issues of underpayment and days in lieu.
Mr Chang’s Credibility
My overall assessment of Mr Chang was he was not a credible. His evidence could not be believed or accepted. He was defensive. At times, he changed his evidence or said he was confused. An example of this was when asked about telling Mr Winoto that days in lieu applied only to casual workers.
He gave several explanations during his evidence about why he inaccurately recorded the hours worked by chefs in documents provided to the Department. He changed his evidence several times.
His evidence about providing FWI Desmond and the Department with the’ additional items’ page of Mr Loh’s contract was not credible.[45] I do not accept his evidence that he provided the page.
[45] Transcript of Proceedings, 8 March 2017, 157-158, 179-180.
Mr Chang’s evidence about the production of Mr Loh’s and Ms Low’s rosters was not credible.[46] He agreed during cross-examination that he knew the investigation about differential treatment was that Mr Loh worked six days per week.[47] I do not accept that he produced rosters for Mr Loh during his leave periods and failed to produce records showing Ms Low’s days ‘on’ because of a misunderstanding.
[46] Ibid 220-229.
[47] Transcript of Proceedings, 9 March 2017, 238.
During cross-examination, Mr Chang’s explanation about asking Mr Winoto, ‘where in this fucking industry do you have people working 38 hours’ was that ‘it was a heat of the moment thing’, and that he, ‘just blurted it out.’[48] I consider that his explanation was not credible and was inconsistent with his claim that Mr Loh was not working more than 38 hours per week.
[48] Transcript of Proceedings, 8 March 2017, 196.
He gave conflicting evidence about Ms Low’s employment. In his first affidavit, he explained that she was employed on an ad hoc basis to help Mr Loh. He subsequently asserted that she was employed on similar terms to Mr Hageman and worked a fixed number of hours per week. He gave conflicting evidence about the hours she worked.
I discuss Mr Chang’s evidence further on in these reasons.
Evidence of Ms Megan Jacobi
Ms Jacobi affirmed affidavits on 16 December 2015 and 13 January 2017.
Ms Jacobi was employed by Yenida on a casual basis in the bar, restaurant and reception between August 2010 and May 2015. She worked on average 30 – 35 hours per week. She has been involved in the hospitality industry for many years, working in bar, restaurant and reception roles.
Her evidence was supportive of Mr Chang and that he treated her well at work. She did not witness anything that led her to believe that employees from non-Australian backgrounds were being treated differently to the employees that were local to Tasmania.
By reason of the matters agreed in paragraphs 54 to 57 above, the First Respondent admits it contravened section 45 of the FW Act as a result of contravening clause 33.3(a)(i) of the Hospitality Award.
By reason of the contravention admitted at paragraph 58, the First Respondent underpaid Mr Loh $321.71.
Weekend Overtime Rates of Pay
Pursuant to clause 33.3(a)(ii), during the Assessment Period, Mr Loh was entitled to be paid the following rates of pay for overtime worked between midnight Friday and midnight Sunday (Weekend Overtime Rates):
Pay Period Weekend Overtime Rates 1 January 2010 to 4 July 2010 $31.78 5 July 2010 to 3 July 2011 $33.14 4 July 2011 to 1 July 2012 $34.28 2 July 2012 to 14 December 2012 $35.28 15 December 2012 to 30 June 2013 $40.54 1 July 2013 to 20 April 2014 $41.60
Mr Loh was entitled to be paid the Weekend Overtime Rates of Pay for all hours worked between midnight Friday and midnight Sunday on which one of the following applied:
(a)hours worked in excess of 7 hours and 36 minutes per day;
(b)hours worked in excess of 38 hours per week; or
(c)all hours worked on a day which was Mr Loh’s sixth or seventh working day in the week,
(Weekend Overtime).
During the Assessment Period, Mr Loh worked the following number of Weekend Overtime hours and was entitled to be paid as follows:
Pay Period Weekend Overtime Hours Worked Entitlement 1 January 2010 to 4 July 2010 164.90 $5,240.52 5 July 2010 to 3 July 2011 392.20 $12,997.52 4 July 2011 to 1 July 2012 337.40 $11,566.07 2 July 2012 to 14 December 2012 137 $4,833.36 15 December 2012 to 30 June 2013 203.5 $8,249.89 1 July 2013 to 20 April 2014 284 $11,814.40 Total 1,518.90 $54,701.76
During the Assessment Period, the First Respondent paid Mr Loh $38,117.67 for Weekend Overtime.
By reason of the matters agreed at paragraphs 60 to 63 above, the First Respondent admits it contravened clause 45 of the FW Act as a result of contravening clause 33(a)(ii) of the Hospitality Award.
By reason of the contravention admitted at paragraph 64, the First Respondent underpaid Mr Loh $16,584.09.
Evening Loading
During the Assessment Period, the First Respondent was required to pay Mr Loh an evening loading in addition to his minimum hourly wage for all ordinary hours worked between 7:00pm and midnight on a weekday (Evening Loading Hours).
During the Assessment Period, pursuant to clause 32.3(a) of the Hospitality Award and the transitional provisions contained in Schedule A to the Hospitality Award, the First Respondent was required to pay Mr Loh the following evening loading per hour:
Pay Period Evening Loading Amount 1 January 2010 to 4 July 2010 $1.63 5 July 2010 to 3 July 2011 $1.66 4 July 2011 to 1 July 2012 $1.70 2 July 2012 to 30 June 2013 $1.77 1 July 2013 to 20 April 2014 $1.85
During the Assessment Period Mr Loh worked the following number of Evening Loading Hours and was entitled to be paid as follows:
Pay Period Evening Loading Hours Worked Entitlement 1 January 2010 to 4 July 2010 235.40 $383.78 5 July 2010 to 3 July 2011 506.20 $840.44 4 July 2011 to 1 July 2012 430.40 $731.68 2 July 2012 to 30 June 2013 467.60 $825.53 1 July 2013 to 20 April 2014 380.50 $704.34 Total 2020.10 $3,485.77
During the Assessment Period, the First Respondent paid Mr Loh $1,728.45 for Evening Loading Hours.
By reason of the matters agreed at paragraphs 66 to 69 above, the First Respondent admits it contravened section 45 of the FW Act as a result of contravening the following clauses of the Hospitality Award:
(a)from 1 January 2010 to 4 July 2010, clause A.5.2; and
(b)from 5 July 2010 to 20 April 2014, clauses A.6.4 and A.7.3
By reason of the contravention admitted at paragraph 70, the First Respondent underpaid Mr Loh $1,757.40
Broken Shift Allowance
Pursuant to clause 21.3(a) of the Hospitality Award, during the Assessment Period the First Respondent was required to pay Mr Loh an allowance in addition to his minimum hourly wage where he worked a broken work day and the time between periods of work was in excess of two hours (Broken Shift Allowance).
During the Assessment Period, the First Respondent was required to pay Mr Loh the following Broken Shift Allowance per day:
Pay Period Broken Shift Allowance Amount 5 July 2010 to 3 July 2011 $2.19 4 July 2011 to 1 July 2012 $2.26 2 July 2012 to 14 December 2012 $2.33 15 December 2012 to 30 June 2013 $2.33 1 July 2013 to 20 April 2014 $2.39
During the Low Trade Periods, Mr Loh worked a broken shift on the following number of days and was entitled to be paid as follows:
Pay Period Number of days of broken work Entitlement 1 January 2010 to 30 June 2010 0 $0.00 5 July 2010 to 3 July 2011 72 $157.68 4 July 2011 to 1 July 2012 64 $144.64 2 July 2012 to 14 December 2012 115 $267.95 15 December 2012 to 30 June 2013 27 $62.91 1 July 2013 to 20 April 2014 163 $389.57 Total 441 $1,022.75
During the Assessment Period, the First Respondent paid Mr Loh $764.47 in respect of his Broken Shift Allowance.
By reason of the matters agreed at paragraphs 72 to 75 above, the First Respondent admits it contravened section 45 of the FW Act as a result of contravening clause 21.3(a) of the Hospitality Award.
By reason of the contravention admitted at paragraph 76, the First Respondent underpaid Mr Loh $259.28
Total Underpayment to Mr Loh
By reasons of the admitted contraventions at paragraphs 52, 58, 64, 70, and 76 and the non-payment of Mr Loh in his final week of employment, the First Respondent underpaid Mr Loh a total of $21,124.84 during the Assessment Period.
Amounts withheld on termination of employment
Mr Loh was required to give the First Respondent four weeks’ notice of his resignation.
Mr Loh resigned without notice on 20 April 2014.
Pursuant to clause 16.2(a) of the Hospitality Award, the First Respondent was entitled to withhold monies due to an employee on termination equal to the amount that the employee would have been paid if they had worked for their required notice period
Mr Loh was entitled to be paid $1,341.93 for his final week of work during the Assessment Period.
The First Respondent did not pay Mr Loh any amount in respect of his final week of work in the Assessment Period and the First Respondent was entitled to withhold $1,341.93 from any monies due to Mr Loh on termination of employment
As a results of the matters agreed at paragraphs 78 to 83 above, the First Respondent underpaid Mr Loh a total of $19,782.78.
AGREED UNDERPAYMENT CONTRAVENTIONS: MS LOW
Hours worked
During her employment period, Ms Low worked:
(a)subject to subparagraph (b) below, six days per week, with a variable rostered day off;
(b)in the week ending 8 November 2009, five days with Monday and Sunday as rostered days off.
During her employment period, Ms Low worked between 35 and 51 hours per week as follows:
(a)commenced at 12:00pm;
(b)took a two hour unpaid meal break; and
(c)finished each shift:
(i) at 9:00 pm, from 7 September to 30 November 2009;
(ii) at 10:00 pm, from 1 December to 31 December 2009; and
(iii) at 10:30 pm, from 1 January 2010 to 17 January 2010.
The days and hours worked by Ms Low are set out in full in Schedule BB.
Payment Received
During her employment period, Ms Low was paid a weekly age of:
(a)$594.66 (gross) for the week of 7 to 13 September 2009;
(b)$451 (gross) for the week of 14 September to 20 September 2009; and
(c)$446 (gross) for the remainder of her Employment Period.
Minimum Hourly Rate
Pursuant to the Pay Scale and clause 20 of the Hospitality Award, during her employment period Ms Low was entitled to be paid an hourly rate of pay of $14.75 for all hours worked on a weekday (Weekday Hours).
Ms Low worked 584.5 Weekday Hours and was entitled to be paid $8,621.38
The First Respondent paid Ms Loh $6,061.81 for Weekday Hours.
By reason of the matters agreed at paragraphs 89 to 91 above, the First Respondent admits it contravened:
(a)item 5 of Schedule 16 of the Transitional Act by failing to pay Ms Low at least the basic periodic rate of pay contained in the Pay Scale from 7 September 2009 to 31 December 2009; and
(b)section 45 of the FW Act as a result of contravening clause 20 of the Hospitality Award from 1 January 2010 to 17 January 2010.
By reason of the contraventions admitted at paragraph 92, the First Respondent underpaid Ms Low $2,559.57.
Casual Loading
Pursuant to the Pay Scale and clause 13.1 of the Hospitality Award, the First Respondent was required to pay Ms Low a casual loading of $3.69 per hour for all Weekday Hours.
Ms Low worked 584.50 Weekday Hours and was entitled to a total casual loading of $2,156.85.
The First Respondent did not pay Ms Low any amount in respect of casual loading.
By reason of the matters agreed at paragraphs 94 to 96 above, the First Respondent admits it contravened:
(a)item 5 of Schedule 16 of the Transitional Act by failing to pay Ms Low at least the casual loading contained in the Pay Scale from 7 September 2009 to 31 December 2009; and
(b)section 45 of the FW Act as a result of contravening clause 13.1 of the Hospitality Award from 1 January 2010 to 17 January 2010.
By reason of the contraventions admitted at paragraph 97, the First Respondent underpaid Ms Low $2,156.85.
Saturday Rates of Pay
Pursuant to clause 15.2.2(b) of the Pre-Modern Award and clause 32.1 of the Hospitality Award, during her employment period, the First Respondent was required to pay Ms Low an hourly rate of $22.13 for all hours worked on a Saturday (Saturday Hours).
Ms Low worked 134.50 Saturday Hours and was entitled to be paid $2,976.49
The First Respondent paid Ms Low $1,440.56 for Saturday Hours.
By reason of the matters agreed at paragraphs 99 to 101 above, the First Respondent admits it contravened:
(a)item 2(1) of Schedule 16 of the Transitional Act as a result of contravening clause 15.2.2(b) of the Pre-Modern Award from 7 September 2009 to 31 December 2009; and
(b)section 45 of the FW Act as a result of contravening clause 32.1 of the Hospitality Award from 1 January 2010 to 17 January 2010.
By reason of the contraventions admitted at paragraph 102, the First Respondent underpaid Ms Low $1,535.93.
Sunday Rates of Pay
Pursuant to clause 15.2.2(c) of the Pre-Modern Award and clause 32.1 of the Hospitality Award, during her employment period, the First Respondent was required to pay Ms Low an hourly rate of $25.81 for all hours worked on a Sunday (Sunday Hours).
Ms Low worked 103.50 Sunday Hours and was entitled to be paid $2,671.34
The First Respondent paid Ms Low $979.03 for Sunday Hours.
By reason of the matters agreed at paragraphs 104 to 106 above, the First Respondent admits it contravened:
(a)item 2(1) of Schedule 16 of the Transitional Act as a result of contravening clauses 15.2.2 and 15.2.2(c) of the Pre-Modern Award from 7 September 2009 to 31 December 2009; and
(b)section 45 of the FW Act as a result of contravening clause 32.1 of the Hospitality Award from 1 January 2010 to 17 January 2010.
By reason of the contraventions admitted at paragraph 107, the First Respondent underpaid Ms Low $1,692.31.
Public Holiday Rates of Pay
Pursuant to clause 15.2.2(d) of the Pre-Modern Award and clause 32.1 of the Hospitality Award, during her employment period the First Respondent was required to pay Ms Low an hourly rate of $40.56 for all hours worked on a public holiday (Public Holiday Hours).
Ms Low worked 16.50 Public Holiday Hours and was entitled to be paid $669.24.
The First Respondent paid Ms Low $147.26 for Public Holiday Hours.
By reason of the matters agreed at paragraphs 109 to 111 above, the First Respondent admits it contravened:
(a)item 2(1) of Schedule 16 of the Transitional Act by contravening clause 15.2.2(d) of the Pre-Modern Award from 7 September 2009 to 31 December 2009; and
(b)section 45 of the FW Act as a result of contravening clause 32.1 of the Hospitality Award from 1 January 2010 to 17 January 2010.
By reason of the contraventions admitted at paragraph 112, the First Respondent underpaid Ms Low $521.98.
Evening Loading
Pursuant to clause 15.2.2(a) of the Pre-Modern Award and clause A.5.2 of the Hospitality Award, during her employment period the First Respondent was required to pay Ms Low an evening loading of $1.63 per hour for all Evening Loading Hours.
Ms Low worked 189.5 Evening Loading Hours and was entitled to be paid $308.93.
The First Respondent did not pay Ms Low any additional loading for Evening Loading Hours.
By reason of the matters agreed at paragraphs 114 to 116 above, the First Respondent admits it contravened:
(a)item 2(1) of Schedule 16 of the Transitional Act by contravening clause 15.2.2(a) of the Pre-Modern Award from 7 September 2009 to 31 December 2009; and
(b)section 45 of the FW Act as a result of contravening clause 32.1 of the Hospitality Award from 1 January 2010 to 17 January 2010.
By reason of the contraventions admitted at paragraph 117, the First Respondent underpaid Ms Low $308.93.
Total Underpayment to Ms Low
By reason of the agreed contraventions at paragraphs 92, 97, 102, 107, 112, and 117 above, the First Respondent underpaid Ms Low a total amount of $8,775.57 during her employment period.
UNDERPAYMENT OF MS MCKIMMIE
Pursuant to clause 20 of the Hospitality Award, during the Audit Period, the First Respondent was required to pay Ms McKimmie an hourly rate of $17.05 for all Weekday Hours.
In the week ending 30 June 2013, Ms McKimmie worked 22.5 hours and was entitled to be paid $393.75 for Weekday Hours.
For the week ending 30 June 2013, the First Respondent paid Ms McKimmie $272.80.
By reason of the matters agreed at paragraphs 120 to 122 above, the First Respondent admit it contravened section 45 of the FW Act as a result of contravening clause 20 of the Hospitality Award.
By reason of the contravention admitted at paragraph 123, the First Respondent underpaid Ms McKimmie $120.95.
ACCESSORIAL LIABILITY OF THE SECOND RESPONDENT
Responsibilities for and on behalf of First Respondent
The Second Respondent was, at all relevant times, a person responsible for the overall direction and management of the Business.
The Second Respondent was, at all relevant times, a person responsible for:
(a)making decisions on behalf of the First Respondent about rates of pay that would be paid to employees engaged to perform work for the First Respondent;
(b)making decisions on behalf of the First Respondent about the shifts and hours to be worked by employees of the First Respondent;
(c)making decisions on behalf of the First Respondent about the terms and conditions of employment that would (or would not be) provided to employees engaged to perform work for the First Respondent;
(d)making operational decisions about the running of the Business; and
(e)making and keeping employee records on behalf of the First Respondent.
The Second Respondent was a person responsible for ensuring the First Respondent complied with its legal obligations under the FW Act and the Transitional Act.
Knowledge of employment and employment conditions
The Second Respondent:
(a)was responsible for engaging Mr Loh and Ms Low as employees of the First Respondent; and
(b)was, at all relevant times, a person responsible for employing employees of the First Respondent
At all relevant times, the Second Respondent knew:
(a)the starting and finishing times of Mr Loh;
(b)the duties performed by Mr Loh and Ms Low; and
(c)the amounts paid in respect of wages to Mr Loh and Ms Low.
At all relevant times, the Second Respondent:
(a)knew that Ms Low worked various hours including after 7:00pm and on weekends and public holidays;
(b)knew that Ms low worked, on average, six days a week;
(c)knew that the First Respondent did not keep records or ensure records were kept of the hours Ms Low worked;
(d)knew that the amounts paid to her did not vary by reference to the hours or days she worked; and
(e)failed to ensure that Ms Low was paid in accordance with the hours actually worked.
Knowledge of Industrial Instruments
At all relevant times the Second Respondent knew that:
(a)the Pre-Modern Award applied to the Business and its employees;
(b)the Hospitality Award applied to the Business and its employees;
(c)the Pre-Modern Award and the Hospitality Award set out the minimum rates of pay and conditions for employees, including:
(i) minimum hourly rates;
(ii) penalty rates;
(iii) overtime rates;
(iv) casual loading; and
(v) evening loading.
By reason of the matters agreed in paragraphs 125 to 131 the Second Respondent:
(a)aided, abetted, counselled or procured; or
(b)by way of his acts or omissions, was directly or indirectly knowingly concerned in or party to,
each of the contraventions admitted by the First Respondent at paragraph 4.
Pursuant to section 550(1) of the FW Act, and by reason of the matters admitted at paragraph 132, the Second Respondent is to be treated as having himself contravened each of the provisions alleged to have been contravened by the First Respondent
Dated:
……………………………………………………………….
Phoebe Nicholas
Legal practitioner representing the Applicant
Office of the Fair Work Ombudsman
…………………………………………………………………..
Lawyers for the First and Second Respondent
PCC Lawyers
SCHEDULE A
START AND FINISH KIEN HOONG LOH
| Month | Start | Finish |
| January 2010 | 12:00pm | 10:30pm |
| February 2010 | 12:00pm | 10:00pm |
| March 2010 | 12:00pm | 10:00pm |
| April 2010 | 12:00pm | 9:00pm |
| May 2010 | 12:00pm | 9:00pm |
| June 2010 | 12:00pm | 9:00pm |
| July 2010 | 12:00pm | 9:00pm |
| August 2010 | 12:00pm | 9:00pm |
| September 2010 | 12:00pm | 9:00pm |
| October 2010 | 12:00pm | 9:00pm |
| November 2010 | 12:00pm | 9:00pm |
| December 2010 | 12:00pm | 10:00pm |
| January 2011 | 12:00pm | 10:30pm |
| February 2011 | 12:00pm | 9:30pm |
| March 2011 | 12:00pm | 9:00pm |
| April 2011 | 12:00pm | 9:00pm |
| May 2011 | 12:00pm | 9:00pm |
| June 2011 | 12:00pm | 9:00pm |
| July 2011 | 12:00pm | 9:00pm |
| August 2011 | 12:00pm | 9:00pm |
| September 2011 | 12:00pm | 9:00pm |
| October 2011 | 12:00pm | 9:00pm |
| November 2011 | 12:00pm | 9:00pm |
| December 2011 | 12:00pm | 10:00pm |
| January 2012 | 12:00pm | 10:00pm |
| February 2012 | 12:00pm | 9:30pm |
| March 2012 | 12:00pm | 9:00pm |
| April 2012 | 12:00pm | 9:00pm |
| May 2012 | 12:00pm | 9:00pm |
| June 2012 | 12:00pm | 9:00pm |
| July 2012 | 12:00pm | 9:00pm |
| August 2012 | 12:00pm | 9:00pm |
| September 2012 | 12:00pm | 9:00pm |
| October 2012 | 12:00pm | 9:00pm |
| November 2012 | 12:00pm | 9:00pm |
| December 2012 | 12:00pm | 9:00pm |
| January 2013 | 12:00pm | 10:00pm |
| February 2013 | 12:00pm | 9:30pm |
| March 2013 | 12:00pm | 9:00pm |
| April 2013 | 12:00pm | 9:00pm |
| May 2013 | 12:00pm | 8:30pm |
| June 2013 | 12:00pm | 8:00pm |
| July 2013 | 12:00pm | 9:00pm |
| August 2013 | 12:00pm | 8:30pm |
| September 2013 | 12:00pm | 8:30pm |
| October 2013 | 12:00pm | 9:00pm |
| November 2013 | 12:00pm | 9:00pm |
| December 2013 | 12:00pm | 9:00pm |
| January 2014 | 12:00pm | 9:30pm |
| February 2014 | 12:00pm | 9:30pm |
| March 2014 | 12:00pm | 9:00pm |
| April 2014 | 12:00pm | 9:00pm |
SCHEDULE AA: DATES IN LOW TRADE PERIOD WHERE EVENT OR TOUR BUS SCHEDULED
| Date | Event |
| 2011 | |
| 18 May 2011 | Rotary Club |
| 19 May 2011 | Liberal Party |
| 24 June 2011 | GP North dinner |
| 19 July 2011 | St Helen’s Chamber of Commerce |
| 20 July 2011 | Rotary Club dinner |
| 27 July 2011 | GP North dinner |
| 28 July 2011 | Liberal Party Dinner |
| 25 August 2011 | Channel 7 – 40 pax |
| 26 August 2011 | Channel 7 – 40 pax |
| 2012 | |
| 12 November 2012 | Expanding Horizons 25 pax |
| 15 November 2012 | On Course Tours 31 pax |
| 17 November 2012 | Expanding Horizons 43 pax |
| 29 November 2012 | Mark Webber Challenge 70 px |
| 30 November 2012 | Mark Webber Challenge 70 px |
| 2013 | |
| 18 May 2013 | Grouplink tour 39 pax |
| 22 May 2013 | Probus |
| 1 June 2013 | Gary Egan meeting, Lunch 6 pax |
| 5 June 2013 | Smith’s travel 28 Pax |
| 27 July 2013 | Social club function |
| 17 August 2013 | Ladies tipping function |
| 2 October 2013 | Downunder Tours 19 pax |
| 19 October 2013 | MX-5 club 30 pax |
| 23 October 2013 | Probus |
| 24 October 2013 | Victor Tours 21 pax |
| 26 October 2013 | Gillie/King wedding |
| 29 October 2013 | Expanding Horizon Tour 36 pax |
| 5 November 2013 | Maltese Club 55 pax |
| 16 November 2013 | Monaro Club 23 Pax |
| 23 November 2013 | Trade Travel 13 pax |
| 25 November 2013 | Expanding Horizon 35 pax |
| 26 November 2013 | On Course Tours 30 pax |
| 2014 | |
| 17 February 2014 | Northern Highlands Tours 19 pax |
| 22 February 2014 | Harvey World Travel 32 pax |
| 23 February 2014 | Harvey World Travel 32 pax |
| 2 March 2014 | Golf Group 35 pax |
| 3 March 2014 | Golf Group 31 pax |
| 4 March 2014 | Golf Group 31 pax |
| 7 March 2014 | API Group 45 pax |
| 8 March 2014 | API Group 45 pax |
| 9 March 2014 | API Group 45 pax |
| 15 March 2014 | Wilsons Coaches 37 pax |
| 18 March 2014 | Sth Coast Car Club 27 pax |
| 20 March 2014 | Northern Highland 25 pax |
| 1 April 2014 | Goulburn Car Club 48 pax |
| 2 April 2014 | Goulburn Car Club 48 pax |
SCHEDULE B
NON-STANDARD DAYS WORKED BY KIEN HOONG (PETER) LOH
| Pay Week | Days worked |
| 12 to 18 July 2010 | Tuesday to Sunday |
| 18 to 25 July 2010 | Monday to Sunday |
| 20 to 26 September 2010 | Tuesday to Sunday |
| 27 September to 3 October 2010 | Monday (shift commencing at 5:00pm) Tuesday to Sunday |
| 11 to 17 October 2010 | Monday to Tuesday, Thursday to Saturday |
| 18 to 24 October 2010 | Monday to Wednesday, Thursday to Sunday |
| 1 to 7 November 2010 | Monday to Thursday, Saturday to Sunday |
| 8 to 14 November 2010 | Monday to Sunday (Shift on Friday commencing at 6:00pm, Shift on Sunday finishing at 4:00pm) |
| 15 to 21 November 2010 | Tuesday to Sunday |
| 20 to 26 December 2010 | Monday to Thursday, Sunday |
| 27 December 2010 to 2 January 2011 | Monday to Sunday |
| 3 to 9 January 2011 | Monday to Wednesday, Friday to Saturday |
| 10 to 16 January 2011 | Monday to Wednesday, Friday to Sunday |
| 7 to 13 February 2011 | Monday to Sunday |
| 28 February to 6 March 2011 | Monday, Wednesday to Sunday |
| 7 to 13 March 2011 | Monday to Sunday |
| 14 to 20 March 2011 | Monday to Sunday |
| 18 to 23 April 2011 | Monday to Sunday |
| 22 to 28 August 2011 | Monday to Tuesday, Thursday to Sunday |
| 29 August to 4 September 2011 | Monday to Tuesday, Thursday to Sunday |
| 12 to 18 September 2011 | Monday to Tuesday, Thursday to Sunday |
| 19 to 25 September 2011 | Monday, Wednesday to Sunday |
| 26 September to 2 October 2011 | Monday to Tuesday, Thursday to Sunday |
| 3 to 9 October 2011 | Tuesday to Sunday |
| 10 to 16 October 2011 | Monday to Thursday, Saturday to Sunday |
| 17 to 23 October 2011 | Monday to Sunday |
| 23 to 30 October 2011 | Monday to Wednesday, Friday to Sunday |
| 31 October to 6 November 2011 | Monday to Wednesday, Friday to Sunday |
| 7 to 13 November 2011 | Monday to Thursday, Saturday to Sunday |
| 5 to 11 December 2011 | Monday, Wednesday to Sunday |
| 23 December 2011 to 1 January 2012 | Monday to Sunday |
| 6 to 12 February 2012 | Monday to Thursday, Saturday to Sunday |
| 13 to 19 February 2012 | Monday to Thursday, Saturday to Sunday |
| 20 to 26 February 2012 | Monday to Wednesday, Friday to Sunday |
| 27 February to 4 March 2012 | Monday to Wednesday, Friday to Sunday |
| 5 to 11 March 2012 | Monday to Wednesday, Friday to Sunday |
| 12 to 18 March 2012 | Monday to Wednesday, Friday to Sunday |
| 19 to 25 March 2012 | Monday to Thursday, Saturday to Sunday |
| 26 March to 1 April 2012 | Monday to Thursday, Saturday to Sunday |
| 2 to 8 April 2012 | Monday to Tuesday, Thursday to Sunday |
| 7 to 13 May 2012 | Monday to Wednesday, Friday to Sunday |
| 24 to 30 December 2012 | Monday, Wednesday to Sunday |
| 11 to 17 February 2013 | Monday to Sunday |
| 25 February to 3 March 2013 | Monday to Sunday |
| 4 to 10 March 2013 | Monday to Sunday |
| 25 to 31 March 2013 | Monday to Sunday |
| 14 to 20 April 2014 | Monday to Sunday |
SCHEDULE BB: DAYS AND HOURS WORKED BY MS LOW
| Start of shift | End of shift | Length of unpaid break (taken between 3pm – 6pm) | Total number of hours worked | |
| Mon 7 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 8 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 9 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 10 Sept 2009 | Rostered day off | |||
| Fri 11 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 12 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 13 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 14 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 15 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 16 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 17 Sept 2009 | Rostered day off | |||
| Fri 18 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 19 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 20 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 21 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 22 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 23 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 24 Sept 2009 | Rostered day off | |||
| Fri 25 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 26 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 27 Sep 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 28 Sept 2009 | Rostered day off | |||
| Tue 29 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 30 Sept 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 1 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Fri 2 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 3 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 4 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 5 Oct 2009 | Rostered day off | |||
| Tue 6 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 7 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 8 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Fri 9 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 10 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 11 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 12 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 13 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 14 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 15 Oct 2009 | Rostered day off | |||
| Fri 16 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 17 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 18 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 19 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 20 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 21 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 22 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Fri 23 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 24 Oct 2009 | Rostered day off | |||
| Sun 25 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 26 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 27 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 28 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 29 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Fri 30 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 31 Oct 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 1 Nov 2009 | Rostered day off | |||
| Mon 2 Nov 2009 | Rostered day off | |||
| Tue 3 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 4 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 5 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Fri 6 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 7 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 8 Nov 2009 | Rostered day off | |||
| Mon 9 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 10 Nov 2009 | Rostered day off | |||
| Wed 11 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 12 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Fri 13 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 14 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 15 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 16 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 17 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 18 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 19 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Fri 20 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 21 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 22 Nov 2009 | Rostered day off | |||
| Mon 23 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 24 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Wed 25 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Thu 26 Nov 2009 | Rostered day off | |||
| Fri 27 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sat 28 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Sun 29 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Mon 30 Nov 2009 | 12.00 | 21.00 | 2 hours | 7 hours |
| Tue 1 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Wed 2 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Thu 3 Dec 2009 | Rostered day off | |||
| Fri 4 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Sat 5 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Sun 6 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Mon 7 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Tue 8 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Wed 9 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Thu 10 Dec 2009 | Rostered day off | |||
| Fri 11 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Sat 12 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Sun 13 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Mon 14 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Tue 15 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Wed 16 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Thu 17 Dec 2009 | Rostered day off | |||
| Fri 18 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Sat 19 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Sun 20 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Mon 21 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Tue 22 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Wed 23 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Thu 24 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Fri 25 Dec 2009 | Rostered day off (Christmas Day) | |||
| Sat 26 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Sun 27 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Mon 28 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Tue 29 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Wed 30 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Thu 31 Dec 2009 | 12.00 | 22.00 | 2 hours | 8 hours |
| Fri 1 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Sat 2 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Sun 3 Jan 2010 | Rostered day off | |||
| Mon 4 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Tue 5 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Wed 6 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Thu 7 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Fri 8 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Sat 9 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Sun 10 Jan 2010 | Rostered day off | |||
| Mon 11 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Tue 12 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Wed 13 Jan 2010 | Rostered day off | |||
| Thu 14 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Fri 15 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Sat 16 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |
| Sun 17 Jan 2010 | 12.00 | 22.30 | 2 hours | 8.5 hours |