Hornyak v Sims Integrated Solutions Pty Ltd and Ors
[2020] FCCA 1764
•3 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HORNYAK v SIMS INTEGRATED SOLUTIONS PTY LTD & ORS | [2020] FCCA 1764 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – modern award – contraventions – accessories to contraventions – compensation. INDUSTRIAL LAW – Casual employment governed by the Fair Work Act 2009 and a modern award – contract of employment – whether terms of employment agreement too uncertain to amount to a contract. |
| Legislation: Fair Work Act 2009 (Cth), ss.11, 13, 14, 45, 323, 535, 539 545, 546, 547, 550. |
| Reed v Blue Line Cruises Limited (1996) 73 IR 420 WorkPac Pty Ltd v Skene (2018) 264 FCR 536 WorkPac Pty Ltd v Rossato [2020] FCAFC 84 Accident Compensation Commission v Odco Pty Ltd (1990) 64 ALJR 606 Shahid v Australasian College of Dermatologists (2008) 168 FCR 46 Nelson v Nelson (1995) 184 CLR 538 Miller v Miller (2011) 242 CLR 446 Equuscorp Pty Ltd v Haxton (2012) Yorke v Lucas (1985) 158 CLR 661 Giorgianni v The Queen (1985) 156 CLR 473 Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267 Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302 Rural Press v Australian Competition and Consumer Commission (2002) 118 FCR 236 Heydon v NRMA Ltd (2000) 51 NSWLR 1 Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 |
| Applicant: | ATTILA HORNYAK |
| First Respondent: | SIMS INTEGRATED SOLUTIONS PTY LTD ACN 163 399 764 |
| Second Respondent: | IMRE HORNYAK |
| Third Respondent: | CATHERINE HORNYAK |
| File Number: | SYG 3733 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing date: | 30-31 January, 20 February and 4 May 2018 |
| Date of Last Submission: | 4 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.Gerard |
| Solicitors for the Applicant: | Schofield King Lawyers |
| Counsel for the Respondent: | Ms L.Andelman |
| Solicitors for the Respondent: | Turner Freeman Lawyers |
THE COURT DECLARES THAT
The first respondent contravened section 45 of the Fair Work Act 2009 by failing to pay the applicant wages in accordance with the Electrical, Electronic and Communications Contracting Award 2010 or at all.
The first respondent contravened section 45 of the Fair Work Act 2009 by failing to make superannuation contributions on the applicant’s behalf in accordance with the Electrical, Electronic and Communications Contracting Award 2010.
The first respondent contravened section 323 of the Fair Work Act 2009 by failing to pay the applicant wages in full at least monthly for work performed during his employment with it.
The first respondent contravened section 535 of the Fair Work Act 2009 by failing to maintain or keep employee records prescribed by the Fair Work Regulations 2009.
The second respondent was involved in the first respondent's contraventions of sections 45, 323 and 535 of the Fair Work Act 2009 and so is taken to have also contravened those provisions.
THE COURT ORDERS THAT
The first respondent pay the applicant compensation in a sum calculated in accordance with the reasons for judgment in this proceeding.
The first respondent pay the applicant interest on the compensation amount, such interest to be calculated in accordance with section 547(3) of the Fair Work Act 2009 and rule 26.01 of the Federal Circuit Court Rules 2001.
In the event that the first respondent fails to pay, within 28 days of an order quantifying the compensation and interest payable to the applicant or such longer time as may be agreed or ordered, the amounts referred to in orders 1 or 2 or any part of them, the second respondent is, within 28 days of the expiry of that period, to pay to the applicant the amount or amounts outstanding.
Within 28 days the parties bring in a draft minute of order quantifying the compensation and interest the first respondent, or in default the second respondent, is to pay the applicant.
The application be dismissed as against the third respondent.
The matter be listed for directions on 24 July 2020.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3733 of 2016
| ATTILA HORNYAK |
Applicant
And
| SIMS INTEGRATED SOLUTIONS PTY LTD ACN 163 399 764 |
First Respondent
| IMRE HORNYAK |
Second Respondent
| CATHERINE HORNYAK |
Third Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The first respondent (“SIMS Integrated”) operates a business that specialises in the installation of electronic security systems. The second respondent (“Imre”) is the director of SIMS Integrated and the half-brother of the applicant (“Attila”). The third respondent (“Cathy”) is Imre’s wife and served as director of SIMS Integrated.
Attila alleged that between 1 May 2013 and 26 June 2015 SIMS Integrated employed him on a casual basis under the Electrical, Electronic and Communications Contracting Award 2010 (“Award”) as an “Electrical Worker Grade 5”.
Attila alleged that SIMS Integrated failed to pay him minimum wages, loading, allowances and overtime and also failed to make superannuation contributions on his behalf. He alleged that the Award’s of the provisions dealing with those matters had been contravened.
With respect to his claim that he was an employee of SIMS Integrated, Attila pointed to the following:
a)SIMS Integrated required him to undertake induction processes at various work locations;
b)he was provided with a work uniform by SIMS Integrated;
c)Imre would regularly send him text messages containing locations and commencement times for work he was to perform for SIMS Integrated;
d)he was directed by Imre to provide bank details to Cathy for wages payments to be processed;
e)SIMS Integrated provided him with passes to enter and work at various locations.
Attila alleged that Imre and Cathy were involved in SIMS Integrated’s contraventions of the Fair Work Act 2009 (“FW Act”) and were liable as accessories for its contraventions. He alleged that at all material times Imre and Cathy were aware that he was performing work for SIMS Integrated and was not being paid wages or receiving superannuation contributions in relation to that work. He further alleged that from 26 June 2015 Imre and Cathy were aware that he was pursuing amounts owed to him for work performed for SIMS Integrated during the employment.
The respondents denied the allegation that Attila had been employed by SIMS Integrated, had performed any work for it and that he was owed amounts by them. They alleged that Attila asked Imre to train him and said that his demands for money related to a request for a loan. Imre claimed that during the alleged period of employment, he and Attila had had a close relationship as half-brothers and although Attila attended SIMS Integrated’s work locations to keep Imre company while he worked, he did not perform any work for SIMS Integrated on those occasions.
Relief Sought
Declarations
Attila sought declarations that SIMS Integrated had:
a)contravened s.45 of the FW Act;
i)by contravening the Award by failing to pay him wages and allowances payable under the Award; and
ii)by failing to make superannuation contributions on his behalf as required by the Award;
b)breached s.323 of the FW Act by not paying him his wages in full at least monthly; and
c)breached s.535 of the FW Act by failing to maintain or keep prescribed employee records.
Attila also sought declarations that Imre and Cathy were each involved, for the purposes of s.550 of the FW Act, in SIMS Integrated’s alleged contraventions.
Compensation
Attila sought the following financial compensation from SIMS Integrated:
a)$67,237.18 for unpaid wages;
b)$4,919.05 for unpaid superannuation contributions, to be paid into his nominated superannuation fund; and
c)interest.
Attila also sought compensation from Imre and Cathy to the extent that the amounts owed to him were not paid by SIMS Integrated or, in Cathy’s case, by Imre.
Pecuniary Penalties
Attila sought pecuniary penalties against SIMS Integrated for its contraventions of ss.45 and 323 of the FW Act.
He also sought the imposition of pecuniary penalties on Imre and Cathy for their involvement in those contraventions.
Issues to be determined
The issues to be decided are:
a)whether Attila was an employee of SIMS Integrated;
b)if Attila was an employee of SIMS Integrated, whether Attila was covered by the Award;
c)if Attila was covered by the Award, whether his classification under the Award was at all relevant times “Electrical Worker Grade 5” or some other classification;
d)whether SIMS Integrated breached the Award in failing to pay Attila as alleged or in any particular respect; and
e)if contraventions of the FW Act and the Award occurred, whether the Imre and Cathy are liable as accessories to those contraventions.
FAIR WORK ACT
Employment
Section 11 of the FW Act defines employer and employee as having their “ordinary meanings”. Section 13 relevantly defines a “national system employee” as “an individual” who is “employed, or usually employed” by a “national system employer” as defined in s.14. A constitutional corporation is a national system employer.
Payment of wages
Division 2 of pt.2-9 of FW Act contains provisions dealing with the payment of wages. Relevantly, s.323 provides:
323 Method and frequency of payment
(1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b)in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
…
Protection of award entitlements
The Award is a Modern Award. Section 45 of the FW Act provides that a person must not contravene a term of a Modern Award.
Award provision - coverage
The Award covers employers in the electrical services industry and their employees in the various classifications listed in cl.16 and sch.B to that award.
For the purposes of the Award, cl.B.2.5 of its sch.B relevantly defines an Electrical Worker in the following terms:
B.2.5Electrical worker grade 5
(a)An Electrical worker grade 5 is employed to use the skills acquired through the training specified below and is an employee who:
(i)holds a trade certificate or tradesperson’s rights certificate in an electrical trade; or
(ii)holds an AQF Certificate Level 3 in Electrotechnology in one of the following:
● systems electrician; or
● assembly and servicing; or
(iii)has successfully completed an appropriate trade course or who has otherwise reached an equivalent standard of skills and knowledge in communications/electronics; or
(iv)holds an AQF Certificate Level 3 in Electrotechnology in one of the following:
● building services;
● communications;
● computer systems;
● data communications;
● entertainment and servicing;
● scanning; or
(v)has successfully completed an appropriate instrumentation trade course; or an AQF Certificate Level 3 in Electrotechnology Instrumentation; or
(vi)holds an appropriate electrical/refrigeration/air-conditioning trade certificate; or an AQF Certificate Level 3 in Electrotechnology Refrigeration and Air-conditioning; or
(vii)has successfully completed an appropriate trade course in linework or cable jointing, or an AQF Certificate Level 3 in Transmission Powerline or ESI Distribution Powerline; or has otherwise reached an equivalent standard of skills and knowledge.
…
Award provisions - minimum wages and related allowances
The minimum weekly wages for a Grade 5 Electrical Worker are found in cl.16 of the Award as it stands from time to time. Clause 17.2(a) of the Award provides for an industry allowance to be paid as a percentage of the standard weekly rate as compensation for difficulties and inconveniences associated with on–site work. Clause 17.2(b) provides for payment of a tool allowance to electrical workers at grade 5 and beyond. Clause 16.3 of the Award provides that there allowances are to be paid as an “all-purpose rate” which is to be used when calculating payments for overtime, paid leave, leave loadings and public holidays.
Clause 10.3 of the Award deals with casual employment and relevantly provides:
10.3 Casual employment
…
(b)For each hour worked, a casual employee will be paid no less than 1/38th of the all-purpose weekly wage rate of pay for their classification in clause 16—Classifications and minimum wages, plus a casual loading of 25%.
…
By virtue of these provisions, an Electrical worker grade 5 was entitled at the relevant times, to the following weekly wages and allowances:
Period Minimum wage per hour Industry Allowance per hour Tool Allowance per hour Casual loading per hour the pay period commencing on or after 1 July 2010 $17.46 0.65 0.48 4.37 the pay period commencing on or after 1 July 2011 $18.06 0.67 0.48 4.52 the pay period commencing on or after 1 July 2012 $18.58 0.69 0.48 4.65 the pay period commencing on or after 1 July 2013 $19.07 0.71 0.48 4.77 the pay period commencing on or after 1 July 2014 $19.64 0.73 0.48 4.91
Award provision – payment of wages
Clause 22 of the Award relevantly provides:
22. Payment of wages
22.1 Period of payment
(a) Wages, including overtime, must be paid weekly, either:
(i)according to the actual ordinary hours worked each week; or
(ii)according to the average number of ordinary hours worked each week.
(b)Wages may be paid weekly or fortnightly by agreement between the employer and the majority of employees. Agreement in this respect may also be reached between the employer and an individual employee.
…
Award provision - superannuation
Clause 23.2 of the Award provides:
23.2 Employer contributions
An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
Award provision - overtime
Clause 26 of the Award relevantly provides:
26.Overtime
26.1Payment for working overtime
(a)For all work done outside ordinary hours, the rates of pay will be time and a half for the first two hours and double time thereafter.
(b)Except as provided in clause 27.4, in computing overtime each day’s work will stand alone.
Method and frequency of payment
Section 323 of the FW Act relevantly provides:
323 Method and frequency of payment
(1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a)in full (except as provided by section 324); and
(b)in money by one, or a combination, of the methods referred to in subsection (2); and
(c)at least monthly.
…
Records and pay slips
Section 535 of the FW Act provides:
535 Employer obligations in relation to employee records
(1)An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
(2)The records must:
(a)if a form is prescribed by the regulations—be in that form; and
(b)include any information prescribed by the regulations.
(3)The regulations may provide for the inspection of those records.
Part 3-6 of the Fair Work Regulations 2009 (“FW Regulations”) sets out employer obligations in relation to employee records. The regulations in that part provide that employers are to keep records of the particulars of an employee’s employment, pay, overtime, leave and other matters including, relevantly, superannuation contributions paid in respect of the employee. Regulation 3.42 provides that employers are to make copies of an employee’s records available for inspection by that employee.
Compensation
Section 539(2) of the FW Act provides that ss.45, 323(1) and 535(1) and (2) are civil remedy provisions.
Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of a civil remedy provision.
Accessorial liability
Section 550 of the FW Act provides:
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
EVIDENCE
Applicant
Attila Hornyak
Attila deposed that he held qualifications in the sale, installation, maintenance, repair and service of security equipment and, at the time of hearing, had worked in security businesses for over 17 years. He deposed that before working for SIMS Integrated, he had been involved in three security businesses at a technical and operational level, H & H Security Pty Ltd, H & H Security Australia Pty Ltd and H & H Security K9 Unit Pty Ltd, and had been a director of H & H Security Australia since 1 April 2012. He further deposed that he had performed managerial, technical and other roles for H & H K9 Unit Pty Ltd between 2010 and 2012 and for H & H Security Australia (“H & H Security”) since early 2012. Attila described the technical roles he held with these companies as the ‘electrical side of security’. He stated that these technical roles included attending sites for electrical services, installing cameras, rub cables, programming alarm systems, setting up sensors and setting up alarm systems.
Attila stated that H & H Security would employ five to twenty staff at any one time and that as director he had engaged independent contractors to perform the same work undertaken by his employees. He said that H & H had two or three staff at its head office in Austral between 2013 and 2015. Attila stated that SIMS Security Systems, Imre’s previous company, had subcontracted some work involving alarm responses to H & H Security.
Applicant’s qualifications
Attila stated that in the period between 2013 and 2015 he held security industry licences 1A, B, C, D, E and 2B, E and F. Attila annexed to his first affidavit a copy of his security licence at this time and said that it had been issued in 2011. He stated that that licence accurately set out the classes of licence he held in 2011, when that licence had been issued, and deposed that it had been valid until 2016. Attila conceded that in that period he had not held a class 2C security licence, which concerned selling, installing, maintaining, repairing and servicing security equipment but deposed that from 2006 onwards he held class 2E and class 2F licences which licensed the same work as a class 2C licence in that they covered the selling, installing, maintaining, repairing or servicing of security equipment. He stated that this was because in 2012, changes were made to the New South Wales security licencing regime whereby the class 2E and 2F licences were incorporated within the class 2C licence. Attila stated that the security industry did not enforce this change until a licence was due for renewal.
Attila deposed that in addition to his security licences, he held a number of certificates in relation to security and in relation to manual security work including guarding, guard dog team and crowd control.
Employment arrangements
Attila deposed that in April 2013 he and Imre had had a conversation, in the presence of Cathy, to the following effect:
Imre:I have to let Steve go and I can’t afford to put too many staff on. But some of my jobs require two people. Would you be willing to work for me as a technician when I need you for these jobs?
Attila:Yes I would be happy to help but I can’t dedicate all my time to working for you. I need notice of when you need me so I can manage my own business. I won’t ever be able to work for long periods like two full weeks in a row because I’ll need to work for my own business.
Imre:It will be cheaper for me to use you than another full-time employee because I will only have to pay you when I need you to work. …
“Steve” was Imre’s employed technician Steve Boland. Attila agreed that he and Imre had not discussed the rate he would be paid, but said he had assumed that it would at least be in accordance with the Award because that was the law. The same considerations applied to overtime.
Attila deposed that he had generally noted his diary with “Not Available” or “NA” to record in advance when he was going to be working for SIMS Integrated. He said he did that so staff at his mother’s boarding kennel and at H & H Security would know when he would not be present.
Attila deposed that he performed his first shift for SIMS Integrated on 1 May 2013 and that not long after Imre asked for his bank details, which he provided. Later they talked about how he would be paid. In that later conversation, Imre proposed that Attila accompany him and his family on an overseas holiday and suggested that Attila’s wages be put aside for that purpose. Attila agreed because he was already earning well enough from his own security business and he trusted Imre.
Attila deposed that he and Imre would sometime send text messages concerning his work for SIMS Integrated, such as:
a)a message sent by Imre on 2 May 2014 asking Attila to help him with “another power shutdown sat 17th this month”, which he deposed related to work on the M7;
b)a message sent by Imre on 8 April 2015;
… have to do colgate maintenance next mon tues and possibly wed;
c)a message conversation on 17 June 2015:
Imre:Running real late. Leaving home in about 15
Attila: So are we working at villawood
Imre: Yes…;
d)a message sent by Imre on 19 June 2015:
Leavin home about 9 for colgate;
e)a message sent by Attila on 22 June 2015 at 6.20am:
Stuck on M7 truck on fire.
However, he agreed that no text in evidence recorded Imre directing him to attend work.
Attila deposed that throughout his employment Imre required him to wear a uniform. In his affidavits Attila alleged that Imre issued him with a uniform on a number of occasions including the following:
a)on the morning of his first shift with SIMS Integrated, Imre provided him with a uniform and instructed him to wear it;
b)he was issued with cargo pants which were required to have a reflective strip across the leg for work performed on the M7 site;
c)Imre purchased two King Gee shirts for Attila after Attila indicated that his existing shirts had faded; and
d)in or around early 2014, he was provided with a uniform bearing SIMS Integrated embroidery.
Induction training and site passes
Attila deposed that during his employment SIMS Integrated and Imre required him to undertake induction processes at various work locations including the Sanitarium and M7 sites. On 4 June 2015 he received an email from Imre enclosing and asking him to read several documents containing policies relevant to working on the M7.
Attila further claimed that Cathy and SIMS Integrated’s administrative assistant, Eileen Angelo, made arrangements on behalf of SIMS Integrated for him to undertake certain of these induction processes. He deposed that on 6 June 2015 he was included in an email sent by Ms Angelo to the M7 motorway attaching his induction application form which included an employee declaration signed by Ms Angelo on behalf of SIMS Integrated. In the email of 6 June 2015 which was headed “SIMS-Inductee Applications for Wednesday 10/6/2015” Ms Angelo wrote;
Please find attached the application form of two of our staff to attend on the 10/06/2015.
Duties performed
Attila deposed that he worked for SIMS Integrated, with Imre and on his own, at various locations. He deposed that the main locations were Colgate at Villawood, the M7 Motorway (“M7”) and Sanitarium on the Central Coast, two hours’ drive from his home, where most of his work was performed. He claimed to have also worked for SIMS Integrated at smaller locations and residential premises.
On any day Attila worked for SIMS Integrated, he performed at least six hours’ work.
The duties that Attila deposed he performed for SIMS Integrated relevantly included:
a)cabling of electrical systems;
b)CCTV installation;
c)conduiting;
d)installing, mounting and testing of cameras;
e)installation of RJ45 plugs;
f)terminating cables;
g)crimping BNC connectors;
h)installing sensors;
i)mounting panels;
j)testing security systems; and
k)manual handling of equipment.
Attila deposed that he was already a skilled technician and Imre did not train him in any of the work he performed for SIMS Integrated.
Attila denied Imre’s claims that he was not interested in any of the electrical work Imre performed. He deposed that he was “eager” to work with Imre because he worked with a particular, named access control system which Attila understood had a good reputation and with which he wanted to become familiar. Attila stated that he was not certified to install or maintain this system and that working with Imre would provide him with experience in its programing, although he was already familiar with the manual work involved in the system as systems were generally the same in this regard. He stated that he was certified in more commonly used systems, of which he gave examples in his oral evidence.
Attila denied Imre’s claims that he attended work sites to “hang out” with the him and stated that:
Every time I went to site with him it was to engage in work.
Enquiries to the respondents about payment
Attila deposed that on 25 June 2015 he asked Imre to calculate how much he was owed for the work he had done for SIMS Integrated and to transfer that amount to him. He deposed that he was planning some expensive surgery. He deposed that Imre told him he should not be using the money to pay bills and said to him words in the effect of:
… I’ll get Cath to do some sums for you.
He deposed that shortly after this conversation he received a text message from Imre asking for his bank details saying:
Give me your bank details cath will deposit $ after shr knows (error in original).
Attila said that shortly after that 25 June 2015 conversation, he received a text message from Imre which read:
Sorry little brother. Understand if you don’t want to hang and help from here on.
He deposed that after 26 June 2015 he received a number of text messages from Imre asking him to work, which he refused. On 13 July 2015 the following text message conversation took place:
Imre: … Just been told I’m doing a m7 cabinet tomorrow. Woodstock ave. are you up?...
Attila:I can’t busy with work for the next few weeks.
Imre:Ok thx [sic] Will find others
Attila:OK
Imre:Are you still going to do stuff with me or not interested?
Attila:I’ll help you where ever I can, but I am just swamped at the moment.
Attila deposed that a couple of days later he received the following correspondence from Ms Angelo:
a)an email dated 15 July 2015 which read:
Can we get some bank account details from you so if we need to square up any payments for work completed we have them on file.
b)an email dated 29 July 2015 confirming receipt of his account details.
Relationship with Imre
Attila deposed that he and Imre became closer after the death of their father in 2010 and subsequently travelled overseas together. Attila rejected the respondents’ claim that he spent a large amount of time at Imre’s home or that he had ever asked Imre to lend him money. In particular, he rejected the suggestion that Imre’s text of 25 June 2015 about the deposit of funds by Cathy was a reference to a loan he had asked of Imre.
Attila deposed that on or about 30 July 2015, he and his mother received from the solicitors acting for Imre a letter about a separate, estate issue which damaged the relationship between them. He stated that he found the letter threatening in that it suggested he and his mother should sell the property in which they lived. However, Attila denied Imre’s evidence that a heated conversation had taken place between them in relation to the letter
Deterioration in relationship
Attila stated that in 2015 Imre expressed interest in setting up a new business project involving a four-wheel drive park and camping showers and asked Attila to undertake research into trade shows. Attila deposed that he told Imre that he was not interested in the project. On 23 June 2015 Attila received a text message from Imre about how to use Excel to undertake the research.
On 25 June 2015 Imre sent him the text quoted earlier at [49] which said:
Sorry little brother. Understand if you don’t want to hang and help from here on.
Attila rejected the suggestion that this text reflected his lack of interest in Imre’s proposed new business venture, saying it reflected the latter’s attitude to his request to be paid what he was owed. Attila also rejected the further suggestion that this text reflected Imre’s recognition that he, Attila, was upset about the proceedings foreshadowed against Attila’s mother regarding their father’s estate. Attila said that Imre’s solicitor’s letter had not arrived at that stage and he was unaware of any antecedent conversations.
Attila was taken to the text message that Imre sent on 13 July 2015 which said:
…Just been told I’m doing an m7 cabinet tomorrow. Woodstock Ave. are you up? (errors in original)
and said that this was a query regarding whether he was free to accompany Imre on that job. Attila rejected the suggestion that Imre’s response to his unavailability:
Ok thx Will find others
was a reference to the new business venture.
He rejected the suggestion that Imre was referring to that project when he continued that exchange saying:
Are you still going to do stuff with me or not interested?
Attila said it was a reference to work at M7, Sanitarium, Colgate and other jobs.
Correspondence regarding payment received from the respondents
Attila and Ms Angelo exchanged emails dated 15 July 2015, 22 July 2015 and 29 July 2015 in relation to his bank details and the money he said was owed to him. On 15 September 2015 he sent a letter of demand to SIMS Integrated which asserted that he had worked for it since April 2013 and was owed wages totalling $54,000 for the period 19 April 2013 to 27 June 2013. The letter calculated the wages claimed in the following terms:
3 days per week x 9 hrs per day x 80 weeks x $25.00 per hour.
The letter of 15 September 2015 also claimed superannuation contributions for the periods 19 April 2013 - June 2014 and 1 July 2014 - 27 June 2015 in the amount of $5,062.50. Attila deposed that he did not receive a response to that letter.
On 4 December 2015 Attila sent an email to the respondents and to Ms Angelo seeking records for work he performed between 19 April 2013 and July 2015. Attila deposed that later that day Imre responded by text message which read:
Hahaha you’re funny JH. Try harder.
On 17 November 2016, Attila’s solicitors sent a letter of demand to SIMS Integrated requesting copies of his employment records. Annexed to the letter of 17 November 2016 were;
a)a request for employment records signed by Attila and dated 7 November 2016; and
b)a spreadsheet prepared by Attila and his legal representative identifying amounts owed under the relevant award.
Involvement of Cathy
Attila alleged that Cathy was involved in the daily running of the business and performed duties such as bookkeeping, emails, correspondence with clients, inductions, payroll and answering the work phone.
Stephen Crawford
Stephen Crawford was the agent for Attila’s solicitors. He annexed to his affidavit of 30 August 2017 several bundles of redacted documents produced by the respondents’ solicitors to Attila’s solicitors. Mr Crawford also annexed to his affidavit several bundles of corresponding unredacted documents produced on subpoena by SIMS Integrated clients.
Mr Crawford also deposed that he had attended the offices of the respondents’ solicitors and inspected communications documents to which access had been granted. He had copies made of ones which he deposed were relevant although the criteria for relevance were not identified. Copies of those documents were annexed to his affidavit.
RESPONDENTS’ EVIDENCE
Imre Hornyak
Imre deposed that SIMS Integrated installed, developed and managed audio-visual systems and integrated security systems for clients including Sanitarium, Colgate and Westlink Services Propriety Limited (the M7). He deposed that prior to establishing SIMS Integrated, he had owned and worked for several security businesses and was trained as an electronic security systems engineer. Imre deposed that he was trained and certified to the highest level in the main security systems with which he worked and that such training is a necessity for SIMS Integrated’s manufacturers and contracts.
Establishment of SIMS Integrated
Imre deposed that Cathy was the first director and secretary of SIMS Integrated and that he became a director on 13 November 2015, and later secretary. He stated that he regarded SIMS Integrated as his company and its business as his business. He agreed that he was the controlling mind of the business in April 2013 and decision-maker with respect to:
a)the clients for whom SIMS Integrated would work;
b)the kind of work performed for those clients;
c)the work SIMS Integrated would quote for; and
d)the price charged for SIMS Integrated’s work.
He also stated that it was he who dealt directly with SIMS Integrated clients and made all decisions regarding the staffing of SIMS Integrated. He stated that at the time SIMS Integrated was established in April 2013 he had been aware of the existence of the Award.
Imre gave evidence that Cathy had no qualifications relevant to the technical side of SIMS Integrated’s security work, her main task having been the preparation and management of invoices. He stated that her role had also involved the maintenance and filing of physical paper records and the payments of suppliers. Imre said he never prepared invoices for SIMS Integrated; they were prepared by Cathy and occasionally by his sister, Ildiko.
Imre deposed that when SIMS Integrated was established it had one employee, Steven Boland, who had been employed by Imre’s earlier security business, SIMS Security Systems Pty Ltd, until administrators were appointed to it in 2012. Imre deposed that Mr Boland’s qualifications were similar to his own and that once he resigned, SIMS Integrated did not hire any other technical employees although it did hire specialised contractors when necessary. He agreed that he had been aware that Mr Boland had had to be paid entitlements at least equal to those prescribed under the Award.
Relationship with Attila
Imre deposed that he and Attila formed a close relationship following their father’s death in 2010 and would regularly spend time together, generally five days out of every seven, even if one of them was working. Around the time SIMS Integrated was established, he and Attila were spending a significant amount of time together, including at their respective work sites. Imre deposed that Attila had no technical experience in electronic security systems and he had often helped Attila on alarm and “CCTV” jobs as neither Attila nor his staff had the necessary skills. However, after a point he was no longer able to assist and gave Attila the details of a sub-contractor who could. Imre deposed that he provided Attila with technical training but the latter showed no interest in learning, even though he asked for that help.
Imre denied that Attila had ever been an SIMS Integrated employee or contractor. He deposed that while Attila would regularly accompany him to work locations to spend time with him or to observe his work, Attila did not perform any work for SIMS Integrated on those occasions and was not qualified to. Further, Imre did not train Attila in any of the tasks Attila identified as the subject of training on SIMS Integrated work sites. He deposed that he and Attila would colloquially refer to the time Attila spent with Imre on-site as “work”, although Attila did not perform any work.
Imre deposed that SIMS Integrated never charged for any time Attila spent on-site with him but said in his oral evidence that that statement had been based on information provided to him by Ms Angelo, he having not himself reviewed the invoices relevant to the period when Attila alleged he worked for SIMS Integrated.
Imre claimed that at all relevant times Attila was not qualified to complete the work performed by SIMS Integrated. He deposed that SIMS Integrated did not employ people who were not qualified in the systems it worked on and he would not have considered hiring Attila.
In cross-examination, Imre was taken to the text message referred to above at [48]:
Give me your bank details cath will deposit $ after shr knows
and while acknowledging he sent it, denied having sent it on 25 June 2015 as Attila alleged. He said he could not remember a conversation on 25 June 2015 or at any other time to the effect alleged. He said that such conversations as he had had with Attila about money concerned amounts he lent Attila and deposed that the text in question related to a loan Attila had requested of him. In cross-examination, he also said that it related to the shower project. The following exchange ensued:
MR GERARD: You just referred to this being a payment about a shower, didn’t you? This text message being about payments for a shower?
IMRE:Yes. We were working on a shower.
MR GERARD: And at 133 of your affidavit, where you say you had a better recollection at that time, you’re talking about a loan, aren’t you?
IMRE:I’ve lent him money.
MR GERARD: Yes. When you said in your evidence just before, that this text message was about payments in respect of a shower - - -?
IMRE:Yes.
MR GERARD: - - - you just made that up on that spot, didn’t you?
IMRE:No, I didn’t.
MR GERARD: Well, why do you say, at paragraph 133, in respect of this text message, that it’s about a request for a loan?
IMRE:He had asked me for a loan and I, later, gave it to him.
MR GERARD: So which one is it?
IMRE:It’s both.
Imre was also taken to the exchange of text messages between him and Attila on 13 July 2015 quoted earlier. Imre said that the first of the 13 July 2015 messages was not a request to Attila to help with a cabinet on the M7. He said that the exchange was in fact multiple conversations, one being in relation to a loan, and his final reply concerned finding others to work on the shower project. He agreed that his exchange of texts with Attila did not refer to the loan or to the shower project expressly but he and Attila knew to what he had been referring and the statement about finding others concerned the shower project.
Uniform
Imre claimed that he would often give family and friends spare “SIMS uniforms” (SIMS Security and SIMS Integrated uniforms) and that he would provide clean SIMS Integrated uniforms for Attila to change into when he stayed at Imre’s home, particularly when he arrived after work. Imre deposed that any time Attila wore SIMS Integrated uniforms to work sites of SIMS Integrated clients, he did so of his own volition and not at the direction of SIMS Integrated. However, Attila did wear a uniform every time he went to a SIMS Integrated worksite with Imre.
Induction and Passes
Imre deposed that if Attila completed any induction training in relation to SIMS Integrated clients, he did so because those companies’ work sites required that of persons who attended those sites.
In relation to Attila’s evidence about passes given to him by SIMS Integrated, Imre deposed that:
a)Sanitarium required Imre to have multiple access cards in order to test equipment on that site. He deposed that the access cards were assigned to him and that he put a photo of Attila on one of the cards as a joke;
b)access cards issued by the Colgate site were reusable and were to be returned each day. Imre deposed that Attila would attend the Colgate site to “take advantage of the free lunches on-site”; and
c)a white card which Attila annexed to his first affidavit with respect to the M7 site was a construction card that everyone on-site was required to have.
Estate proceedings
Imre deposed that in or around August 2015 he and Ildiko commenced proceedings to remove Attila’s mother as administrator of their father’s estate. Imre deposed that after Attila’s mother was served with a statement of claim, Attila confronted him about the proceedings and threatened to “destroy” him if he continued.
Imre deposed that after this incident his relationship with Attila changed and Attila stopped communicating with him.
Invoices generally
Copies of SIMS Integrated invoices were introduced into evidence. Invoices that SIMS Integrated’s clients produced on subpoena were different in material respects from the versions of the same invoices produced by SIMS Integrated, most notably and importantly the latter did not contain information regarding Attila and his attendances at client’s premises or, ostensibly, fees invoiced for the time engaged.
In that regard, Imre deposed that in early 2016, he and Cathy began transferring information from an older Dell computer that used MYOB software to generate invoices to a new computer that used Xero software. He deposed that the company’s data had been transferred manually from one computer to another which involved copying out the invoices stored on MYOB and then entering the information manually on the new computer that used Xero. He deposed that this process took about seven months and involved the transfer of thousands of invoices. He further deposed that as he and Cathy had been focused on transferring the invoices between the programs quickly, they only entered information onto the new system that was essential for SIMS Integrated’s internal records and did not include every detail. He deposed that as the invoices transferred from MYOB had already been issued to and paid by the clients, the descriptions in the Xero version of the invoices did not need to include a detailed breakdown of costs, including labour costs.
Imre said that the job sheets, each of which was entitled “Communications Document” but informally called a “service docket”, were the records of the work done for a client on a particular job and also recorded all persons whom SIMS Integrated might have had working on a particular site on a particular day. SIMS Integrated’s invoices were based on what was recorded in the relevant service docket(s).
Imre deposed that SIMS Integrated use the following abbreviations in its invoices:
a)“IH” for basic service work he performed;
b)“AH” for “After Hours” work and sometimes also “additional technical hours”;
c)“ATH” for “Additional Technical hours” work; and
d)“BH” for “Business Hours” work.
He deposed that SIMS Integrated had not used the abbreviations “AH” or “ATH” in its invoices to refer to Attila.
Imre said that the rate charged for work done between 9am and 5pm was different from the rate charged for work done between 5pm and 9am, the latter being called the “after hours rate”.
Imre deposed that additional technical hours work involved “higher end work” that was billed at a rate different from the rates for “basic service work” or standard contractual work and so was recorded separately on the invoice. However, he deposed that the rate was not necessarily higher than the basic charge out rate and would sometimes be discounted.
Attila did not work for SIMS Integrated
Imre sought to diminish Attila’s role at SIMS Integrated worksites to something not much more than that of an observer. He deposed that even though he wore a SIMS Integrated uniform when on-site “Attila never did any work” and “did not perform any work for SIMS at Sanitarium”.
However, in his oral evidence Imre did agree that Attila had helped him perform the following tasks at the Sanitarium site:
·Cabling;
·Access control;
·CCTV installation;
·Conduiting;
·Mounting of cameras;
·Installation of RJ45 plugs;
·…
·Terminating cables;
…
·Mounting panels;
·Installing cameras;
·Testing cameras;
·Testing security systems;
·Troubleshooting;
·Focusing cameras;…
He agreed that until the end of June 2015 Attila had also helped him at the Colgate site with:
·Cabling of electrical systems;
·Access control;
·CCTV installation;
·Conduiting;
·Mounting of cameras;
·Installation of RJ45 plugs;
…
·Terminating cables;
…
·Installing speakers;
·Mounting panels;
·Installing cameras;
·Testing cameras;
·Testing security systems;
·Installing PA systems;
·Troubleshooting;
·Focusing cameras;
·Programming of equipment; and
·Manual handling of equipment
and at some of the M7 sites with these jobs:
·Cabling of electrical systems;
·CCTV installation;
·Mounting of cameras;
·Terminating cables;
·Crimping BNC connectors;
·Testing cameras;
·Troubleshooting;
·Manual handling of equipment; and
·Installation of lowering systems.
Imre then said that, in relation to Sanitarium, Colgate and the M7, what he had meant was that Attila had helped him with the manual handling aspects of those various particularised tasks by, for instance, carrying tools or a ladder. However, he did not look on that as real work. Imre said that Attila had not helped him with cabling work at Sanitarium, or with work associated with the installation of CCTV cameras.
Imre was taken to the text message he had sent to Attila on 2 May 2014 which said:
Hey dude, can you help me with another power shutdown sat 17th this month. 1700-0000 again maybe later for us.
He said that “there was nothing to be assisted with” on that job at Sanitarium and that he had not needed Attila’s help. He and Attila nevertheless went there together.
Invoices and communications documents
Invoice 30217
Communications document C1047, on which invoice 30217 was based, recorded that “Imi & Attila” were SIMS Integrated’s representatives at the Colgate site on 30 September 2013, with time on-site being recorded as “1000-1450”. Imre disagreed with the proposition that the communications document recorded him and Attila having worked at Colgate at Villawood on 30 September 2013 between 10.00 and 14.50 although he agreed that they had been on-site.
The MYOB version of invoice 30217, produced by Sodexo, recorded:
Labour 4.5 hrs x 2 techs
whereas the copy produced by SIMS Integrated, purportedly from the Xero system, simply referred to:
Labour.
Imre conceded that two technicians had been charged. He initially said that although he did not know the identity of the other technician whose time had been charged, it was not Attila, who was not a technician anyway. Later he agreed that Attila’s time had “effectively” been charged by this invoice.
It was put to Imre that the only thing that he had considered inessential information, and therefore not copied over in the migration of invoice 30217 from MYOB to Xero, were the words “4.5 hrs x 2 techs”. Imre said that they had opted for speed, not thinking they would have to reissue invoices that had been “closed off”, but otherwise had no idea why the detail “4.5 hrs x 2 techs” was missing.
The version of the invoice that Imre said came from SIMS Integrated’s records, and so from the Xero accounting system, also bore a footer:
Printed from MYOB asked about this apparent anomaly and whether it evidenced the document without the words “4.5 hrs x 2 techs” having been sourced from MYOB not Xero, Imre suggested that it was the product of human error but otherwise had no explanation for it. He was taken to another example of the MYOB footer on invoice 30324 in respect of which he said “We all make mistakes” and “To the best of my knowledge that’s what a Xero invoice looks like” and it was part of the template.
Invoice 30301
Communications document C1204, which was the basis of invoice 30301, recorded Imre being at the Sanitarium site between 09.30 and 21.00 on 28 January 2014. Relevantly, the communications document said:
28.1.14 0930 2100 x 2,
and the invoice said:
Labour 11.5 hrs x 2 techs.
In cross-examination, Imre was taken to entries in the Sanitarium sign-in records, annexed to Mr Crawford’s affidavit. He agreed that they showed that he and Attila had been on-site that day between 9.35 and 21.00 and that the entry “x 2” on the communications document referred to that. He went on to agree that although communications document C1204 did not identify Attila by name, “x 2” was a reference to him as was “Labour 11.5 hrs x 2 techs” in the invoice.
Invoice 30303
As billed to the client, invoice 30303 says:
labour 9 hours x 2 techs
while the copy produced by SIMS Integrated merely has
Labour.
Communications document C1209, on which that invoice is based, refers to “Imi & Attila” being the SIMS Integrated representatives at the Sanitarium site on 5 February 2014 and to the hours having been 9.20-18.30, ie 9 hours, 10 minutes.
Imre conceded in cross-examination that Attila would have been the other technician whose time was charged in invoice 30303.
Invoice 30304
Invoice 30304 is partly based on communications document C1210, which relevantly says:
06-02-14 1140-1715 Imi & Attila…
…
… Chargable [sic] hours for Attila = 4 only.
Imre explained this entry of his saying that the client might have ordered SIMS Integrated to do something that was suitable for Attila to do.
The invoice relevantly said:
Labour IH 5.5hrs $522.50
Labour AH 4 hrs $240
Imre agreed that the invoice charged Attila’s time.
It might be noted that Imre was charged at $95 per hour and Attila was charged at $60 per hour.
Invoice 30320
Communications document C1229, on which invoice 30320 was based, recorded that “IH & AH” were SIMS Integrated’s representatives at the Sanitarium site on 20 February 2014, with time on-site being recorded as “0830-1620 x 2”. Initially, Imre was reluctant to agree that “AH” was a reference to Attila:
MR GERARD: And do you see the handwriting, “IH and AH”? Do you see that?
IMRE:Yes.
MR GERARD: The reference there to “AH” is again a reference to Attila; isn’t that right?
IMRE:I’m not certain.
…
MR GERARD: Well, Mr Hornyak, you completed this document, didn’t you?
IMRE:Yes, I did.
MR GERARD: And the initials “IH” refer to you, don’t they?
IMRE:Yes.
MR GERARD: And you’re a representative of Sims, aren’t you?
IMRE:Yes, I am.
MR GERARD: And the initials “AH” were affixed there by you to refer to a further person that was in attendance with you; is that right?
IMRE:Yes. I assume so, yes.
MR GERARD: Yes. And Attila Hornyak has the initials AH; correct?
IMRE:Yes.
MR GERARD: Does any other person that assisted you with Sims work in about February 2014 carry the initials “AH”?
IMRE:No.
MR GERARD: So do you accept that the initials “AH” refer to Attila?
IMRE:I will accept that, yes.
Imre further explained the notations on the communications document as follows:
MR GERARD: And when you identify the Sims representatives as IH and AH, your intention there is to identify that there is [sic] two Sims representatives, isn't it?
IMRE:Well, there are two people on-site.
MR GERARD: And your intention by completing the words 8.30 am to 4.20 pm “times two” on the service document is to indicate to the person creating the invoice to charge for two persons times eight hours, isn't it?
IMRE:Well, that’s not my indication. That’s – that’s how it’s written. It is not an indication to charge as such, but that’s how it has come across. Yes.
The invoice 30320, of which there was only the client’s copy, stated:
Labour 8hrs IH $760.00
Labour 8 hrs AH $480.00.
Having being taken to communications document C1229, Imre agreed that the invoice’s reference to “AH” was a reference to Attila. He agreed that they had been on-site between 08.30 and 16.20, a period of 7 hours and 50 minutes.
Based on the sums billed, Imre was charged at $95 per hour and Attila was charged at $60 per hour.
Invoice 30321
Invoice 30321 was based on communications document C1227 which was expressed to relate to “AH works shutdown” at Sanitarium on 1 March 2014. The communications document also stated, relevantly:
1930 – 0130 x 2 Imi & Attila.
Invoice 30321 recorded:
After hours Labour 6 hrs IH $1,080.00
After Hours Labour 6 hrs AH $720.00.
Imre was cross-examined on it:
MR GERARD: You agree with me that the final entry on the description section of that invoice to “after hours labour six hours AH” is a reference to Attila Hornyak?
IMRE:Well, there’s an AH there. Well, it’s – there’s an AH there. That’s all I can say. Again, I don’t do the invoicing.
MR GERARD: And you do do the service documents, though?
IMRE:I do.
MR GERARD: And you agree ---?
IMRE:I don’t deny that his name is there. No.
MR GERARD: And his name is there for six hours?
IMRE:Sure.
MR GERARD: And his name is there for six hours in your span of after hours work; correct?
IMRE:Well, his name isn’t there. We’ve got an AH there. But yes.
MR GERARD: Sorry. Page 130 [the communications document] I’m asking you about?
IMRE:130. Yes. His name is there.
MR GERARD: And his name is there for six hours?
IMRE:Yes
MR GERARD: And his name is there for six hours within a span that your company charges after hours work for?
IMRE:Yes. It says up top “AH”.
MR GERARD: So – and come back to page 134 [the invoice]?
IMRE:Yes.
MR GERARD: And the “labour six hours AH” in the description section is a reference to Attila Hornyak, isn’t it?
IMRE:Well, I don’t know. It could be after hours. I don’t know. I don’t do it and I can’t recall that.
However, earlier in cross-examination Imre had conceded that “AH” was indeed a reference to Attila. He had originally said in cross-examination that invoice 30321 was an example of “AH” referring to additional technical hours and that the invoice referred to twelve hours’ work, being six hours of basic work and a further six hours at a different rate because he was already on-site. He then went on to say that such additional hours might not have been “additional technical hours” but simply additional hours. However, Imre had conceded in para.240 of his affidavit of 6 December 2017 that “AH” in invoice 30321 was indeed a reference to Attila. He also conceded that his evidence at para.18 of that affidavit, that SIMS Integrated had not used “AH” to refer to Attila, was incorrect.
Invoice 30328
Invoice 30328 was based on communications document C1237 which recorded that on 8 March 2014 “Imi & Attila” attended the Sanitarium site for “AH works” during the period “1930 – 0230”. The invoice relevantly said:
Labour IH 7hrs $1260
Labour AH 7hrs $840.
Imre conceded in his affidavit of 6 December 2017 that “AH” in invoice 30328 was a reference to Attila.
Invoice 30405
Invoice 30405 was based on communications document C1463 which recorded that “Imi & Attila” were SIMS Integrated’s representatives at the Sanitarium site on 2 September 2014. It mentioned no other person. The communications document said:
Check emails from (redacted) from (redacted). Emails are being sent OK. Reprogrammed (redacted). Forced gmails working fine.
Notice some (redacted) but this is not on (redacted) side. Ref IT from previous
Reboot of (redacted) Also performed.
1400-1600.
The tax invoice stated:
Service call out as per C1463
Check emails from (redacted)
Labour IH 1.5hr
Labour ATH 1.5 hr.
The “Labour IH” was charged at $120 per hour and the “Labour ATH” was charged at $95 per hour.
In cross-examination, Imre said that he interpreted “Labour ATH 1.5hr” as 1.5 hours of additional technical hours’ labour and “Labour IH 1.5hr” as 1.5 hours of basic service work.
Invoice 30412
Invoice 30412 was based on communications document C1458 which recorded that “Imi & Attila” were SIMS Integrated’s representatives at the Colgate site on 27 August 2014 and mentioned no other person. The communications document stated:
LABOUR: 1300-1400.
The client version of this invoice refers to:
Labour 1 hr x 2 techs
whereas the version from the SIMS Integrated files simply says:
Labour.
In both versions of the invoice the amounts charged for various items including labour were redacted.
In cross-examination Imre agreed that the reference to “2 techs” in the client’s version of the invoice was intended to refer to him and Attila but because the details of SIMS Integrated’s charges had been redacted from the exhibited invoice he could not say whether or not Attila’s time had been charged.
Imre explained the difference between the two versions of the invoice as a result of the data migration from the MYOB program to the Xero one.
Invoice 30425
Communications document C1473, on which invoice 30425 was based, recorded that “Imi & Attila” were SIMS Integrated’s representatives at the Sanitarium site on 29 September 2014, with time on-site being recorded as “0800-1610”.
The invoice charged as follows:
Attend site for (redacted) issues, found (redacted) server working correctly,
Sanitarium mail server is (redacted) 2 techs onsite.
Labour IH 8hrs $960.00
Labour ATH 8 hrs $760.00
Based on the sums billed, “IH” was charged at $120 per hour and “ATH” was charged at $95 per hour.
Even though communications document C1473 referred to “Imi & Attila” being on-site between 08.00-16.10, ie. 8 hours 10 minutes, Imre said that “ATH” on the invoice did not refer to Attila but to “additional technical hours” performed by him, Imre. He explained that if he was performing two different tasks at the same time he could charge separately for both, effectively charging double time. He explained as follows:
HIS HONOUR: But if it’s additional technical hours---?
IMRE:Yes.
HIS HONOUR: ---additional to what? Presumably additional to the original eight?
IMRE:No. Additional to what I was doing. So I will be charging for the eight hours. I will try to simplify it as best I can. If I’m working on one set of servers and that’s what I’ve been called out for, that’s what I’m working on, and if I think have to come out so I can do everything in one day, I will then go out and work and perform on an additional set of servers or, you know, in whatever I need to do, all the IT work. So I will also work in with the IT departments. So I split myself up, and that’s what that’s all about. That’s where ATH comes into it.
Invoice 30535
Communications document C1370, on which invoice 30535 was based, recorded that “Imi & Attila” were SIMS Integrated’s representatives at the Colgate site on 24 April 2015, with time on-site being recorded as “0930-1415”. It described the work done as follows:
Identify PA lead in Cabling from (redacted). Identify (redacted) on drawing. Identify fault with (redacted). Clean (redacted) requiring cleaning. Inform (redacted) of results & works still required.
An unredacted version of this invoice became Ex.A1 but its contents were made the subject of a confidentiality order limiting inspection of the document to the parties and their representatives. The redacted portions tended to identify particular details of the work.
The related client invoice charged for:
Labour 4.5hrs (Tech-IH)
Labour 4.5hrs (Tech-ATH)
although the amounts charged were redacted.
Imre agreed in cross-examination that “IH” was a reference to him but said that “ATH” referred to additional technical hours, not to Attila. He said that SIMS Integrated had charged 4.5 hours of base service work performed by him and then a further 4.5 hours of additional technical hours, also performed by him even though the communications document only recorded work between 09.30 and 14.15, ie 4.75 hours. He said that there had been additional work “with CAD drawings which also took four and a half hours”. He said that this could be discerned from the communications document’s references to “identify drawings” and “drawing identify”. He said that SIMS Integrated had had to provide CAD drawings and he remembered what he had done for that client. He explained things further:
IMRE:I know my writing and I know the – the drawing references and I know what I’ve done for that client.
MR GERARD: So you---?
IMRE:This is where I start to excel.
MR GERARD: You have an independent memory today of performing exactly four and a half hours of drawing work in respect of the work recorded on service document 1370?
IMRE:I can only go by my hours here, and I know that around there when we started talking about drawings, it’s all about also CAD work.
MR GERARD: And where is the four and a half hours written in respect of drawing on this document?
IMRE:It may have come post because I also do that at the same time that I’m doing other work there. So that’s how they get charged.
MR GERARD: Yes?
IMRE:And they’re aware of that.
Invoice 30547
Communications document C1366, on which invoice 30547 was based, recorded that “Imi & Attila” were SIMS Integrated’s representatives at the Sanitarium site on 2 April 2015, with time on-site being recorded as “1040 - 1530”. It described the work done as follows:
Attend site to relocate CCTV Camera in (redacted) for (redacted). Relocate test & commission.
1 x Cable (redacted)
1 x Sundries (redacted).
The version of invoice 30547 produced by Sanitarium referred to:
Labour 4hrs (Tech IH)
Labour 4hrs (Tech ATH)
whereas the version produced from SIMS Integrated’s records referred only to
Labour 4 hrs.
Imre did not accept that “ATH” in Sanitarium’s version of the invoice was a reference to Attila.
Communications document C1131
Communications document C1131 was headed “M7” and stated:
Project time sheet for AH
26.5.14 0700-1730 cam 39
28.5.14 0700-1500
29.5.14 0630-1600
30.5.14 0630-1130
3.6.14 0630-1530
4.6.14 2000-0130
5.6.14 2000-0130.
Imre’s evidence was that “AH” did not refer to Attila but was instead a reference to after-hours work.
Catherine Hornyak
Cathy said that from about May 2013 to November 2015 she was SIMS Integrated’s sole director and regarded herself as responsible for the management of the company. She had also been company secretary until 1 January 2017. She deposed that she had taken on those roles because at the time she was the only person available to sign the paperwork required to establish the business. She deposed that she had had no involvement in the daily running of SIMS Integrated or in decisions relating to it although she would occasionally assist with the payment of its bills and, at Imre’s request, send emails on its behalf.
Cathy said that Imre made the decisions regarding SIMS Integrated’s staffing needs in the period relevant to this proceeding while, with Imre’s sister Ildiko, she did most of the invoicing, based on information Imre gave to her. Imre also prepared invoices as did Ms Angelo. She said that she prepared the invoices based on the information in the communications documents unless they referred to a quotation, in which the invoice would “correspond” to the quotation. Imre did not check the invoices. When taken to the Xero version of invoice 30139, dated 24 June 2013, Cathy agreed that its references to “SB” were to Steve Boland.
Cathy deposed that Attila and Imre used to spend a lot of time together, particularly after their father’s death. They would attend each other’s workplaces.
Cathy deposed that she could not recall the 2013 conversation in which, according to Attila, Imre asked him to do casual work for SIMS Integrated following Steve Boland’s departure. She said she believed she would have remembered it if it had occurred.
Cathy could not remember when she last saw the Dell PC and had no recollection at all of it being phased out. She agreed that one day the old computer was being used and the next it was not.
Cathy knew that SIMS Integrated was not paying Attila for his attendances at its work sites and also that it kept no records in relation to him, saying he was not an employee.
Invoice 30321
In cross-examination Cathy was taken to communications document C1227 on which invoice 30321 was based and to its notation:
1930-0130 x 2 Imi & Attila.
She said that this indicated that the two men were at the Sanitarium site between 7.30pm and 1.30am. She was later taken to invoice 30321 and its entry:
After Hours Labour 6 hours IH
After Hours Labour 6 hours AH.
Cathy said that the first line was a reference to Imre performing six hours of labour outside SIMS Integrated’s standard business hours but she did not know whether the second line referred to Attila. Communications document C1227, which she confirmed referred to Attila, did not assist her understanding of that entry. She could not say to what, other than Attila, it might have been referring but was not willing to concede that it was a reference to Attila as she had been told not to charge his time.
Invoice 30328
Cathy was taken to communications document C1237 which relevantly recorded in relation to work on 8 March 2014 at Sanitarium:
* 1930 – 0230 Imi & Attila.
After eliciting from Cathy an acknowledgment that the communications document recorded Attila’s presence with Imre at Sanitarium on 8 March 2014, the cross-examination proceeded:
MR GERARD: So can you tell me, based on this information and your experience as the person who mainly prepared Sims’ invoices, what the invoice for this service docket would look like?
CATHY:It would have a service call-out fee and an after-hours labour charge.
MR GERARD: And whose time would it charge for?
CATHY:Ime’s.
MR GERARD: And it wouldn’t charge for any other person’s time?
CATHY:No, it’s - - -
MR GERARD: And it would – it would charge for Ime between the hours and 7.30 pm and 2.30 am, would it?
CATHY:For the 8th, yes.
The related invoice, number 30328, recorded:
AH Labour IH 7 hrs
AH labour AH 7 hrs.
Invoice 30547
Communications document C1366 recorded Imre and Attila being at the Sanitarium site on 20 April 2015 between 10.40 and 15.30. In cross-examination Cathy said that, based on that information, she would expect the resulting invoice to relevantly say no more than “Imre; four and a half hours”. In particular, she would have expected to see no other reference on the invoice to work performed or charged.
As recorded earlier, the version of invoice 30547 produced by Sanitarium referred to:
Labour 4hrs (Tech IH)
Labour 4hrs (Tech ATH).
Cathy rejected the suggestion that “ATH” was reference to Attila, saying:
I was indicated not to invoice for Attila’s hours.
She said that communications document C1366 did not clarify the invoice’s meaning and suggested that ATH might have been a reference to “technical hours”, although she also conceded that the invoice did not refer to eight hours’ work.
DISCUSSION
Overall, the evidence persuades me that Attila did do work for SIMS Integrated for which he should have been paid.
In making the following findings, I have kept in mind s.140 of the Evidence Act 1995 and the antecedent common law that informs it.
Attila qualified to do security work
As the above summary of the evidence made apparent, the brothers disagreed about Attila’s qualifications and experience. However, the respondents did not, with their own evidence, seek to contradict Attila’s evidence that the licences he held at all times material to this proceeding permitted him to sell, install, maintain, repair and service security equipment, or to challenge its particulars. For the reasons that follow, I accept that at all relevant times Attila was qualified to do that work and so was in a position to provide technician services to SIMS Integrated, if required.
Attila’s security industry licence
The respondents submitted that Attila’s claims to have had the level of technical skill he claimed for himself were unsupported by other evidence but those submissions misunderstood his security industry licence. The respondents’ submissions were based on the present wording of the Security Industry Act 1997 (NSW) which relevantly provides:
12 Class 2 licences
(1)Class 2 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows:
…
(b) class 2B—authorises the licensee:
(i) to sell, and provide advice in relation to, security equipment, and
(ii) to sell the services of persons to carry on any security activity, and
(iii) to act as an agent for, or otherwise obtain contracts for, the supply of persons to carry on any security activity, the supply of any security equipment or the supply of any security activity, and
(iv) to broker any security activity by acting as an intermediary to negotiate and obtain any such activity for a person in return for a commission or financial benefit,
(c)class 2C—authorises the licensee to sell, install, maintain, repair and service, and provide advice in relation to, security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith,
…
(2)The relevant subclass is to be endorsed on each class 2 licence. …
However, that section was in a different form when Attila’s licence was issued.
For reasons given later, I accept that the security industry licence Attila held in the period relevant to this proceeding was issued in 2011. That licence recorded that in the period relevant to this proceeding Attila was the holder of, relevantly, class 2B, class 2E and class 2F licences. Attila freely conceded that he had not held a class 2C licence in the period 2013 to 2015 but said that he was nevertheless licensed to do the work covered by a class 2C licence. He explained this by reference to changes in the licensing regime, claims that are borne out by the terms of the Security Industry Act from time to time.
In 2011, when Attila’s licence was issued, s.12 of the Security Industry Act relevantly provided:
12 Class 2 licences
(1)Class 2 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows:
…
(b)class 2B—authorises the licensee to sell, and provide advice in relation to, security equipment and to sell the services of persons to carry on any security activity,
(c)class 2C—authorises the licensee to act as a locksmith, including selling, installing, maintaining, repairing and servicing, and providing advice in relation to, security equipment (including barrier equipment),
…
(e)class 2E—authorises the licensee to protect assets or other property by selling, installing, maintaining, repairing and servicing, and providing advice in relation to, barrier equipment,
(f)class 2F—authorises the licensee to sell, install, maintain, repair and service, and provide advice in relation to, electronic security equipment,
…
In 2012, cls.20 and 21 of sch.1 to the Security Industry Amendment Act 2012 (NSW) amended s.12 of the Security Industry Act as follows:
[20] Section 12 Class 2 licences
Omit section 12(1)(c). Insert instead:
(c)class 2C—authorises the licensee to sell, install, maintain, repair and service, and provide advice in relation to, security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith,
[21] Section 12 (1) (e) and (f)
Omit the paragraphs.
…
[79] …
26 Conversion of existing class 2E licence to class 2C licence
On the commencement of this clause, a licence that was a class 2E licence immediately before the repeal of section 12 (1) (e) by the amending Act is taken to be, and to have the authority conferred by, a class 2C licence.
27 Conversion of existing class 2F licence to class 2C licence
On the commencement of this clause, a licence that was a class 2F licence immediately before the repeal of section 12 (1) (f) by the amending Act is taken to be, and to have the authority conferred by, a class 2C licence.
Those provisions commenced on 1 November 2012: s.2(2) Security Industry Amendment Act 2012.
In 2014, item 2 of cl.1.25 of sch.1 to the Statute Law (Miscellaneous Provisions) Act (No 2) 2014 (NSW) further amended s.12(1) of the Security Industry Act as follows:
[2] Section 12 Class 2 licences
Omit section 12(1)(a) and (b). Insert instead:
…
(b) class 2B—authorises the licensee:
(i) to sell, and provide advice in relation to, security equipment, and
(ii) to sell the services of persons to carry on any security activity, and
(iii) to act as an agent for, or otherwise obtain contracts for, the supply of persons to carry on any security activity, the supply of any security equipment or the supply of any security activity, and
(iv) to broker any security activity by acting as an intermediary to negotiate and obtain any such activity for a person in return for a commission or financial benefit,
…
That provision commenced on 8 January 2015: s.2 Statute Law (Miscellaneous Provisions) Act (No 2) 2014.
The combined effect of those amendments was to bring the relevant parts of s.12(1) of the Security Industry Act to their present wording. Importantly, however, the history of the Security Industry Act shows that for the period of his licence issued under that Act, Attila was authorised to sell, install, maintain, repair, service and provide advice in relation to security equipment (including electronic security equipment and barrier equipment).
As to when Attila’s licence was issued, at all relevant times s.24(1) of the Security Industry Act has provided that the term of a security industry licence is five years or such shorter period as is prescribed by regulation. From 2010 to 2016, cl.10 the Security Industry Regulation 2007 (NSW) prescribed one year for the purposes of s.24(1) of the Security Industry Act.
Given that Attila’s security industry licence which expired on 14 September 2016, a copy of which was annexed to his affidavit of 8 March 2017, records him to have been the holder of, relevantly class 2B, E and F licences, I infer that his licence had been issued in 2011 for the standard five year period. This is because if Attila had opted for a one year licence in 2015, he would not have been issued class 2E or F licences as provision for them had been repealed in 2012.
On 14 September 2011, when I infer Attila’s security industry licence was issued, s.15 of the Security Industry Act relevantly provided:
15 Restrictions on granting licence—general suitability criteria
(1)The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
…
(c)in the case of application for a licence other than a provisional licence—does not have the competencies and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or
(d)is not competent to carry on the security activity to which the proposed licence relates …
On 14 September 2011, cl.13 of the Security Industry Regulation relevantly provided:
13 Information and particulars to accompany licence application: section 14 (2) (b)
(1)Class 1, class 2 and provisional licences For the purposes of section 14(2)(b) of the Act, an application for a class 1, class 2 or provisional licence must include the following information:
…
(d) the security activities that the applicant proposes to carry on under the licence,
(e) evidence of the applicant’s competencies and experience referred to in section 15(1)(c) of the Act,
…
The State regulatory regime provides therefore that a person is not to be licensed under the Security Industry Act unless they are qualified to do the work in respect of which they seek to be licensed. I conclude that at all relevant times Attila was qualified to sell, install, maintain, repair and service security equipment.
SIMS Integrated’s conduct
Much of the detail in this matter turned on the company’s records of site visits and related billing, which will be discussed in more detail shortly. Such documents of that sort as are in evidence demonstrate that SIMS Integrated charged clients for Attila’s time on-site, representing him to have done work with Imre. That fact implies that SIMS Integrated was satisfied that Attila had sufficient skills and experience to be billed as a technician, contrary to the contrary contention advanced by the respondents.
SIMS Integrated charged for Attila’s time
The parties agreed that Attila had attended SIMS Integrated work sites with Imre. Attila’s claim was that he had accompanied Imre to do paying work. The respondents’ defence was that when Attila attended SIMS Integrated work sites with Imre, he was basically an observer who provided some voluntary assistance to his older brother while enjoying his company.
The SIMS Integrated invoices and communications documents tended to corroborate Attila’s version of events by bearing out his contention that he performed work for SIMS Integrated as a technician and was not just a passive observer. Imre’s evidence regarding those documents was problematical.
Invoices and communications documents
Purpose of communications documents
Imre asserted that everyone from SIMS Integrated who was on a worksite would be recorded in the relevant communications document, the associated implication being that a mention of Attila in such documents did not mean that he was performing work. However, invoice 30301 recorded and charged for two technicians even though, other than a notation that Imre was the representative, the technicians were not identified in the invoice or in the communications document. Invoice 30301 suggests therefore that a communications document’s reference to a person’s presence at a worksite was in order that their time could be billed, not as an attendance record the need for whose existence was never demonstrated. As a side note, the relevant site sign-in register indicates that Attila was the unidentified technician.
Further on the role of the communications documents, Imre conceded that SIMS Integrated had billed Attila’s time in invoice 30304, the relevant entry in the communications document being,
06-02-14 1140-1715 Imi & Attila…
…
…Chargable [sic] hours for Attila = 4 only.
That suggests that if not told to do otherwise, the person who prepared the invoice would have billed Attila for the full 5.5 hour period rather than just part of it.
References to Attila
It was notable that, associated with each of the invoices referred to earlier in which the “AH” abbreviation appeared, was a communications document that recorded the presence at the relevant client’s premises on that day of Attila and no one else other than Imre. As also recorded earlier and contrary to his affidavit evidence, in his oral evidence Imre conceded that SIMS Integrated had charged for Attila’s time in invoices 30304, 30320, 30321 and 30328 where Attila had been referred to as “AH”. Imre also conceded that SIMS Integrated had charged Attila’s time more generally.
Was there a contract?
Given the difficulties to which reference has been made, I consider Imre and Cathy’s evidence less reliable than Attila’s, albeit that the latter was not without its difficulties. Consequently, where they differ, I prefer Attila’s version of events, including his account of his conversation with Imre in April 2013 by which Attila came to work for SIMS Integrated. I conclude that the brothers agreed at that time that Attila would work for SIMS Integrated on an ad hoc basis, a conclusion which, on the whole, the other evidence supports.
The respondents submitted that there had been no intention to enter legal relations. It was also said that the arrangement was too informal to amount to a contract because:
a)the parties did not conduct themselves in a business-like manner;
b)Attila never asked to be paid during this period; and
c)at no time was there a formal request to attend for work for a specific period of time or for the performance of any particular work.
The fact that the attendances were ad hoc and apparently voluntary on Attila’s part does not mean, as the respondents submitted, that there was no contract of employment. It is of note that Attila became involved in Imre’s business after a predecessor company had failed and Imre revived the business as SIMS Integrated. Attila’s description of Imre’s motivation in using him is one that makes sense. The appropriate way to look at the discussion of April 2013 was that from it emerged an arrangement that Attila would work with Imre when it was mutually convenient and that Imre would pay him for that work. Imre’s acceptance of Attila’s limited availability was reflected in his 13 July 2015 text message in which he said that he would “find others” when Attila told him he was unavailable to accompany him to a job on the M7, an exchange to which I will return.
In a different context such an arrangement might be considered to lack sufficient certainty with the result that no enforceable contract existed. However, the law of casual employment contemplates and allows for uncertainty of that sort. In Reed v Blue Line CruisesLimited (1996) 73 IR 420, Moore J discussed casual employment in the following terms:
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual. (at 425)
His Honour’s reasons have been cited with approval in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 and WorkPac Pty Ltd v Rossato [2020] FCAFC 84. Reference was made in submissions to Accident Compensation Commission v Odco Pty Ltd (1990) 64 ALJR 606, however, that case is distinguishable.
Moreover, the fact that there has been no discussion of the terms of the contract, as would ordinarily be the case in other contexts, need not amount to fatal uncertainty if the relationship is governed by an award, the National Employment Standards (“NES”) and the FW Act more generally, as was the case here. The respondents go too far submitting:
So the quality of the agreement made between the parties needs to be shown to be one that could be the subject of adjudication of the courts, and so then one goes to issues such as that it was certain; that it was clear that there were parties, that there were identifiable parties; that there were [sic] consideration. And we say that a conversation can’t be regarded as one where the parties intended that could be enforced by a court, or that there is no inference open that the parties could have intended for the agreement to be adjudicated by the court.
The parties need not have turned their mind to adjudication of differences. The essence of a contract is the parties’ promises to each other and, in the context of casual employment governed by the Award, the NES and the FW Act generally, the essential elements of the relationship have been prescribed. The respondents did not point to any essential element which the postulated contract lacked.
The respondents also submitted that the casual nature of the relationship pointed to it not having been a commercial one. The fact that Imre and Attila behaved towards each other in an informal manner is to be weighed in the balance with the fact that Attila attended SIMS Integrated worksites and performed work for it. In my view, given that the two men were brothers, informality in their communications is a much less weighty consideration than the fact of that work and that SIMS Integrated charged for it. In that regard, Attila’s attendances at SIMS Integrated’s worksites were sufficiently frequent and lengthy, some finishing very late at night, for Imre’s characterisation of Attila’s presence to be improbable. For instance the chance that Attila would go on-site on a Saturday night from 5pm to midnight, as Imre’s text message of 2 May 2014 proposed and as happened, simply to spend time with his brother, when he already saw quite a bit of him, seems remote.
The evidence was that Ildiko was paid for her help with the books so it is not completely credible that Attila, a person with his own business, would spend so much time with his brother’s business, particularly when qualified in the work, without also expecting to be paid. Similarly, I do not accept that Imre would have expected Attila to have spent so much time on SIMS Integrated jobs, in an area in which he was qualified, without being compensated financially for his time, particularly when SIMS Integrated was charging clients for that time. Indeed the fact that SIMS Integrated billed its clients for Attila’s time is a further indication that there was a commercial element to the brothers’ relationship. I infer that SIMS Integrated’s billing of Attila’s time reflects a concomitant obligation to pay him for that time.
For those reasons, and also because I accept Attila’s account of the April 2013 conversation, I find that Imre told Attila then that he would pay him for his work. In connection with an agreement of that sort, Jessup J said in Shahid v Australasian College of Dermatologists (2008) 168 FCR 46:
Where one party makes, and the other party accepts, a money payment as consideration for a promise by the other to provide some service or to bestow some benefit, the proposition that each intended the promise to be taken seriously and to carry the conventional legal consequences does seem rather obvious. (at 110 [214])
The respondents criticised Attila’s lack of written records concerning his alleged employment with SIMS Integrated but that partly reflects the fact that SIMS Integrated gave him nothing in the form of a record which he could keep. That he did not maintain more particular records of his own is as easily explained by him trusting Imre as by the lack of an agreement between them.
Reference was also made to Attila’s failure to ask for payment before 2015, which was unusual and would ordinarily point strongly to the absence of a contract of employment. However, to be balanced against that is SIMS Integrated’s failure to pass on to Attila any part of the money it earned from charging for his work. If Imre was the brother to Attila he represented himself to have been, I do not believe that he and Cathy would not have told Attila of the money he had earned their company or said that he was not entitled to be compensated for his related exertions. In those circumstances I infer that SIMS Integrated retained the amounts it owed Attila with his knowledge and approval, in which case his lengthy silence on the subject can be understood.
Why Attila wanted the funds to be passed over to him then, rather than be spent on the holiday that had been envisaged, may be related to the foreshadowing of the estate proceedings on or about 30 July 2015. The fact that he did not work with Imre after that would suggest so but it is not necessary to decide.
The fact is that Attila did attend SIMS Integrated sites and did perform work for which SIMS Integrated was able to render invoices that, it might be assumed, were paid. I conclude that he did so pursuant to the agreement reached in April 2013 by which he made himself available for casual work. The fact that the conversation was informal and occurred in a domestic setting does weigh in favour of the respondents’ characterisation of the arrangement, but the parties’ subsequent conduct belies that interpretation and demonstrates that it was truly commercial in nature, albeit in a family context.
Although that finding decides the question whether Attila had a contract with SIMS Integrated, further arguments advanced by the parties should be mentioned.
The respondents submitted that:
… the overwhelming number of contemporaneous documents and the applicant's own evidence support the inference that he never asserted that he was an employee during the alleged employment period and that he only made demands for payment following the commencements [sic] of the estate proceedings against the applicant's mother. …
Even without having been taken to the “overwhelming number of contemporaneous documents”, it can be accepted that apart from his account of a conversation in April 2013 there is no evidence of Attila having discussed his employment status with the respondents or of having asserted any employment rights prior to the request for payment he said he made on 25 June 2015. For the reasons which follow I find that he did not make a demand for payment at that point. However, the significance of the respondents’ reference to the estate proceedings is elusive as it was not suggested to Attila that there was a material link between those proceedings and his pursuit of wages. However, even if there was, that does not change the fact that he was not paid for work he performed pursuant to the agreement I have found existed.
As to dates, I find that Attila did not seek payment earlier than 15 September 2015. That was after he had ceased working with SIMS Integrated which, according to the invoices and communications documents was 17 June 2015, and according to the spreadsheet of November 2016 particularising his claim to the respondents was 26 June 2015.
A difficulty with Attila’s claim to have sought payment on 25 June 2015 for work on SIMS Integrated worksites is that he points to Imre’s third text message of 25 June 2015, seeking bank details, as being corroborative of that allegation. In considering that contention it is helpful to see Imre’s text messages of that day in order of despatch:
Sorry little brother
and
Understand if you don’t want to hang and help from here on
and
Give me your bank details cath will deposit $ after shr knows.
When the next text messages are set out, those of 25 June 2015 are more easily seen to have been referring to the shower project, which Attila made plain he did not want to be involved with:
26 June 2015
Imre:
Will be at colgate abiut 8 if you are still coming
27 June 2015
Imre:
Thx
29 June 2015
Imre:
(Photograph of three plastic glue (?) bottles)
1 (?) July 2015
Imre:
Hey, can you give me a call when you are up pls.
10 July 2015
Imre:
CUNN!
10 July 2015
Attila:
Cunnn
13 July 2015
Imre:
Hey CUNn. Just been told I’m doing a m7 cabinet tomorrow. Woodstock ave. are you up?
Imre:
And we’d
Attila:
I can’t busy with work for the next few weeks
Imre:
OK thx
Imre:
Will find others
Attila:
OK
Imre:
Are you still going to do stuff with me or not interested?
Attila:
I’ll help you where ever I can, but I am just swamped at the moment
(errors in original)
When read in the context of the ensuing text messages which, to my mind, clearly indicate that Imre and Attila were continuing to communicate about the latter attending SIMS Integrated worksites, I conclude that the statement:
Understand if you don’t want to hang and help from here on
does not refer to site attendances but to the shower project. Further, the third text message on 25 June 2015 makes no sense in context unless it relates to the second text message which means that it too relates to the shower project as Imre contended. I am not persuaded by Attila’s evidence that that third text message of 25 June 2015 concerned a wages claim he had made for work as a security technician. In that regard, I do not accept that Ms Angelo’s email of 15 July 2015:
Can we get some bank account details from you so if we need to square up any payments for work completed we have them on file
reads like a response to a request for two years’ back-pay. Instead, its reference to “work completed” is more reflective of the project-like nature of the little work that Attila says he did on the shower idea. I am therefore not persuaded that on 25 June 2015 Attila asked to be paid for his work for SIMS Integrated and find that his first demand was not made before 30 July 2015, when he and his mother received a letter from Imre and Ildiko’s solicitors regarding the siblings’ father’s estate.
In concluding that the texts of 25 June 2015 concerned the shower project I have not overlooked Imre’s evidence that they also related to a loan. No evidence other than Imre’s say-so was adduced in that regard and no particulars of the alleged loan or loans to which the final text in that exchange was said to relate were identified to the Court. I am not persuaded that the text did relate to a loan.
I also reject Imre’s evidence that the text exchanges on 13 July 2015 referred to the shower project. Attila’s evidence that that text conversation related to him accompanying Imre on SIMS Integrated jobs is a reading more consistent with the terms of the conversation. There is no apparent reason for reading the exchange which commenced:
Hey CUNn. Just been told I’m doing a m7 cabinet tomorrow. Woodstock ave. are you up?
as referring to the shower project. On that reading, rather than setting the context of the ensuing messages, the reference to the M7 was an anomalous and irrelevant interpolation to which no further reference was made. I reject that interpretation as quite improbable and find that the messages on that day concerned Attila attending SIMS Integrated worksites with Imre. The fact that the work-related exchanges were very informal is a matter cited by the respondents as being indicative of there having been no employment relationship but is explained by them having been between brothers.
A material consequence of the finding that on 13 July 2015 Imre was inviting Attila to join him on a job is that Imre’s statement that he would “find others” is a reference to having someone accompany him to SIMS Integrated worksites, not someone to help him with the shower project. That implies that Attila did more than keep Imre company on those jobs in that he made a contribution to them that needed to be replaced if he was unavailable.
That impression is reinforced by the text message Imre had sent Attila on 2 May 2014 which said:
Hey dude, can you help me with another power shutdown sat 17th this month. 1700-0000 again maybe later for us.
Imre’s oral evidence was that he had not needed Attila’s help on 17 May 2014 but the terms of the message contradict that assertion and I do not accept it, particularly as the respondents did not seek to contradict that meaning by producing the relevant communications document or invoice from SIMS Integrated’s records.
For these reasons too, I prefer Attila’s characterisation of the relationship and find that in about April 2013 Imre asked Attila to work for him from time to time as required.
AWARD COVERAGE
The Award has ten grades and Attila alleged that his claim should be assessed against the entitlements of an Electrical worker grade 5, the criteria for which were set out earlier in these reasons. The criteria for an Electrical worker grade 4 are, relevantly:
B.2.4 Electrical worker grade 4
(a) An Electrical worker grade 4 is an employee who:
(i)has worked for not less than one year in the industry or holds the equivalent experience and without limiting the scope of the work and to the level of the employee’s training is an employee who is accredited to perform:
· scaffolding or rigging; or
· is directly in charge of an electrical store and responsible for materials, ordering and purchasing; or
(ii)has worked for not less than one year as an Electrical worker grade 3 or has the equivalent experience in the installation of electronics equipment and who, under the minimum supervision of a tradesperson or electronics serviceperson:
· installs radio, communications and related equipment including antenna; or
· installs fire alarm or security alarm equipment; or
· installs, terminates and tests data and communication cabling; or
· inspects and tests fire alarms or security alarm equipment involving a range of responsibility beyond that of an Electrical worker grade 3 and works without assistance and supervision; or
…
(b)Provided that this person must not undertake tasks requiring the skills of a tradesperson.
(c)Included in this grade is the work of Purchasing clerk/storeperson and Electronic equipment installer level 2.
I have found that at all relevant times Attila was qualified and licensed to sell, install, maintain, repair and service security equipment. He was the proprietor of his own business which, I accept, involved him in attending sites for the provision of electrical services, the installation of cameras and rub cables, the programming of alarm systems and the setting up of sensors and alarm systems. That experience means that he is more qualified than a person who “is accredited to perform” scaffolding or rigging or to be in charge of an electrical shop who is required to work under “the minimum supervision of a tradesperson …” mentioned in connection with the Electrical worker grade 4 classification. Rather I find, based on his security industry licence, that Attila was a person who:
has successfully completed an appropriate trade course or who has otherwise reached an equivalent standard of skills and knowledge in communications/electronics
as referred to in the definition of an Electrical worker grade 5.
I find that at the relevant times Attila’s classification under the Award was Electrical worker grade 5.
CONTRAVENTIONS BY SIMS INTEGRATED
I find that SIMS Integrated owed Attila wages and that its failure to pay them contravened clauses 16, 17.2(a), 17.2(b), 22.1 and 26 of the Award and so s.45 of the FW Act.
SIMS Integrated’s related failure to make superannuation contributions for Imre breached cl.23.2 of the Award and also amounted to a breach of s.45.
Attila has alleged a breach of s.323 of the FW Act, and implicitly s.323(1), which requires that wages or salary be paid in full less permitted deductions at least monthly, but has also said that he agreed to have his wages held by Imre for the purposes of a family holiday. He did not attempt to reconcile these positions but he could not make a contract which provided for behaviour prohibited by statute: Nelson v Nelson (1995) 184 CLR 538 at 552; Miller v Miller (2011) 242 CLR 446 at 457 [24]; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 at 513 [23]. I consequently find that SIMS Integrated breached s.323.
Imre agreed that SIMS Integrated kept no employment records in relation to Attila. I find that, as a result, it breached s.535(1) of the FW Act by failing to maintain or keep prescribed employee records.
COMPENSATION
Annexed to Attila’s affidavit of 8 March 2017 was a document described as a spreadsheet which was said to particularise the details of his claim for compensation. According to the letter from his solicitors to the respondents’ solicitors dated 17 November 2016, it particularised unpaid wages amounting to $67,237.18 and unpaid superannuation contributions amounting to $4,919.05. A complete version of that document covering the period 1 May 2013 to 30 June 2015 was annexed to Attila’s affidavit of 31 August 2017. It particularised claims of unpaid wages amounting to $67,237.18 and unpaid superannuation contributions amounting to $4,919.05. Those were the amounts claimed in the statement of claim.
Prose corrections to the spreadsheet were made in Attila’s affidavit of 22 December 2017 and four days of claimed work abandoned.
Also annexed to Attila’s affidavit of 22 December 2017 were copies of numerous pages from his 2013, 2014 and 2015 diaries. They were annotated “not available”, “N/A” or similarly and were said to record when Attila was working with SIMS Integrated and unavailable to work with his own company or with his mother’s kennel business.
Attila’s claim was based on the 224 days of alleged work which he particularised in the spreadsheet and ultimately pressed. Once the four days which were not pressed are excluded from consideration, Attila’s diaries, on his interpretation, record him having worked for SIMS Integrated on 219 days in the 26 months covered by the spreadsheet. Generally those days coincided with the dates in the spreadsheet but on occasion they did not corroborate the spreadsheet or were not corroborated by it.
The invoices and communications documents in evidence do not span the whole period of the spreadsheet. The earliest is a communications document number C1038 dated 23 September 2013 and its related invoice 30212, and the latest is a communications document number C1251, dated 5 June 2017 and its related invoice 30582. In the period 15 September 2013 to 30 June 2015, the spreadsheet recorded 192 days of work once the four days not pressed are excluded. In the same period Attila’s diary recorded 184 days once the four days not pressed are excluded. The invoices and communications document recorded 49 instances of Attila attending SIMS Integrated worksites in that period, of which 24 occasions were not noted in the diaries.
There are too many differences and inconsistencies between the spreadsheet and the diary, and between them and the invoices and the communications documents, for me to have sufficient confidence in the accuracy of the spreadsheet or the diaries to rely on them to determine when Attila worked. I am also not persuaded by Attila’s uncorroborated evidence that that he worked a minimum of 6 hours every day he worked for SIMS Integrated.
Presumably foreseeing that possibility, Attila annexed to his last affidavit an additional spreadsheet (“New Spreadsheet”) in respect of the period 3 August 2013 to 26 June 2015. In addition to numerous dated entries it also cited two undated entries. The New Spreadsheet was expressed by Attila to be a summary of attendances at SIMS Integrated worksites that could be identified from:
(a)text messages;
(b)SIMS's Communications Documents;
(c)Invoices issued by SIMS to Sanitarium and Colgate;
(d)evidence filed by Imre Hornyak in these proceedings; and
(e)sign-in records produced by Sanitarium and Colgate which record me entering these sites.
This document records 72 such attendances identified by date and I find that Attila did attend SIMS Integrated worksites on most of those dates and for the periods identified in respect of those entries. However, some particular observations are necessary. First:
a)I allow 10 hours’ work on 24 September 2013 because that is what invoice 30212 charged for work at Sanitarium on that day; and
b)I allow 2 hours’ work on 31 October 2014 because that is what communications document C1486 records were the hours engaged at Colgate on that day.
Secondly, there is no documentary evidence of the time engaged on 24 February 2014, 1 April 2014 and 24 September 2014 and so the claims in respect of those days are rejected. Further, I do not accept the two entries that are not dated. The source documents underlying those entries were part of Attila’s evidence and should have been tendered in a form which would have permitted a determination to be made whether Attila worked on a particular day in the period under consideration. The copies in evidence do not permit a date to be assigned to the activities in question. As they do not allow that, I place no reliance on them and reject the related particulars of claim.
In addition to claiming time spent on-site, Attila also claimed travelling time in respect of his visits to the Sanitarium site on the Central Coast. However, he did not identify the provision or provisions of the Award he was relying on to mount that claim. In the absence of such particularisation, that aspect of the claim cannot succeed.
Attila is entitled to be compensated for the wages and superannuation contributions that should have been paid or made in respect of the time worked as set out in the New Spreadsheet in respect of the dated entries but subject to the qualifications I have identified. The parties are to consult and bring in consent orders particularising the amounts to be paid by SIMS Integrated, which are to be calculated in accordance with the Award as it stood from time to time.
ACCESSORIES
Attila alleged that Imre and Cathy are liable to him as accessories to the contraventions I have found SIMS Integrated committed. He contends that they:
- Aided, abetted or procured the contraventions;
- Induced the contraventions; and/or
- Were knowingly concerned in the contraventions.
As discussed in Yorke v Lucas (1985) 158 CLR 661 at 667, provisions such as s.550(2)(a) use terms from the criminal law, namely the words “aided, abetted, counselled or procured” which, in that branch of the law, are used to designate participation in a crime either as a principal in the second degree or as an accessory before the fact. Such conduct requires intent in order that the offence can be proved. “Aiding” and “abetting” refer to a person who is present at the time of the commission of an offence and “procuring” refers to a person who, although not present at the commission of the offence, is an accessory before the fact: Giorgianni v The Queen (1985) 156 CLR 473 per Gibbs CJ at 480; Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267 at [115]. The High Court noted in Yorke v Lucas that a person will be guilty of the offences of aiding and abetting or counselling and procuring the commission of an offence only if he or she intentionally participates in it, in the sense of knowing of the essential matters going to make up the offence, whether or not aware that they amount to a crime.
In Yorke v Lucas the High Court said of provisions such as 550(2)(a):
Notwithstanding that [the provision] operates as an adjunct to the imposition of civil liability, its derivation is to be found in the criminal law and there is nothing to support the view that the concepts which it introduces should be given a new or special meaning. (at 669)
Before a person can be found liable under s.550(2)(c) of the FW Act for having been “knowingly concerned” in a contravention it must be proved that that person had knowledge of the essential facts constituting the contravention and was an intentional participant in it, the necessary intent being based on knowledge of the essential elements of the contravention: Yorke v Lucas at 670; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 109ff [334]ff, 150 [435]. The accessory need not know that the conduct constituted a contravention: ACCC v Giraffe World at 346 [186]; Rural Press v ACCC at 282, 283 [159], [160]; Heydon v NRMA at 109 [334]. Wilful blindness in relation to an element of a contravention will be treated as equivalent to knowledge of it: Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 at [135]; Giorgianni v The Queen at 487-488.
I find that both Imre and Cathy knew that Attila was working on SIMS Integrated worksites, Imre because he was there and Cathy because she saw the communications documents and, I infer, she learned through her interactions with Imre and Attila.
I also find, as he conceded himself, that Imre was the controlling mind of SIMS Integrated, being its chief operative and decision-maker, the one who made all decisions regarding the staffing of SIMS Integrated and the one who gave directions to others who worked for the company. Imre said in his oral evidence that he was aware of the existence of the Award and also that he knew no records were kept in relation to Attila, which he said was because Attila was not an employee. He also said that Attila had not been paid, in accordance with s.323 or at all, and that no superannuation contributions had been made for him. In the circumstances I infer that Imre knew these things during and after Attila’s casual employment with SIMS Integrated and so, given his role in the company, was knowingly concerned in its failures in this connection.
Cathy agreed she was sole director during the time that Attila says he was working but not paid but I accept her evidence that she took on the roles of director and secretary because she was the only person available to sign the relevant forms. The totality of the evidence indicates that her role was a limited one and does not support a conclusion that she exercised any executive control, regardless of whatever ostensible authority she may have had on occasion. Moreover, there was no evidence of her having been involved in any decision-making concerning payments to Attila or of having been aware of the Award.
In his affidavit of 24 April 2017, Imre deposed that Cathy had had no dealings with the day-to-day running of SIMS Integrated, including decisions about staff and workload; she managed the accounts. Nor was it demonstrated that Cathy had any responsibility for maintaining employee records, such that the absence of records concerning Attila could be said to have been an informed failure on her part.
In the circumstances I find that Cathy was not an accessory to SIMS Integrated’s contraventions.
DECLARATIONS
Consequently, there will be declarations that:
a)SIMS Integrated contravened s.45 of the FW Act by failing to pay Attila wages in accordance with the Award or at all;
b)SIMS Integrated contravened s.45 of the FW Act by failing to make superannuation contributions on Attila’s behalf during the Employment;
c)SIMS Integrated contravened s.323 of the FW Act by failing to pay Attila wages in full at least monthly for work performed during his employment with it;
d)SIMS Integrated contravened s.535 of the FW Act by failing to maintain or keep employee records prescribed by the FW Regulations; and
e)Imre was involved in SIMS Integrated's contraventions of ss.45, 323 and 535 of the FW Act and so is taken to have also contravened those provisions.
There will also be orders that:
a)SIMS Integrated pay compensation to Attila in a sum calculated in accordance with these reasons;
b)SIMS Integrated pay to Attila interest on that amount calculated in accordance with s.547 of the FW Act and r.26.01 of the Federal Circuit Court Rules 2001;
c)in the event that SIMS Integrated fails to pay within 28 days of the orders or such longer time as may be agreed or ordered the amounts ordered, or any part of them, Imre is, within 28 days of the expiry of that period, to pay to Attila the amount or amounts outstanding; and
d)within 28 days the parties bring in a draft minute of order quantifying the compensation and interest SIMS Integrated, or in default Imre, is to pay Attila.
The matter will be listed for directions on 24 July 2020.
I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 3 July 2020
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