FWO v Mhoney Pty Ltd
[2016] FCCA 2959
•24 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FWO v MHONEY PTY LTD & ANOR | [2016] FCCA 2959 |
| Catchwords: INDUSTRIAL LAW – Application for orders arising out of alleged underpayments of wages and other entitlements – whether employer breached regulations relating to record-keeping and payslips – whether respondents failed to comply with Notice to Produce – whether second respondent involved with contraventions of the Act and the relevant award – application substantially successful. |
| Legislation: Fair Work Act 2009, ss.550 General Retail Industry Award 2010 |
| Cases cited: Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | MHONEY PTY LTD |
| Second Respondent: | ABDULRAHMAN TALEB |
| File Number: | MLG 1223 of 2015 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 12 & 13 September 2016 |
| Date of Last Submission: | 13 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Knowles |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Respondent: | Ms Line |
| Solicitors for the Respondent: | Souki Lawyers |
ORDERS
There be general liberty to apply to the parties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1223 of 2015
| FAIR WORK OMBUDSMAN |
Applicant
And
| MHONEY PTY LTD |
First Respondent
| ABDULRAHMAN TALEB |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding involves a considerable number of disputed matters. Broadly speaking, they may be said to be whether the first respondent employed a Mr Kazemi for two periods of employment, as he says, or one period of employment as the respondents say. There are further multiple issues as to whether Mr Kazemi was properly paid and/or received appropriate award entitlements during his employment. There is a further issue as to whether the second respondent properly responded to a Notice To Produce (“NTP”). Finally, there is the question of what has been described as the accessorial liability of the second respondent for the various actions of the first respondent.
For the reasons that follow I think that Mr Kazemi was employed for two periods of employment. It will be necessary to deal in detail with the various breaches of the Fair Work Act 2009 (“the FW Act”) and the General Retail Industry Award 2010 (“the Award”). I also find that the first respondent did fail to respond appropriately to the NTP, albeit that the matter now pressed is on a slightly different footing to that pleaded. Finally, I find that the second respondent was involved within the meaning of s.550 of the Act in the various contraventions committed by the first respondent.
The Agreed and Disagreed Issues
The Fair Work Ombudsman (“the FWO”) has alleged 13 contraventions of the Act against the first respondent, some arising from failure to comply with the Award and others arising from failure to comply with terms of the Act and/or the Regulations made thereunder. The FWO has also alleged that the second respondent was involved in five contraventions which are set out at paragraph 9 of the applicant’s outline of submissions on liability.
At paragraph 14 the applicant’s written submissions assert uncontroversially that the following matters are not in dispute:
the First Respondent was a constitutional corporation and a national system employer within the meanings of sections 12 and 14 of the Act;
a)the Modern Award applied to the First Respondent and to the Employee;
b)pursuant to the Modern Award and the FW Act, there was a requirement to:
i)pay the Employee minimum wages, overtime, Saturday, Sunday and public holiday loadings;
ii)pay the Employee superannuation;
iii)provide the Employee with meal and rest breaks;
iv)pay the Employee annual leave on termination;
v)pay the Employee in full and at least monthly;
vi)make and keep records prescribed by the Fair Work Regulations 2009 (Cth) (FW Regulations), including Regulation 3.32, 3.34 and 3.36;
vii)issue payslips within one working day of paying an amount to the Employee; and
viii)comply with a Notice to Produce.
It should also be noted that there is no issue in the proceeding as to the capacity of the applicant to bring the proceedings (see statement of claim and amended defence, both at paragraph 1).
The first respondent has admitted 4 of the 13 contraventions alleged against it which are described at paragraph 16 of the applicant’s written submissions uncontroversially as:
a)Contravention 8 – Failure to pay superannuation in accordance with clause 22.2 of the Modern Award (this contravention is admitted with respect to the Second Employment Period only);
b)Contravention 10 – Failure to pay accrued, untaken annual leave and annual leave loading on termination of employment as required by subsection 90(2) of the FW Act (this contravention is admitted, but the quantum of the annual leave underpayment is not);
c)Contravention 11 – Failure to make and/or keep employee records in accordance with section 535 of the FW Act by contravening Regulation 3.32 and 3.36 (but not Regulation 3.33); and
d)Contravention 12 – Failure to provide pay slips in accordance with section 536 of the FW Act.
The written submissions note at paragraph 17:
“The Second Respondent has admitted to being involved in contraventions, to the extent that the contraventions against the First Respondent are admitted. The only contravention admitted by the First Respondent which is also alleged against the Second Respondent (pursuant to section 550 of the FW Act) is Contravention 10 – failure to pay accrued, untaken annual leave and annual leave loading on termination of employment as required by subsection 90(2) of the FW Act.”
The disputed matters as they stand following these various matters of agreement are characterised at paragraph 18 of the applicant’s written submissions, and were repeated in oral submissions before the Court, as:
a)Whether Mr Kazemi worked at the business during the first employment period;
b)The hours and days worked by Mr Kazemi including whether the employee worked on Sundays, public holidays, and whether he worked overtime;
c)The amounts paid to Mr Kazemi;
d)The quantum of underpayments (dependent upon the above matters);
e)The circumstances surrounding the cessation of Mr Kazemi’s employment;
f)Whether the first respondent complied with the NTP.
To these I would add the record keeping dispute and the question of the accessorial liability of the second respondent.
At this point it is appropriate to turn to the affidavit evidence relied upon by the parties.
The Affidavits of Mr Kazemi
The first affidavit of Mr Kazemi sworn 22 December 2015 was tendered as exhibit A1. Mr Kazemi deposed that he arrived in Australia in December 2010 as a permanent Australian resident being originally an Afghan national. He deposed that at the beginning of 2012 he went to the Sunshine Fruit Market and asked the second respondent for a job. He deposed that the second respondent said to him in response to a question about pay “[t]his shouldn’t be an issue; you will get $120 a day…[y]ou will work from 6.00 am to 7.00 pm, seven days a week”.
Mr Kazemi deposed to working from 10 February 2012 to 23 April 2012 and to be known at the workplace as “Jamal” or “Jamal Afghani” when another person called Jamal started work. He deposed that his duties included taking fruit and vegetables from the coolroom and stacking them on stalls in the shop. At paragraph 7 he deposed:
“When I began working for the Market in February 2012, I did not receive any wages for the first three weeks of work.
I asked Abdulrahman “Why did I not receive any money for this period?”
Abdulrahman replied along the lines of, “We keep this amount as a bond. You can ask anyone who works for me, we do it for everyone. When they leave we calculate whether they caused any damage and we give the bond back if everything is okay.”
Mr Kazemi went on to depose that because he did not receive wages he decided to keep a record of the hours he worked at the market as well as the amounts paid to him. He deposed at paragraphs 8-:
“Now produced and shown to me and marked “SK1” is a true copy of the records I kept. I started making the Time and Wages Records on about 10 February 2012. For most of the First Employment Period, I recorded the hours I worked every day when I came home from work.
I recorded two types of amounts in the Time and Wages Records. The amount which I circled is the amount which I was expecting to be paid. The amount which I underlined is the amount I actually was paid. I was paid weekly in cash by Abdulrahman. I was often not paid the amount which Abdulrahman had said to me that I would be paid, that is, $120 for a full day (a full day was 13 hours).”
He went on relevantly to depose that the time and wages records were an accurate record of the hours and days that he worked during the first employment period as well as the amounts he was paid. He deposed that where he worked less than 13 hours he was not paid $120 but was paid at the rate of $10 an hour up to a maximum of $120 per day. No different moneys were paid for work on Saturdays, Sundays and public holidays.
Mr Kazemi deposed that he had been provided with a copy of time records kept by the first respondent and said that these were mostly an accurate record of the hours and days he worked as recorded against the name Jamal. He deposed that he had not himself recorded his hours in a document kept by the first respondent, but had noted another employee, Shazia, do so, although it should be noted Shazia did not always work the same times as the applicant.
The applicant deposed at paragraph 16 that during the first employment period he was not allowed rest or meal breaks, and when he sought to take such breaks the second respondent told him that the business was too busy and the customers needed help, and that if he did not like it he should go home.
Mr Kazemi deposed to informing the second respondent in about mid-April 2012 that he wished to go back to visit his family in Pakistan, and was told to book his plane ticket and that he would receive his pay thereafter. He deposed to working for a further week but not being paid. He said the second respondent told him “Once you come back from Pakistan, then we will give you work here”.
The applicant deposed that he had received no annual leave or annual leave loading or accrued leave in relation to his first period of employment, and he further deposed that he went overseas between 1 May 2012 and 22 October 2012.
The applicant then deposed to his second employment period. About the beginning of December 2012 he went back to the Sunshine Fruit Market and asked the second respondent if he could recommence work, and this was agreed. He worked between 3 December 2012 to 27 January 2013.
Mr Kazemi did not keep records of the hours he worked or the amounts he was paid during the second employment period but deposed to working 6 am to 7 pm for six to seven days each week at a rate of $10 an hour up to a maximum of $120 per day. He deposed again to not having rest or meal breaks during this time because the second respondent would not permit it. He deposed that the employer records were an accurate record of the hours and days he worked during the second employment period as recorded against the name “Jamal Afghani”.
He deposed to deciding to leave the market because he had another job in Doncaster and that he gave three weeks’ notice. He deposed to not receiving any annual leave or annual leave loading when he left. He deposed to not being aware of any superannuation payments made on his behalf and the fact that he never received payslips.
He went on to depose that the second respondent appeared to be the boss of the first respondent and was also the person who paid him his cash wages. He then deposed to lodging his workplace complaint form with the applicant in July 2014. The same was exhibited as SK-4.
Exhibit SK4 relevantly asserts:
He did not pay me the money that was owed to me (2 months + 1 week) after I left his employ despite his promises for about six months after I left. The money is still owing.
He did not stop paying me when I was working for him but he would pay less than was due each week.
I have calculated the amount owing in unpaid wages as $7200.00.
It should be noted that since Mr Kazemi does not write English or speak it, it is conceded that this complaint was composed with the assistance of a friend.
Mr Kazemi’s second affidavit sworn 19 April 2016 responds to an affidavit of Mr Taleb. Relevantly he deposes to not having a brother called Noor and not knowing anybody who goes by that name. He further denied having lunch with Mr Taleb at any time during his employment and asserted that he had to pay for any food he took from the Sunshine Fruit Market, and that he was never invited to Mr Taleb’s home for dinner. He further denied being asked to provide his tax file number or superannuation fund details. Otherwise, he referred to and reaffirmed details of his earlier affidavit.
Mr Kazemi’s third affidavit sworn 9 September 2016 was tendered as exhibit A3. He sought to clarify a number of matters he had said in his first affidavit. He annexed as SK-1 a copy of his complaint to the Fair Work Ombudsman, but annexing the previously omitted wages records that he had attached. He went on to say that when he was in detention on Christmas Island he kept a diary and wrote in it from day to day. He deposed that he recorded his hours of work and wages in that diary which he described as a personal diary on a daily basis. He then deposed:
I then started keeping a second notebook in which I recorded just my hours of work and wages. These records are annexed at SK-1 of my first affidavit Time and Wages Record).
I copied the information which I had recorded in my Personal Diary about my hours of work and wages over to the Time and Wages Records. I usually did this weekly, but sometimes it would be less often than weekly. I did this until towards the end of April 2012.
I remember at one stage I lost my Personal Diary. I don’t remember exactly when I lost it but it was before I went overseas in 2012. I went overseas and when I came back, I tried to remember the days and hours that I worked at the Sunshine Fruit Market before I went overseas and which I had not recorded in the Time and Wage Records at the time. Because I did not have the Personal Diary to refer to, I wrote down my hours of work from memory. From about the end of April, I wrote the dates and times in my Time and Wages Records based on my memory. The end of page 11 and the whole of page 12 of annexure SK-1 to this affidavit were written from my memory.
It should be noted that the entries to which this last reference refers are entries in late April and May 2012 when on any view of the matter the applicant was overseas. They are plainly utterly wrong.
The Affidavit Evidence of Ronnie Wong
Mr Wong is a Calculations Team Officer working for the applicant. He was however at relevant times an inspector. He deposed in his affidavit sworn 26 February 2016 and adopted as exhibit A4 that on 3 February 2012 he received a complaint from Ahmed Abdallah. He investigated this complaint and on 24 April 2012 he attended the first respondent’s premises together with Fair Work Inspector Alison Read.
They spoke to a man who identified himself as Eddie (subsequently clear beyond doubt to be the second respondent) and put to him that the current casual rate for a level 1 employee was approximately $22 gross per hour. Eddie stated that he would not pay that and the most he would pay was about $16 to $17 per hour. Ms Read told Eddie that the current rate for a part time and full time employee was approximately $17 and above, and that the rates would be increasing from 1 July onwards to which Eddie responded that he would not pay more than what he was already paying because he could not afford it. Mr Wong appended as RW-4 a copy of his contemporaneous file notes of the discussion.
Mr Wong went on to depose that on 17 May 2012 he again attended the first respondent’s premises and spoke to Eddie who said his real name was Abdulrahman Taleb. Mr Wong said “I saw that FWI Read served a Notice to Produce Records or Documents on Eddie personally”.
Relevantly on 17 May 2012 a finalisation of investigation letter was sent to the second respondent confirming that a resolution had been achieved in the dispute in relation to Mr Abdallah (although through objection I have not been told the terms of the resolution). The letter relevantly also stated that it appeared that the award applied to the business and stated the relevant pay rates that would arise therefrom.
The Affidavits of Katherine Goonan
Ms Goonan’s first affidavit was affirmed 29 February 2016 (exhibit A5). She gave details of her appointment and the fact that she has been in charge of the investigation into the first respondent’s alleged contraventions since around 25 July 2014. She deposed as to the registration of the first respondent in December 2003 and its operation of the business as the Sunshine Fruit Market. She deposed to a complaint from Mr Kazemi received on 8 July 2014 (already annexed to Mr Kazemi’s affidavit).
She deposed to receiving a copy of a notebook from Mr Kazemi in about July 2014 and annexed as tab 4 a copy of those records. She went on to depose to a visit to the business on 19 August 2014 together with FWI Stella and FWI Ma. She deposed to speaking primarily with a man who identified himself as Danny. After she had introduced herself to him, Danny rang someone on the phone and gave the telephone to Ms Goonan. The person to whom she spoke on the telephone identified himself as Abdulrahman. He further said that it was not him that owed Mr Kazemi money but his cousin.
Ms Goonan told Danny that she understood time and wage records were kept on the premises and asked him to provide them, following which Danny rang Abdulrahman again and Abdulrahman gave permission to look at the books. Danny then told the person at the counter to look for the time records and three exercise books were handed to Ms Goonan. The books contained hours of work for employees of the business for the period between 19 March 2012 to August 2014. Ms Goonan annexed as tab 5 her contemporaneous file note of the site visit as well as a typed version of the same at tab 5.
Ms Goonan went on to note that she took two exercise books which contained records for the period 19 March 2012 to November 2013 in order to make copies of them and gave Danny a receipt. She did not take the third book which related to the period from December 2013 but directed FWI Stella to take a photograph of the pages of that book. A true copy of the records was set out at tabs 6 and 7. Ms Goonan went on to depose that she had understood Danny to be the second respondent’s brother and that his full name is Adnan Taleb.
Ms Goonan deposed to returning a missed telephone call from Abdulrahman Taleb regarding the records on 19 August 2014 and her file note is at tab 8. The record of the conversation relevantly is as follows:
I phoned Abdul Taleb and identified myself.
He said that from when you rang (from the Fruit Market) he did not know who I was talking about. He did not know a Syed Kazemi. This boy Jamal, he knows, this name is on the books. He said that the problem was not that he had not been paid.
He said that the problem was because of a car that Jamal had sold to his cousin Kahleb. Jamal sold the car to Kahleb and there were a lot of fines under his name now. Kahleb racked up fines under Jamal’s name. Kahleb also had an accident and now the insurance were after Jamal as well.
I clarified that after the sale of the car, the registration had not been transferred to Khaleb Taleb. Abdul said that this was correct.
The affidavit went on to depose relevantly to the fact that an earlier investigation in 2012 had given rise to a receipt which showed a business number which was that of the first respondent and on 3 September 2014 the first respondent’s lawyers, Souki Lawyers, wrote that they were instructed that the business at the time the employee was allegedly employed was the first respondent.
On 2 October 2014 Samia Taleb attended a recorded interview with the FWO and confirmed that the first respondent employed Mr Kazemi. The transcript of that visit is at tab 12. Samia Taleb is the wife of the second respondent and was secretary of the first respondent between 2004 and August 2013. She confirmed that she was authorised to speak on behalf of the first respondent at the interview.
Ms Goonan went on to depose to her conclusion as the result of the investigations she made that the first respondent was the employer of Mr Kazemi during his respective employment periods. During the period between 19 March 2012 and 23 April 2012 the records show two employees named Jamal. One was referred to as “Jamal” or “Jamal 1” and the other was referred to as “Jamal 2 Sudan” or “Jamal 2”. “Jamal 2” was not, however, apparently from Sudan.
Ms Goonan compared the hours of work of the employee named “Jamal” or “Jamal 1” in the employer records against the Kazemi records. The Kazemi records asserted employment between 10 February 2012 to 29 April 2012, but the employer records only showed “Jamal” or “Jamal 1” working from 19 March 2012 to 23 April 2012.
Ms Goonan determined that Mr Kazemi was employed between 10 February 2012 to 29 April 2012. She then worked out the alleged underpayment of wages during that period. Ms Goonan noted that on three occasions an amount circled in the Kazemi records, being the amount Mr Kazemi expected to be paid, was consistent with the amounts recorded in the employer records (see paragraph 31 of the affidavit).
In relation to the second employment period Ms Goonan noted that between 3 December 2012 and 27 January 2015 two employees named Jamal appeared in the employer records. One was referred to as “Jamal Afghani” or “Jamal Afghanistan”, and the other was referred to as “Jamal 2”. Ms Goonan noted that during the Samia interview Ms Taleb confirmed that the employee was known to her as “Jamal Afghani”.
To determine underpayment amounts owed to Mr Kazemi, Ms Goonan referred to the employer records and the hours recorded against the name “Jamal Afghani” or “Jamal Afghanistan” and the verbal evidence from the employee that he was paid $10 an hour up to a maximum of $120 per day. Ms Goonan noted that on three occasions the employer records record a total amount paid to Jamal. On at least one occasion an analysis of the amount paid demonstrated that Mr Kazemi was paid $10 an hour up to a maximum of $120 a day, and if he worked for longer than 12 hours a day he was paid less than $10 per hour.
Ms Goonan went on to depose to the sending of a Determination of Contravention letter to the first respondent on 24 December 2014 requiring the first respondent to rectify underpayment assessed at $29,580.74.
She then deposed to certain alterations of calculation made subsequently and noted that no pay had been apparently made to Mr Kazemi to rectify the failure to pay correct wages.
Following a revised set of calculations Ms Goonan calculated the underpayments made to Mr Kazemi in total as $25,588.09.
Ms Goonan then deposed to the issue of a NTP to the first respondent on 29 August 2014 and to the receipt on 16 November 2014 of extracts from timesheets from the first respondent’s solicitors. Ms Goonan noted at paragraph 47 that Ms Taleb had confirmed during her interview the existence of a book which recorded payments made to employees of the business and the fact that no such records were provided in response to the NTP. Thereafter on 29 September 2014 Ms Goonan issued an NTP to CNA Accountants Pty Ltd which was responded to on 17 October 2014, providing a series of documents.
Ms Goonan noted that four of the seven employees between July 2011 and June 2012 appeared to be relatives of the second respondent bearing the surname Taleb.
Ms Goonan went on to depose to the fact that the company search at tab 2 showed that the second respondent was a director of the first respondent at the time Mr Kazemi was employed. During her interview Ms Taleb said in respect of the second respondent that:
(a) he was the manager of the business;
(b) the second respondent together with her recorded hours worked by employees; and,
(c) the second respondent pays the employees in cash.
Finally, Ms Goonan noted that in some instances the employer records do not refer to employees by their name but rather by a particular description. Tab 23 is a copy of employer records which demonstrate the failure to record employee names.
Ms Goonan also tendered as exhibit A6 her affidavit affirmed 13 May 2016. In large part it was a response to the affidavit of Mr Taleb. It is not necessary to traverse the matters in the affidavit in any great detail, although I note a file note created on 9 July 2014 by Rebecca Brain which relevantly states “Contacted Abdul Rahim and advised that a complaint was lodged with the FWO. I explained the nature of the complaint and the role of the FWO in complaint process.” (annexure KG-3). I also note annexure KG-4 which is a note made by Andrea Tvrtkovic on 11 July 2014 recording Mr Abdulrahman’s denial that he owed anybody any money.
The Affidavit of Dane Stella
Mr Stella’s affidavit affirmed 29 February 2016 (exhibit A9) confirms his employment as a Fair Work Inspector. He deposed to visiting the Sunshine Fruit Market on 19 August 2014 together with Ms Goonan and Mr Ma. He deposed that when he first entered the property he was stopped by a male wearing a Sunshine Fruit Market shirt who identified himself as Danny. Shortly thereafter they were joined by FWI Goonan.
Mr Stella then proceeded to the front of the store and spoke to a cashier who gave him her name and told him that she had worked for the business for nearly six months, was paid cash in hand at a flat rate of $10 per hour, received no payslips and recorded her start and finish times in an exercise book maintained behind the counter of the first cashier.
Mr Stella then returned to the back of the store and approached Ms Goonan and Danny and heard Danny say words to the effect that “there are no records for Jamal, he was only here for one day”. After being further questioned by FWI Goonan, Danny said that Jamal had only worked for one month. Mr Stella then told Danny that he had a reasonable belief that records were kept under the cashier and pointed to where he believed them to be. He walked over to the cashier in order to monitor where he believed the records were to ensure they remained there.
After some time on the telephone Mr Stella saw Danny give the records kept under the cashier to Ms Goonan who identified the time books relevant to the matter, but asked him (Mr Stella) to take photos of the most current book which he did. He annexed his contemporaneous file note made of the site visit.
The Affidavit of Mr Abdulrahman Taleb
Mr Taleb’s affidavit filed 11 April 2016 (exhibit R1) confirms that he has operated Sunshine Fruit Market in the capacity as owner and in variable periods as a manager for the past 12 years. He deposed that the business was sold at the end of 2014.
He went on to depose that in November 2012 he had been approached by a customer called Noor and told that his brother was looking for work and that the brother would work for free and would do any job. Noor was alleged to have asserted that his brother had no skills and that he wanted an opportunity as he had recently migrated to Australia.
Mr Abdulrahman went on to depose that he agreed to give the brother a chance and to employ him but that he paid him for his work from the first day he started working. He said it was agreed that the employee would receive a fixed fee salary from Monday to Saturday, and that the shop was not open on Sundays during this time. It is not deposed in terms as to whether this was an agreement made with Noor or with Mr Kazemi.
The affidavit went on to assert that the employee was introduced to Mr Taleb as Jamal and because there was another Jamal working already the employees started calling him “Jamal Afghani”. The affidavit deposes that Mr Taleb now understands Mr Kazemi’s full name to be Syed Jamal Kazemi.
The affidavit goes on to depose that Mr Kazemi was employed from 3 December 2012 until 28 January 2013. Mr Taleb deposed that he agreed to train and employ Mr Kazemi who had no experience and limited English language skills, and that he received a wage from the very first day he worked. Mr Kazemi’s sole responsibility was to help stack shelves and bring fruit from the coolroom to the shop floor using a trolley.
Mr Taleb deposed that Mr Kazemi worked Monday to Saturday from
7 am till 5 pm. Staff who stock shelves would ordinarily start between 7.30 am to 8 am and finish between 3.30 pm and 4.00 pm and that no staff were ever required to be at the shop 7 am to 5 pm even though it was open from 7 am to 5 pm. The affidavit deposed that Mr Kazemi, like all employees, was allowed to “eat from the shop and we would have lunch together most days. I also invited him to my home for dinner and I treated him very well.”
The affidavit went on to assert that all employees took regular breaks and were treated like family and were able to take breaks whenever they wanted to. Mr Taleb deposed that he asked Mr Kazemi for his tax file number and tax declaration documents but these were never provided and when Mr Taleb told Mr Kazemi he would have to provide them he left work and never returned. According to the affidavit Mr Taleb was unable to provide payslips as he did not have the information required to provide to his accountants, CNA Accountants.
The affidavit deposed that Mr Taleb tried to obtain Mr Kazemi’s superannuation details and once again nothing was provided, and therefore no arrangements were made. Mr Taleb deposed that Mr Kazemi ceased employment abruptly without notice on 28 January 2013, but that he returned and worked on 15 April 2013 and 16 April 2013. The affidavit deposed that Mr Taleb agreed as “I felt bad for him given he told me he supports his family overseas I agreed for him to return. He again decided to leave without notice, he just simply did not return to work.”
Mr Taleb went on to depose that records of employment provided to his accountant who kept records of an extract of the timesheets for Mr Kazemi under the name “Jamal Afghani” and annexed those records as ART-1. He went on to say at paragraph 23 “I did not keep any written records of the time, as I would simply know the day the employee was working and pay them accordingly.” The affidavit then went on to traverse the question of the alleged dispute arising out of the sale of a car. I note that it is described in the following terms:
I did not hear from Mr Kazemi for some time and then he contacted me to advise that he had an issue with my brother Danny Taleb, to whom Mr Kazemi sold the car. The issue concerns alleged traffic fines that were accumulated in Mr Kazemi’s name after the car sale in the amount of $7,000. I told him to bring me the papers and I would settle the matter between them. He hugged and kissed me and thanked me. I did not hear from him after this and after a few weeks I received a letter from the FWO.
Otherwise, the affidavit is generally unremarkable, containing Mr Taleb’s denials of any wrongdoing. I note that at paragraph 27 Mr Taleb deposed:
Officers from FWO attended to my business premise and retrieved a book of records, this book had been missing for some months. Either way I would not ordinarily write down any records in the book, as it was not necessary given Mr Kazemi was paid a fixed salary.
It should be noted that annexure ART-1 is what is described as “Extract Form (sic) Time Sheets Provided By Client” prepared by CNA Accountants on 16 September 2014. This records employment commencing on 3 December 2012 and notes various alleged payments including an allowance for meals of $140 or on various other occasions $120 or $100, and indeed as low as $60. It also records that the employee worked voluntarily two days, 24 hours, on 15 April 2013. The letter notes that in addition to a half hour break the employee was given 15 minutes per day to pray. The letter also states “the hours and rates of pay has been given by our client and no payslips were given to the employee”.
The Evidence Given At Court
What follows is not a transcript. It is taken from my notes.
Mr Kazemi
Mr Kazemi was called and adopted his three affidavits as true and correct.
Counsel for the respondents took objection pursuant to s.59 of the Evidence Act to the receipt of Mr Kazemi’s purported time and wages records on the grounds that they were hearsay. I indicated I would give my reasons for overruling that objection in my judgment. In the ultimate the matter, in my view, can be dealt with shortly.
Mr Kazemi asserted at paragraph 8 of his first affidavit that he had kept a time and wages record. According to that affidavit it was a contemporaneous record. As the evidence emerged however it became clear that what Mr Kazemi was really saying was that his time and wages records were created from time to time from another diary which he kept in his own language, but which was no longer available. Nonetheless, the entries made by Mr Kazemi seemed to me on the evidence to be sufficiently contemporaneous for these purposes.
In my view, where a witness says “this is a record that is created from time to time which records what occurred”, this is not properly regarded as hearsay. As I may have observed during the running of the trial, such records may be criticised as being unreliable, as not being contemporaneous, unreliable because the source documentation is not produced (as was the case here) or self-serving, but they do not seem to me to be hearsay as they do not involve assertions as to what any third party might have told Mr Kazemi.
Mr Kazemi was cross-examined. He was first challenged as to the figure he had included in his complaint to the FWO calibrating his underpayment at $7,200. Mr Kazemi said that he calculated these wages and that they were correct, and that he had attached the timesheets that he had worked.
Counsel took Mr Kazemi to the entry for 1 May 2012 and noted that 13 hours was claimed on each occasion in May. It was put to Mr Kazemi (as is indeed uncontroversial) that he was abroad throughout the whole of May. Mr Kazemi responded that he was not sure about the precise dates but he was overseas. He was not familiar with the dates.
Counsel then took Mr Kazemi to his first affidavit, exhibit A1. This noted that Mr Kazemi was indeed overseas between 1 May 2012 and 22 October 2012. Mr Kazemi confirmed that this was the case but that he was not certain about dates. He confirmed that he can read Roman numbers.
When it was put to Mr Kazemi that his accounts in exhibit A3 purporting to record him working in May 2012 are incorrect, Mr Kazemi said that these records were not correct because he took it out of his memory. He went on to say “maybe it is not correct what I put there”. He said he was not good at dates, and that that page he had taken out of his memory but was maybe not correct. He was unable to say when he had written the May records, but this was after he returned to Australia in October 2012. He said he was not sure if he knew whether he had worked in May or not. He denied intending to mislead the FWO and had tried to explain his circumstances. He confirmed that he had claimed work on 19 days in May at 13 hours each day.
Mr Kazemi said that he made a mistake and that he conceded that the hours he claimed in May (247 in total) was a lot of hours. It was put to Mr Kazemi that he deliberately tried to mislead the FWO, and he denied this.
Mr Kazemi was then further cross-examined about paragraph 8 of exhibit A1. He said he recorded his hours in a diary and then transposed them to the complaint. He provided the diary to the FWO. When it was put to him that he had not worked between February and April 2012 Mr Kazemi said he was not good with dates and did not remember. However, bearing in mind that the evidence was being given through an interpreter, I understood Mr Kazemi to ultimately insist that he had indeed worked between February and April 2012.
His primary responses were to the effect that he did not remember precise dates. He did, however, insist that he had worked in a period before December 2012 to January 2013. He conceded he was known either as “Jamal” or “Jamal Afghani” at work and that there was another Jamal also. He further conceded that the Jamal and Jamal 2 recorded as working in June 2012 were not him. He further confirmed that he is not Jamal Habani (or Habashi – the name was not easy to understand).
He said he was not sure whether he was “Jamal 1” referred to in employer’s records. He confirmed that he was the only Jamal from Afghanistan working at Sunshine Fruit.
Although taken to a number of extracts in the employer time records Mr Kazemi was by no means sure which of the Jamal’s he was referred to in the records. Mr Kazemi conceded that the first respondent is a family business run by the Taleb family, but he denied selling a car to a family member. When taken in detail to his time records Mr Kazemi was not able to offer any significant insight as to various alterations and marks made upon them.
When cross-examined about paragraph 13 of his first affidavit, Mr Kazemi said that Shazia (who he had deposed recorded his hours of work in a book) did not show him the book, nor did he know where the book was. He said she would write it down but he did not know where the book was kept.
In re-examination Mr Kazemi confirmed that his complaint to the FWO had been written by somebody from his community who had assisted him to make the complaint. He said that he cannot write and is illiterate but can write in his script in his own language.
Following this evidence I permitted further cross-examination and Mr Kazemi said that he kept a personal diary in Dari which he did not provide to the FWO although they asked for it.
In further re-examination Mr Kazemi confirmed that he did work between February and April 2012 and that the work he did was bringing fruit from the sheds and fixing it in the shop. He said he could not remember the dates but worked in the Sunshine Fruit Market taking goods from the freezer to the shop.
The Evidence of FWI Wong
FWI Wong was called and tendered his affidavit as exhibit A4. He was not subject to cross-examination.
The Evidence of FWI Goonan
Ms Goonan was called and adopted her affidavits as exhibit A5 and A6 respectively. She also sought to tender as exhibit A7 a file note of a visit to the business on 19 August 2014 made by Inspector Ma. This was the subject of objection by the respondents. In my opinion, the record is a contemporaneous record made by Inspector Ma of what took place on the date asserted. In my opinion it is clearly a business record within the meaning of s.69(1) of the Evidence Act 1995.
The record suggests that Mr Ma spoke to two employees of the first respondent on that date. One told Mr Ma that the timesheet was kept behind the counter and that they were paid $10 cash in hand. The other apparently asserted that they were paid $10 cash per hour, that the timesheets were kept behind the counter, and that they did not receive payslips.
Under cross-examination Ms Goonan confirmed that a person called Matika had told her that the boss kept a book where the time worked was recorded. She confirmed that the respondent provided no records going back before 19 March 2012 and that she had the original employer records to hand when she prepared tab 13 to her first affidavit, being the correlation of the hours recorded in both the first respondent’s time records and the employee’s records.
Counsel next tendered without objection exhibit A8 being a file note created by Ms Goonan on 15 September 2014 noting “Rosters returned to employers using registered post by Kez ma on 8 September 2014”.
The Evidence of Dane Stella
Mr Stella adopted his affidavit as exhibit A9. He confirmed that his file note being annexure 2 to his affidavit reflected what took place while he was at the site, although his original notes were no longer available. He has left employment as a Fair Work Inspector and did not take the notes with him when he left.
The Submissions and Evidence of the Respondents
Counsel noted in opening that an assertion at paragraph 12 in her written submissions that the employer’s records “may have been falsified by a friend of the Employee who works at the business” was not pressed. She further noted that there were no public holidays allegedly worked in the period of employment between December 2012 and January 2013.
The Evidence of Mr Taleb
Mr Taleb was called and affirmed his affidavit, exhibit R1, as true and correct. He confirmed that the first respondent no longer owns the shop although he is currently working. He said he sold the shop in about September to October 2014 but could not remember the dates (this lack of memory was in marked contrast to the specificity of some of the other dates he asserted).
He confirmed that the first respondent employed Mr Kazemi and stated that employment commenced on 3 December 2012. Mr Kazemi was known as “Jamal Afghani” and did not give Mr Taleb his name. There were three Jamal’s in total including “Jamal Sudani” and Mr Kazemi. Mr Kazemi was desperate for work as Christmas was approaching. He never gave Mr Taleb any documents and spoke very little English. Nonetheless Mr Taleb, as I understood it, asserted that Mr Kazemi wrote perfectly in English and had good handwriting.
He said it was agreed that Mr Kazemi would be paid $150 for working from 7 am till 4 pm and he worked five days a week and a few Saturdays. He was very reliable. He left when he was offered more moneys elsewhere. On Saturdays Mr Kazemi worked two to three hours but not more. He was paid $50 for Saturdays which Mr Taleb just gave to him.
Mr Taleb said Mr Kazemi never worked before 7 am as he was not needed before that. The shop closed between 5 pm and 6 pm and Mr Kazemi was never outside the span of 7 am till 4 pm in hours. Mr Taleb thought Mr Kazemi had another job after 4 pm as he was always desperate to leave at that time. The most Mr Kazemi ever worked on Saturdays was 7 am till 9.30 am. Mr Kazemi was paid weekly in cash and was always given $150. This was paid by Mr Taleb to him. Mr Taleb said he had done this all his life and could not take risks.
He said he used to have a little note in a private book. He told the FWO he did not know Mr Kazemi. He said all his books were gone and that Mr Kazemi had a relationship with a woman in the shop. I would interpolate and say that despite counsel’s opening remarks, it is clear that Mr Taleb was accusing Mr Kazemi of having colluded with a female employee of the business to create false records.
Mr Taleb said that when the FWO came on the scene the notebook came back. Mr Taleb called his accountants. If he had had the notebook he would have solved the problem but some notebooks were not found. When taken to the extensive records annexed as tab 6 to Ms Goonan’s first affidavit Mr Taleb said these were just for daily use and that he never relied upon this book.
He confirmed that a reference in Ms Goonan’s affidavit to “Jamal Sudani” was not Mr Kazemi. He said that Mr Kazemi was “Jamal Afghanistan”. Mr Taleb was adamant that he did not use the book. He said “$150 per day that’s it”. He denied writing the entries and did not check them although he was in the shop. He said these were kept in the first drawer which was not locked and could be done by one of the girls. He did not tell them to do so. He then went on to say that these records were made “just so workers knew we were watching them”.
He said all documents have been provided to the FWO. When taken to the annexure to his affidavits (the records from CNA Accountants) he said he had told the accountant to prepare it because the books were missing. He needed something for the FWO.
When questioned about meal allowance Mr Taleb said workers can eat at work and have free fruit. They also get $10 to take home. He said that Mr Kazemi took breaks and was free to take time between 9 am and 12 pm. He could take breakfast and lunch. He said he never got involved, it was like a family. He said Mr Kazemi never worked on Sunday although the shop was sometimes open on Sunday in 2014 after a competitor shop opened. He said “workers in this country are smarter than us. If they’re not happy they do not work.”
He was not sure if Mr Kazemi had worked any public holidays. He said Mr Kazemi left and did not give notice. He said they had a very good relationship and there was no point not to pay him. Mr Kazemi had never not been paid. He thought workers should be paid $17 per hour which was information received from his accountant. He did not know which award and did not know what awards are. He does not know laws. He relies on his accountant and has no skill with computers.
Mr Taleb Under Cross-Examination
Mr Taleb was cross-examined about his first contact with Ms Goonan. He said he received two calls from the FWO. During one he was asked about Mr Kazemi and said he did not know him. Another call was about mediation which never occurred. He said that Mr Kazemi was free to have, and did have, lunch every day.
When cross-examined about the documents provided by CNA (ART-1 to his affidavit) Mr Taleb said that he got the information from the book. When taken to page 64 of Mr Kazemi’s first affidavit Mr Taleb accepted that the records for 3 to 9 December 2012 were accurate. He then went on however to say that the records from 3 December 2012 to 28 January 2013 were not correct. He said he remembered the dates of employment. He said that the employee was paid $150 per day, being $140 plus $10 for the fruit. He said the information that the respondents provided to the FWO was taken from the book but was not accurate.
Mr Taleb conceded receiving the NTP dated 29 August 2014 (tab 17 to Ms Goonan’s first affidavit) and conceded that his solicitors have sent the documents behind tab 19 to the FWO. Mr Taleb went on to say “I know the hours he worked but we had to give something”.
He said he had decided not to provide records because he believed they were inaccurate.
Mr Taleb was cross-examined about paragraph 27 of his affidavit. He said he could not say when the book went missing. He said he had a phone call before the Fair Work Inspectors first came to see him. After Ms Goonan called him he looked for the book and could not find it. The call was about Mr Kazemi’s complaint.
When cross-examined about page 64 to Mr Kazemi’s first affidavit and the record relating to “Jamal Afghanistan” he agreed that the hours of 7 am till 4 pm were not there and said that this was not correct. When it was put to him that all employees were recorded as starting at 6 am and that this was the usual start time Mr Taleb said the start was at 7 am. Family start at 6.30 am but workers at 7 am. When it was put to him that the usual finish time was 7 pm Mr Taleb said “not at all. All finish at 4 pm.” He said he had not instructed anybody to write this (the entries in the book). He said the Saturday records and the Sunday records were not correct.
When taxed with paragraph 15(d) of Ms Goonan’s first affidavit (being a record of the phone calls that took place on the visit 19 August 2014) Mr Taleb said he knew the books were not there. He said he was shocked how she found the books. He said he thought Jamal took the books and may have had help. The book left the shop and came back.
When it was put to him that the “Jamal” referred to in the records in March 2012 and April 2012 (Mr Kazemi’s first affidavit pages 15 - 16) was Mr Kazemi, Mr Taleb denied this and said “Jamal” was Jamal Habashi. When he was referred to page 17 of the affidavit being a record of $10 per hour Mr Taleb denied this and said it was not his handwriting.
Mr Jamal confirmed that he was the Eddie referred to in Mr Wong’s affidavit. Counsel cross-examined Mr Taleb about Mr Wong’s version of the visit on 24 April 2012. Mr Taleb said that Mr Wong asked him what he was paying and he said $16 and $17 per hour. He told Mr Wong he was struggling. Ms Goonan told him it was not enough, but did not say how much and Mr Wong said nothing.
Mr Taleb was cross-examined about the letter to him dated 17 May 2012 from Alison Read. He said he could not remember the letter and was not in the shop. There was another shop. He might have been overseas. He said he fixed the problem (relating to a Mr Abdallah) but had not received the letter.
In re-examination nothing of any moment, in my view, emerged.
The Evidence of Fatoum Souki
Ms Souki is a solicitor. She has acted for the respondents. She confirmed that some documents were produced in response to the NTP dated 29 August 2014. These were the three pages annexed to Mr Taleb’s affidavit. The only other documents were the employer records which were with the FWO.
She confirmed that the book was returned and assumed that it had been received pursuant to the postal receipt dated 8 September 2014.
When cross-examined Ms Souki confirmed receiving an email from Ms Goonan on 29 September 2014 (page 342 to Ms Goonan’s first affidavit) alleging that the information provided was incomplete. She confirmed that she was not sure whether anything else was sent but that she had told Ms Goonan on several other occasions that other than the book there were no other documents.
The Credit of the Primary Witnesses
It is sufficient for these purposes to say that Ms Goonan in particular was a careful and considered witness. Her evidence was obviously truthful. It was given with conviction and I accept it. Likewise, no challenge of any moment was made to the evidence of Mr Stella and the other FWI staff were not the subject of cross-examination.
Mr Kazemi was by no means an entirely satisfactory witness. Some of his evidence was wholly unbelievable. His assertion that he was not sure if he had known he had worked in May runs entirely inconsistently with the knowledge he must have had that he was in Pakistan from May to October 2012. Likewise, his endeavours to explain the clearly fictitious records dealing with the purported May employment were wholly unsatisfactory and unbelievable. I am prepared to, and do accept, he is not good with dates. This is all the more difficult given his limited command of Roman script. Nonetheless, he was on occasions unresponsive to the questions put and tended to answer questions by answering questions of his own.
Nonetheless, Mr Kazemi, despite these flaws, did answer a number of matters, in my opinion, reasonably well. Some of his answers, as I shall record when I make findings as to facts shortly, were, in my view, believable.
Mr Taleb was a less impressive witness than Mr Kazemi. Like Mr Kazemi he was often unresponsive to the questions put. Some of his answers were wholly unbelievable. I would refer by way of illustration to the answer that the employer’s time records were simply kept so that workers knew that they were being watched. They were obviously kept as an endeavour to record accurately times actually worked.
Under cross-examination Mr Taleb presented as exceptionally uncooperative and aggressive. He struck me as being a formidable and overbearing man. He manifestly failed to answer questions responsively and his disputation of the clearly accurate contemporaneous file notes made by the FWO officers was highly unimpressive.
Findings on the Facts
The first, and important, issue is whether Mr Kazemi worked at all for the first respondent in the earlier part of 2012. It is important to remember that the dispute between the two primary players is a very stark one. Either Mr Kazemi worked for the first respondent or he did not.
The position of the respondents, despite counsel’s laudable efforts to qualify them, is only too clear. It is put by way of direct assertion that in effect Mr Kazemi has fabricated all his claims of earlier employment and fabricated all the records he has created that are said to support it. In substance it accuses Mr Kazemi of fraudulently inventing these records with a view to gaining a financial advantage by this deception. It is a finding which, of its nature, attracts the operation of s.140 of the Evidence Act.
It is further put by way of inference that Mr Kazemi may have, in some fashion, colluded with an unidentified female employee of the first respondent in some fashion to create false documentation attributable to the respondents by stealing, and then returning, the employer records that were ultimately provided.
While, as I say, Mr Kazemi was by no means a wholly impressive witness, I prefer his evidence to that of Mr Taleb. That is partly because that was simply the impression I got when they were giving their evidence. However, there is more to it than that. Ms Goonan compared the employer records for the period 19 March until April 2012 (she in fact compared through till the records ceased in November 2013). The copies of the records are at tab 6. They were plainly not created by Mr Kazemi. That is partly because he was simply not there during the relevant periods and partly because he could not write in English sufficiently to do so. These are plainly, contrary to Mr Taleb’s denials, records of the times employees actually worked and, in many instances, the amounts that they were paid. As Ms Goonan’s tab 13 shows, the records kept by Mr Kazemi are essentially coextensive (to the extent that they overlap) with the employer’s time records.
I further accept the matters in Ms Goonan’s affidavit as to the consistency between some of the amounts paid and the amounts recorded in both employer and Kazemi records.
In the ultimate, I am persuaded that Mr Kazemi did indeed work the hours in the earlier employment period that he said he did. His account of the matter is inherently credible and is consistent with the personality and demeanour of Mr Taleb as I observed it. I do not accept the proposition which, in the ultimate, is central to the respondent’s position, namely that Mr Kazemi has, as a result of a dispute with another family member, simply maliciously and fraudulently invented his story.
I also do not accept that Mr Kazemi’s actions arise out of some dispute over the sale of a car. I note that the alleged recipient of the car as put by the second respondent has varied from a cousin to Mr Taleb’s brother from time to time.
Accordingly, in my view, and on the materials put by Ms Goonan (not themselves, as I understand it, the subject of challenges to methodology) Mr Taleb is entitled to be paid the underpaid wages that he was not paid.
In this regard I should then make it plain that I accept that Mr Kazemi was paid $10 an hour up to a maximum of $120 per day. That was his evidence and I accept it. It is also, as Ms Goonan points out, consistent with such records of the first respondent as have been provided.
It is clear that Mr Kazemi was never paid overtime or penalty rates. He is therefore entitled to the appropriate award payments in that regard.
Superannuation is an award entitlement and was plainly never paid. I do not accept Mr Taleb’s assertion that he asked Mr Kazemi for tax file details and the like and was not given them. All the evidence points to this closely knit family run business being conducted on a very ad hoc and undocumented basis. The style of the employer records is incomplete and chaotic. No payslips were ever provided. This was not a properly and lawfully run business. It was conducted in plain breach of a number of workplace regulations.
Likewise, I do not accept that Mr Kazemi, like other employees, was provided with meal breaks as required by the award. Working the very long hours that he did he must, of course, have had some time off. He would have dropped from exhaustion otherwise. It is one thing to say that he may have been permitted to take a short amount of time here and there as work permitted. This is not what the award requires, and plainly these breaches are established also.
The next matter to be considered is the payment of annual leave on termination. This plainly did not happen. It is not necessary to say more. The employer complains that on two occasions (both in what might be described as the second period of employment) the applicant simply left without notice. I do not accept Mr Taleb’s evidence to that effect. I accept that of Mr Kazemi. Furthermore, if Mr Kazemi had left without notice as Mr Taleb says he did in January 2013 there is no reason to suppose that Mr Taleb would have forgiven this misconduct and permitted yet a further period of employment in April of that year.
The next matter to consider is the failure to keep the records prescribed by the Fair Work Regulations 2009. This matter is not seriously in issue, and, likewise, the failure to issue payslips is also not open to challenge.
The next matter is the failure to comply with the NTP. By the time the case was over the FWO very sensibly conceded that the failure to produce the time records in response to the NTP was not pressed. In the circumstances, in my opinion, that is reasonable. Nonetheless, I accept the submission from the FWO that the first respondent did on the evidence have records of amounts paid and these were not produced, and so that breach is also made out.
The final question is the matter of the accessorial liability of the second respondent.
Counsel in closing submissions conceded that in relation to accessorial liability to breaches of an award it would be necessary to show that the second respondent knew of the existence of the award, whereas contraventions of the Act only requires knowledge of what had actually occurred. It was submitted that in the first period of employment Mr Kazemi was not paid which was a breach of the FW Act. It was further put that from April 2012 onwards Mr Taleb knew, or was wilfully blind if he did not, of the existence of the award. He knew of the rates to be paid and weekend penalties. It was put that Mr Taleb was simply shutting his eyes to the obvious if he pretended otherwise.
Counsel for Mr Taleb emphasised the matters at paragraph 24 of his affidavit, which attributed the dispute to the car incident which I have dealt with already.
In my opinion, it is quite clear that the second respondent was involved within the meaning of s.550 of the FW Act in the contraventions of the Act alleged against him. He well knew that Mr Kazemi had not been paid his wages in full. He well knew that he had not been paid superannuation. He well knew that Mr Kazemi was not paid his annual leave upon cessation of employment.
He also well knew that the respondent did not issue payslips and that its record keeping was incomplete. It was he who authorised Ms Goonan to take possession of his time records. He knew perfectly well what they were. His assertions that, in effect, they were nothing to do with him are simply not to be accepted.
Insofar as contraventions of the award are concerned, it is important to remember what was said by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] – [178]:
176. Although the general principles relating to accessorial liability are settled, their application in a case such
as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount
to a crime: Yorke v Lucas at 667. Although it is necessary
for the person to be an intentional participant and to have knowledge of the matters or things constituting
the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. The Full Court
in Rafferty v Madgwicks [2012] FCAFC 37; (2012) 287 ALR 437 summarised the position in this respect at [254]:
[W]hile the identification of the elements of a contravention requires careful legal analysis, “[i]n order to know
the essential facts, and thus satisfy s 75B(1) … and like provisions, it is not necessary to know those facts
are capable of characterisation in the language of the statute” … This is another aspect of the longstanding principle that it is not necessary for a person to “recognise” the contravention as such, or explicitly to think about
the relevant legislation that their actions may contravene …
177. Actual, rather than imputed, knowledge is required.
So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ:
… [Offences of aiding and abetting and counselling
and procuring] require intentional participation in a crime by lending assistance or encouragement. They do not,
of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence
and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent
if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging
is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such,
but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which
he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission
of an offence which formed no part of his design. Intent
is required and it is an intent which must be based upon knowledge or belief of the necessary facts …
178. The notion of being “knowingly concerned”
in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which implicates or involves him or her in the contravention so that there can be a “practical connection between” the person and the contravention.” (authorities omitted).
In applying that test to the facts of this matter, in my opinion it cannot be said that Mr Taleb was involved within the meaning of s.550 of the FW Act with contraventions of the award itself. The evidence does not establish the requisite knowledge of the Award on Mr Taleb’s part.
Conclusion
I have not traversed in terms the 13 contraventions alleged against the first respondent and the five alleged against the second respondent. I would hope that these reasons are sufficiently clear to indicate which of those have been established and which not. I will invite the FWO to prepare a schedule of proposed orders that give effect to these reasons for judgment and will hear the parties in the event that there is any controversy arising from the proposed draft.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 24 November 2016
Key Legal Topics
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Employment Law
Legal Concepts
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Breach
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Penalty
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