Huynh v Minh Truong and Thi Thu Hoang Pham t/as Le Bon Bakehouse - [2018] WADC 39

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HUYNH -v- MINH TRUONG & THI THU HOANG PHAM t/as LE BON BAKEHOUSE [2018] WADC 39
CORAM:   JUDGE BOWDEN
HEARD:   6 & 7 MARCH 2018
DELIVERED          :   26 MARCH 2018
FILE NO/S:   CIV 4144 of 2016
BETWEEN:   KIM CHAU HUYNH
Plaintiff
AND
MINH TRUONG & THI THU HOANG PHAM t/as LE BON BAKEHOUSE
Defendants
AAI LIMITED t/as GIO
Third Party

Catchwords:

Is a person 'work trial' a worker within the Workers' Compensation and Injury Management Act 1981 (WA)

Legislation:

Industrial Relations Act 1979 (WA)
Minimum Conditions of Employment Act 1993 (WA)
Occupational Safety and Health Act 1984 (WA)
Occupiers' Liability Act 1985 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Plaintiff is a worker within the meaning of the Workers' Compensation and Injury Management Act 1981 (WA)

Representation:

Counsel:

Plaintiff	:	Mr T Offer
Defendants	:	Mr N Morrissey
Third Party	:	Mr N Morrissey

Solicitors:

Plaintiff	:	Vertannes Georgiou
Defendants	:	Hammond Legal
Third Party	:	Hammond Legal

Case(s) referred to in decision(s):

Ailakas v Olivero [No 2] [2014] WASCA 127
Airways Corporation of New Zealand Limited v Geyserland Airways Ltd [1996] 1 NZLR 116
Australian Builders Labourers Federated Union of Workers (WA Branch) v Pacesetter Homes (1994) 56 IR 51
Dare v Dietrich (1979) 26 ALR 18
Dietrich v Dare (1980) 30 ALR 407
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Evans v Secretary, Department of Families, Housing, Committee Services and Indigenous Affairs [2012] FCAFC 81
Klevens v Cappello Rowe Lawyers [2017] FWC 5126
Mirrabooka Fresh Pty Ltd v Al Jabber (C23-2009)
Personnel Contracting Pty Ltd t/a Tricord Personnel v The Construction, Forestry, Mining & Energy Union Workers [2004] WASCA 312
Pirt Biotechnologies Pty Ltd v Pirtferm Ltd [2001] WASCA 96
Popiw v Popiw [1959] VR 197
Rowe v Capital Territory Health Commission; Cooney v Capital Territory Health Commission [1982] 39 ALR 39
Shook v Munro and Davidson [1947] 3 DLR 271
Ward v Byham [1956] 2 All ER 318
Williams v O'Keefe [1910] AC 186

JUDGE BOWDEN:

The basis of the plaintiff's claim

The defendants operated a bakery in Morley. The plaintiff commenced a work trial at the bakery on or about 4 June 2016. On the morning of 5 June 2016, during the course of the work trial, the plaintiff fell and sustained a fracture to her right wrist.
The plaintiff sues the defendants in negligence and for the alleged breach of duties owed by them as occupier of premises pursuant to the Occupiers Liability Act 1985 (WA) (OLA) and/or breach of statutory duty under the Occupational Safety and Health Act 1984 (WA) (OSHA) as a result of an incident occurring on 5 June 2016.

The preliminary issue

A preliminary issue has arisen in that the defendants say that at the time of the incident the plaintiff was a worker pursuant to s 5 of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA).
Section 5 of the WCIMA provides:
…
worker does not include a person whose employment is of a casual nature and is not for the purpose of the employer's trade or business, or except as hereinafter provided in this definition a police officer or Aboriginal police liaison officer appointed under the Police Act 1892; but save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing …
If the plaintiff is a worker within the provisions of the WCIMA, it is not disputed that damages could not be awarded to her because the WCIMA provides that before she is entitled to any award of damage from this court, she must have made an election to retain her right to seek damages pursuant to the WCIMA and that election must be registered by the director and she is be required to have establish a degree of permanent or whole of person impairment is at least 15% s 93B, s 93C, s 93K(4) WCIMA.
It is not disputed by the plaintiff that if Ms Huynh is a worker, the effect of the WCIMA is that she would not be entitled to bring these proceedings at this stage. If on the other hand she is not a worker, she is able to bring and pursue these proceedings.

The evidence

Five witnesses were called. In assessing the credibility of the various witnesses I am entitled to accept all or part of what a witness says.
I have made allowance for the fact that all of the witnesses, except Ms Pham, gave evidence with the assistance of an interpreter as English was not their first language.

The evidence called by the plaintiff

Kim Chau Huynh

Ms Huynh gave evidence with the assistance of an interpreter. She was born in Vietnam in 1961 and came to Australia in 1985. After she arrived in Australia from Vietnam she worked in a variety of occupations including making blinds in a factory and working in a lunch bar serving customers which involved operating the till and preparing food and salads.
Ms Huynh also worked in a restaurant as a dishwasher and at two or three coffee lounges where her duties included serving customers and operating the till. She also worked in a fish and chip shop owned by her former husband, looking after customers and taking orders. Ms Huynh's evidence was that she had significant experience in food services.
Ms Huynh had previously participated in work trials on seven to eight prior occasions and had only once previously been paid for a work trial. She said that generally the work trials lasted for one or two days, although some had lasted up to one week.
Ms Huynh said she heard from a friend who worked at the bakery that the bakery might be looking for a customer service worker. At the time she was not working and on a Newstart allowance.
Ms Huynh said she went to the bakery on Saturday, 4 June 2016 at 9.00 am and met Mr Truong and told him she was interested in the customer service job. She said Mr Truong asked about her work experience and how long she had been in Australia and then asked her to start a work trial from 9.00 am to 1.00 pm on the Saturday and Sunday to which she agreed.
Ms Huynh said Mr Truong did not say anything about being paid for the work trial and did not ask for her bank accounts, superannuation funds or tax details. She did not ask to be paid for the work trial as she did not think she had the right to be paid for the trial.
Ms Huynh said Mr Truong took her to see a lady at the front counter and said that lady would show her what to do. The lady showed her how to serve customers and taught her the names of the different types of bread and their prices, where the bread was stored, where to put the bread on the shelves and how to slice the bread. She was not shown how to operate the till, however, was told the till was open and to calculate how much was owing to a particular customer in her head or on a calculator and give the change to the customer.
She said when she was about to finish work on the Saturday the lady directed her to another area of the bakery where she was shown how to fill the pie makers.
Ms Huynh said she worked on Saturday until about 1.00 pm and on Sunday started work at 9.00 am. She said there were two young girls serving the customers and she learnt things from them. They showed her what to do. They asked her to do some bread slicing and one of the young girls showed her how to operate the slicer and package the bread into the plastic bags. She said there were two or three people out the back. She said if there were no customers, she was asked to go out the back and pack the bread into smaller packages. She was shown what to do.
Ms Huynh suffered her injury on Sunday at about 9.42 am. She went to hospital and later spoke to Mr Truong's wife and when she told her that she had suffered a fracture, Ms Truong said 'goodbye'.
Ms Huynh said on 2 July 2016 she sent a text to Mr Truong asking him for his name and phone number and later received those details from him.
Ms Huynh said in late July 2016 she gave Mr Truong a form, which she had received from the hospital, to complete. Mr Truong asked her to leave it with him and said once it was complete he would return it to her. Not long after this he rang her and came to her house and gave her the form. He asked her what she needed the form for and when she replied that it was for her lawyer, he told her that she did not need any legal help as it would be costly and she should wait for her hand to get better and he would give her some work. Ms Huynh said she had not spoken to Mr Truong in person since then.
Ms Huynh said she underwent surgery in December 2016 and on 8 February 2017 (exhibit 2) sent Mr Truong a SMS text providing her bank account details and asking how he was, telling him that her hand was sore and that she could not drive and asking for him to pay her for the five hours she worked during the work trial. She received no response. Ms Huynh said she used polite language in the text to see what Mr Truong's response would be and sent the text even though she did not expect any payment for the work trial. She said that when she sent the text she was upset and stressed because Mr Truong had not been paying any attention to her injuries and was ignoring her and she felt aggrieved that she had suffered an injury for which she had not been compensated.
Ms Huynh agreed that the text was sent after the writ had been issued. In her affidavit of 11 May 2017 (exhibit 1) she referred to her actions in sending the text as 'demanding' that Mr Truong pay her for the work.
Ms Huynh went to some lengths to paint Mr Truong as a person who did not care about the extent of her injuries. In addition to this, her evidence had some inconsistencies. She agreed that the effect of her evidence was that she went to the bakery on the Saturday and spoke to Mr Truong and started a work trial that day. She agreed that in her affidavit (exhibit 1) she said she went to the bakery on a date she thought was 3 June and spoke to Mr Truong and was requested to attend on 4 and 5 June for a work trial. That clearly implies she attended the bakery and spoke to Mr Truong on a different date to the commencement of the work trial.
When challenged over the inconsistency, Ms Huynh said she went to the bakery on Friday but did not speak to Mr Truong, then returned on the Saturday and spoke to Mr Truong and started the work trial that day. Later in her evidence she said she went to the bakery on the Friday but could not remember if she spoke to Mr Truong that day. I acknowledge these inconsistencies but, at the end of the day, it has no material impact on my acceptance of Ms Huynh's evidence on the matters outlined below. On these matters I find that she gave her evidence in a straightforward, credible manner and I accept her evidence.
I accept Ms Huynh's evidence that she spoke to Mr Troung on Saturday, 4 June 2016, and that it was agreed that a work trial would start that day and that she agreed to attend the work trial on both Saturday and Sunday from 9.00 am to 1.00 pm. I also accept her evidence that there was no discussion in relation to payment of wages for the work trial. I also accept her evidence as to what occurred during the course of the work trial.
Minh Truong
Mr Truong is in partnership with his wife in the Le Bon Bakehouse business. Mr Truong gave evidence with the assistance of an interpreter. He was born in Vietnam in 1960 and came to Australia in 1980.
He said that generally there were two staff working out the back of the bakery making the products and one working at the front counter except in busy periods where they would have two persons on the front counter. The bakery was open seven days per week.
He explained that he would find staff by talking to friends in the Vietnamese community and they would spread the word around that he was looking for staff.
Mr Truong said that he would put potential employees on a work trial of two weeks before offering them full‑time work so that he could see whether they were suitable. During the work trial they were paid award rates, but later if they were suitable for the work and worked hard they received an increased payment.
Mr Truong said that his niece who had been working with him for a period of time intended to pursue employment more suitable to her qualifications and he was looking to replace her. He was told by one of his workers that Ms Huynh was looking for a job and told the worker to bring her in.
Mr Truong said he first met Ms Huynh on Saturday, 5 June 2016 at about 9.00 am. He spoke to her and she told him she had experience in fish shops and lunch bars. He told her that she could start a work trial the next day.
In evidence-in-chief he said that she might have asked him about how much she would be paid and he replied 'award rates'. Under cross-examination he agreed that when he spoke to Ms Huynh on the Saturday all they talked about was starting the work trial the following day and said he could not recall talking about wages.
In any event, he told Ms Huynh she could start the following day and the work trial was for two weeks from 9.00 am to 1.00 pm or 2.00 pm or 3.00 pm, depending on the work rate. He denied that it was a two-day work trial.
He agreed that in the initial Saturday meeting he assigned a female member of staff to look after Ms Huynh and introduced her to that person.
Mr Truong said when he left the bakery about lunchtime Ms Huynh was still there.
He said he did not ask her for a tax file number or superannuation or bank details because he was going to do that on the Monday. He acknowledged that he did not make any record in the business that Ms Huynh was on a work trial and that he had not paid her for the work trial.
Mr Truong said he was not present on the Sunday when Ms Huynh was injured but he was advised of her injury and contacted his insurance company. One or two days later he rang her and asked her how she fell and injured herself and how her injury was going.
Mr Truong said he subsequently saw Ms Huynh when he went to her house and gave her some paperwork.
Mr Truong said the business had workers' compensation and public liability insurance. He agreed he notified his public liability insurer of Ms Huynh's claim on the Monday. When asked why he made a claim on his public liability insurance he said he knew he was being sued by Ms Huynh for public liability and he followed his lawyers' and insurance brokers' advice.
Mr Truong said when he received a text from Ms Huynh effectively asking for money for the work trial, he did not pay her or respond because of advice he had received from his advisors.
Mr Truong said he knew that his insurance premiums were based on the business turnover which was about $600,000 and accepted that he told the insurance company the turnover was only $100,000 ‑ $250,000 so as to obtain cheaper premiums. He agreed that his staff would leave the till in the open position and work out the customers' charges and change either manually or using a calculator. He agreed that the effect of this was that he did not accurately record the business' turnover to the Australian Taxation Office (ATO). He also agreed that he had been happy to lie to those organisations to obtain a benefit for himself.
Mr Truong said in his evidence that there were five people on his books on 16 June 2015, but when he was taken to the wages book he agreed that it referred to only three people. He could not offer any explanation for this other than it was his sister and the accountant that looked after the paperwork. He agreed there were discrepancies between his evidence as to the hours some of his employees worked and the hours shown in the records. However, in re‑examination he was taken to PAYG payment summaries for five workers for the year ending June 2016 which he had produced to the ATO.
I do not accept Mr Truong's evidence that the work trial was for two weeks or his evidence as to the starting time for the work trial.
I attach no significance to the fact that Mr Truong notified his public liability insurer rather than the workers' compensation insurer, nor do I attach any significance to the fact that he did not respond to the text he received from Ms Huynh in February of 2017.
Mr Truong's credibility was significantly damaged by his admissions that he would lie about his business turnover both to reduce his insurance premium and for taxation reasons and thereby obtain the benefits for himself. The wages book of the business was demonstrated to be inaccurate. His evidence as to the hours worked by some employees and the hours recorded in the business books were also shown to be inaccurate.
Mr Truong has shown that he is a person who is prepared to tell lies on some matters if he perceives he will obtain a financial advantage for himself. In those circumstances I am not persuaded to accept his evidence.
Where his evidence conflicts with Ms Huynh, I prefer the evidence of Ms Huynh.
Thi Thu Hoang Pham
Ms Pham is the wife of Mr Truong and a partner in the bakery. She did not require the services of the interpreter.
At the relevant time she was working in the Wattle Grove and Midland stores, not the Morley store.
Ms Pham said that when new staff were taken on she liked to see that person and put them on a two-week work trial. At the end of the two weeks, if she considered the person suitable, she would keep them. If they were not, she would pay them for the two-week work trial.
She agreed in cross‑examination that the practice relating to the Morley store was left to her husband. If Ms Pham's evidence was to show that there was some system whereby work trials would last for two weeks and thereby support Mr Truong's evidence in this regard, it failed. Firstly, Mr Trinh's evidence was that his work trial was for one day. Secondly, Mr Do said his work trial was for three days. Thirdly, Ms Pham accepted that arrangements relating to the Morley store were left to Mr Truong. Fourthly, Ms Huynh's evidence, which I accept, was that the work trial was for two days.
Ms Pham said after the incident occurred she called Ms Huynh twice to ask how she was going and basically was told that her hand was sore, that she had been to the hospital and had seen a specialist.
Mrs Pham gave her evidence in a credible, straightforward manner, however, her evidence in the overall scheme of things is of little relevance and her evidence did not impact on any material issue in the trial.
Hung Quoc Trinh
Mr Trinh gave evidence with the assistance of an interpreter. He was born in Vietnam in 1991 and came to Australia in 2009.
Mr Trinh had been working at the Morley bakery for about three years, initially on a part‑time basis and on a full‑time basis since July 2015. Mr Trinh said that he had a one-day work trial and was then told that he was to start work full‑time. He said he was paid for the one‑day work trial. Mr Trinh's evidence that he was paid for the work trial is irrelevant. If it was adduced to show it must have been Mr Truong's intention to pay Ms Huynh for her work trial, it is irrelevant as Mr Truong's subjective intentions at the time of Ms Huynh's work trial are irrelevant.
If the evidence was adduced as somehow supporting Mr Truong's evidence that he discussed wage payment with Ms Huynh, the evidence fails in that regard. Firstly, it does not follow that because he paid Mr Trinh for his work trial he discussed paying Ms Huynh for her work trial. Secondly, although Mr Truong paid Mr Trinh, there is no evidence that he agreed to do so at the time they discussed a work trial as opposed to paying him once he decided to give him the job. Thirdly, Mr Truong's evidence ultimately was that he could not recall if he discussed paying Ms Huynh for the work trial. Fourthly, I accept Ms Huyhn's evidence that there was no discussion with Mr Truong about payment for the work trial.

Mr Trinh recalled that when Ms Huynh was working she was packing bread rolls.
When cross-examined about his working hours in June 2016, Mr Trinh said he worked six days per week, having each Tuesday off. He said that he would start at 3.00 am and, whilst the finishing time varied, it was normally about 10.00 am or 11.00 am. He said there was no difference in the workload in summer or winter and the bakery was as busy in summer as it was in winter.
He agreed that he completed wage records which recorded that he worked eight hours five days per week, being a total of 40 hours each week. He initially offered the explanation that some days he worked less than eight hours per day and he was just trying to make it simple so he would put five days per week at eight hours per day rather than trying to recall what he actually worked each day.
He subsequently agreed that Mr Truong had told him to record it that way.
He agreed that he was given permanency after a one-day work trial. He agreed with the proposition that people at the front desk do not need the same skills as a baker, which was an important job and required skills.
I found Mr Trinh's evidence somewhat evasive. He spent some time justifying why he completed wage records saying he worked eight hours per day five days per week when his evidence was that he worked six days per week, normally starting at 3.00 am and finishing around about 10.00 am or 11.00 am. Ultimately he agreed with, and accepted, the proposition that he recorded the books in that manner because Mr Truong had told him to record it that way.
I did not find Mr Trinh to be a persuasive witness, however, he gave evidence on matters which are not material to the issues to be determined by me.
Huy Than Do
Mr Do gave evidence with the assistance of an interpreter. He was born in Vietnam in 1988 and came to Australia in 2009.
Mr Do is currently employed as a baker at the Morley bakery. He obtained the position after seeing an advertisement on Facebook. He was interviewed by Mr Truong who asked about his experience and which days he could work.
Mr Do was placed on a work trial and then employed. He said Mr Truong paid him for the hours he worked during the work trial. Mr Do's evidence that he was paid for the work trial is irrelevant. If it was adduced to show it must have been Mr Truong's intention to pay Ms Huynh for her work trial. It is irrelevant as Mr Truong's subjective intentions at the time of Ms Huynh's work trial are irrelevant. If the evidence was adduced as somehow supporting Mr Truong's evidence that he discussed wage payment with Ms Huynh, the evidence fails in that regard for the reasons dealt with when discussing Mr Trinh's evidence on this point.
Mr Do said his work trial was for three days at eight hours per day totalling 24 hours. When taken to his affidavit of 4 October 2017 in which he stated that he 'participated in a one week work trial from 18 February 2017 and the defendants paid me $19 per hour and I worked 33 hours during that week', Mr Do said the 33-hour figure included the 24-hour work trial which he insisted was only for three days.
He agreed that his affidavit was incorrect insofar as it referred to participating in a one-week work trial.
He agreed that a baker's position was a skilled job and that he was given the full-time position after a three-day work trial.
I accept Mr Do's explanation that the affidavit of 4 October 2017 was perhaps somewhat poorly worded and I accept his explanation that the 33‑hour figures he referred to in the affidavit included the 24-hour work trial period. Mr Do gave his evidence in a straightforward manner and I accept his evidence, however, it did not relate to any material matter.

Agreed evidence of Ms Van

It was agreed by the parties that Ms Van was working at the bakery on 5 June 2016, however, she does not appear in the tax records as having worked for that financial year.

The defendants' submissions

The defendants argue that Ms Huynh was a worker within the definition of the WCIMA and working under a contract of service.
The defendants say that all of the criteria necessary to establish a contract are established. They say there was an offer by Mr Truong of a work trial which was accepted by Ms Huynh.
Consideration, or mutuality of obligation, is established as Ms Huynh was required to provide her labour and Mr Truong agreed to pay 'award rates' for her services. The defendants say that even if I do not accept Mr Truong's evidence in this regard and find that there were no discussions about payment of wages, there was still consideration moving from Mr Truong because the Minimum Conditions of Employment Act 1993 (WA) obliged Mr Truong to pay Ms Huynh the minimum wage as she was an employee within that Act which incorporates the definition of an employee provided in s 7 of the Industrial Relations Act 1979 (WA) and Ms Huynh met that criteria.
In any event, the defendants say consideration was provided as they agreed to provide their premises and staff to enable Ms Huynh to demonstrate her proficiency during the work trial.
The defendants say it was a commercial arrangement and not a benevolent arrangement as in Dietrich v Dare (1980) 30 ALR 407, and the inference can be drawn that the parties intended to create legal relations. Both parties had commercial motives for entering into the agreement. Ms Huynh was unemployed and wanted a job. Mr Truong needed another worker as his niece was leaving his employ and Ms Hyunh was being assessed as the potential replacement.
The defendants say the whole idea of the parties attending or entering into the work trial was to create the legal obligations of a work trial prior to a longer employment contract being considered. Mr Morrissey says the agreement was more than just an informal arrangement whereby the capacity to enter into a contract was to be addressed and a formal employment contract, albeit of short duration, was entered into.
Mr Morrissey referred to Commissioner McCann's dicta in Mirrabooka Fresh Pty Ltd v Al Jabber (C23-2009), that a work trial of short duration is not uncommon and the duration of the contract is no bar to the formation of a contract or that contract being a contract of service.
Mr Morrissey pointed out that there was an obligation on Ms Huynh to perform work which was of benefit to the bakery. Ms Huynh's evidence was that she was serving customers and, in light of her experience, she required little supervision in this regard, wrapping bread rolls, packing bread, filling the pie maker and cutting the bread.
Mr Morrissey acknowledged that whilst some training and an element of learning was provided, as Ms Huynh was taught how to slice bread and fill the pie maker, her contract cannot be characterised as one of simply undergoing training or familiarisation by observing and/or learning because she was required to use the expertise that she had built up in customer service and a key part of her participation in the work trial was that she performed work which was of benefit to the bakery. While Mr Morrissey accepts that the work performed was low skill, he pointed out that Ms Huynh was experienced in customer service and Mr Truong had specifically asked her about her work experience and she was required to use her customer service experience in the defendants' bakery.
As to the remuneration question, Mr Morrissey points out that even if wages were not discussed, Ms Hyunh was entitled to be paid for the work she performed and her demand on Mr Truong to pay her for the five hours of work is contrary to her now professed position in court that she did not think she had any entitlement to the work that she performed.
Further, Mr Morrissey argues that Ms Huynh's text of 8 February 2017 was a demand for payment for the work that she performed and is consistent with Mr Truong saying he would pay award wages and shows Ms Huynh understood that Mr Truong was required to pay her for the work trial and the inference can be drawn that she believed she was entitled to be paid for the work trial.
Mr Morrissey says that Ms Hyunh's explanation for sending that text, provided both in her affidavit of 11 May 2017 (exhibit 1) and in her evidence, that she felt aggrieved, stressed and upset that she had sustained a serious injury during the work trial and had not been compensated and was being ignored by Mr Truong, must be viewed in the light that by the time she swore that affidavit she had solicitors acting for her, a written statement of claim had been filed and that she knew the live issue was whether or not she was a worker within the WCIMA.
Mr Morrissey says the plain meaning of the text is that she was demanding payment of wages as she believed she was entitled to them and is clear evidence that she had understood that she was to be paid for the work trial.
I reject this submission. The text was sent on 8 February 2017. The agreement was entered into in June 2016. It was doubted by the chief justice in Ailakas v Olivero [No 2] [2014] WASCA 127, that terms used in a communication made more than 2 1/2 years after the arrangements could be legitimately used for the purpose of drawing an inference as to the intention of the parties at that earlier time and that the communication in question in that case did nothing more than reveal the subjective beliefs of one of the parties at the time the email was sent and was therefore irrelevant to the intention of the parties 2 1/2 years earlier. In my view, similar reasoning prevails.
A text sent by one party 20 months after the agreement was entered into is really only relevant to establish the subjective belief of the party at the time the text was sent and is therefore irrelevant. I do not draw the inference sought by Mr Morrissey.
Mr Morrissey says there was certainty of essential terms. It was to be a short work trial. Ms Huynh was told the length of the trial, the purpose of the trial, when to commence the trial and the hours to be worked. Ms Hyunh was entitled to be paid for the work she performed pursuant to the Minimum Conditions of Employment Act 1993 (WA).
Further, Mr Morrissey points out that Ms Huynh's own pleadings state that she was working under the direction of the defendants at their premises and using their equipment. Ms Huynh did not have any autonomy as to the way she performed her task. She was working physically in the bakery and being instructed in some tasks and under the control of the defendants' staff and was an integral part of the defendants' business and was expected to be productive during the course of the work trial.
Mr Morrissey says that all the criteria for the formation of the contract, being agreement, consideration, intention to create legal relations and certainty of essential terms have been established and the contract was a contract of service and Ms Huynh was a worker under the WCIMA.

The plaintiff's submissions

Mr Offer submits that Ms Huynh entered into an informal arrangement not a contract whereby her capacity to enter into a contract of service at a later date was to be assessed.
In relation to the first question whether a contract had been formed, Mr Offer agreed an offer had been made and accepted and that there had been an agreement of some sort.
Mr Offer said there was no discussion or obligation on the defendants to provide Ms Huynh work if she successfully completed the work trial and wages for the work trial were not discussed and therefore there was no consideration moving from the defendants. He said there was no legal obligation for payment to be made for Ms Huynh's services.
Additionally, Mr Offer submitted that there was no certainty of essential terms. Remuneration was not discussed, the parties were not aware of the totality of their obligations in relation to superannuation, issues such as whether the employment was casual or part-time were not dealt with and therefore all the essential terms of a contract were not established.
Further, Mr Offer argued that there was no intention by the parties to create legal relations and no expectation by either party that they were entering into an enforceable arrangement. Mr Offer submitted that there was no obligation on the defendants to pay the plaintiff and she was not paid and that the sole purpose of the informal arrangement was for the defendants to assess whether an employment relationship would be entered into at a later date.
Mr Offer submitted that the longer a work trial continued, the more likely it was that the person would be an employee but, in this case, the work trial existed for only two days.
Mr Offer submitted that the evidence established that Ms Huynh was working under supervision and being shown how to fill the pie maker and how to use the bread cutting machine and how to wrap bread and instructed on the nature of the various types of bread, their prices and where it was shelved. He said Ms Huynh was not adding value to the business, on the contrary, she was a detriment to the business because she required supervision.
Mr Offer said the defendants were not obtaining significant operational benefit from Ms Huynh's presence other than to make the assessment as to whether they would enter into a contract of service with her at a later date. He pointed to Mr Truong's evidence that, generally, the bakery ran with two people in the back and one on the front counter and only two on the front counter during busy periods. He pointed out that when Ms Huynh was working there were two others on the front counter and she was, in essence, the unproductive third wheel.
Mr Offer said Ms Huynh was learning and developing skills.
Mr Offer argued that the combination of the factors referred to above pointed to the agreement being an informal arrangement for the defendants to assess whether Ms Huynh was suitable to enter into an employment contract at a later date.
In those circumstances he said the agreement did not constitute a contract of service and Ms Huynh was not a worker for the purposes of the WCIMA.
Mr Offer relied on the High Court decision in Dietrich v Dare. In my view, that case is distinguishable on its unusual facts. The High Court (Gibbs, Mason, Wilson JJ & Aickin J concurring) acknowledged the unusual circumstances in that case and found a lack of mutuality of obligation in that there was no obligation on Mr Dietrich to perform any work at all and Mr Dare did not receive any assurance or benefit for which the payment of money could be related meant the contract was not a contract of service.
In addition, they endorsed the reasoning of the Full Court of the Federal Court in Dare v Dietrich (1979) 26 ALR 18, where Muirhead J determined that Mr Dietrich alone decided where to start work, the method, times and hours of work, the materials he required, how he would do the work and the duration of the arrangement essentially allowed him to work if, when and how he wished and placed no obligation upon him to do any work in any capacity. The sole obligation imposed upon Mr Dare, to pay Mr Dietrich, was independent of the outcome of the work trial. Deane J found that the charitable motivation of Mr Dare and the lack of any contractual obligation upon Mr Dietrich to perform work in a workmanlike manner were decisive. Lockhart J found the charitable nature of the arrangement and the ability of Mr Dietrich to determine the order and method of performing the work meant the arrangement was not a contract of service.
I have found there was mutuality of obligations in this case. Ms Huynh was to perform work. Mr Truong agreed to provide a workplace for the work trial to be conducted in and to form an assessment as to her suitability for employment. Further, he had the legal obligation to pay the minimum wage. It was a commercial arrangement for a work trial in commercial premises. It was not a charitable or rehabilitative arrangement.

Finding of facts

The factual findings I make are as follows:
1.Ms Huynh attended the defendants' Morley bakery and spoke to Mr Truong on Saturday, 4 June 2016 about the prospects of obtaining employment at the bakery serving customers.
2.Ms Huynh had considerable experience in customer service positions.
3.The defendants, through Mr Truong, were prepared to provide Ms Huynh with a work trial in the bakery serving customers so they could assess her suitability for further employment.
4.Ms Huynh's motivation to apply for the job was commercial. She was on Newstart allowance and wanted work. The defendants' motivation was commercial. A member of its staff was leaving and they wished to replace her.
5It was agreed on Saturday, 4 June 2016 that Ms Huynh would perform a work trial at the defendants' Morley bakery on Saturday, 4 and Sunday, 5 June 2016. There was no discussion of payment for the work trial. The work trial was to be conducted from 9.00 am to 1.00 pm on those days.
6.Ms Huynh worked on the Saturday at least from 9.00 am until 1.00 pm and on the Sunday from at least 9.00 am until approximately 9.34 am (the time of the fall).
7.Whilst working at the bakery, Ms Huynh was involved in a range of activities including customer service, slicing bread, filling the pie maker, wrapping bread and bread rolls.
8Whilst working at the bakery, Ms Huynh was under the supervision of the defendants and was shown some of the tasks she performed but knew from her experience how to serve customers.
9.The purpose of the work trial was to assess Ms Huynh's suitability for employment in a customer service role in the bakery.

Determination

The first issue to determine is whether or not there was a contract. The second issue is whether or not it was a contract of service.

Was there a contract?

A contract is not required to be in writing, it can be a purely verbal agreement.
A legally enforceable contract requires an agreement, valuable consideration moving between the parties, certainty of all essential terms, and the parties must have an intention to create legal responsibilities towards each other.
It is not disputed that there was an agreement between the parties. There was an offer by Mr Truong to provide a work trial and that offer was accepted by Ms Huynh.
In relation to consideration, there was clearly valuable consideration moving from Ms Huynh, she was providing her labour during the work trial. There was also valuable consideration moving from the defendants' as they were obliged pursuant to the Minimum Conditions of Employment Act 1993 (WA) to pay Ms Huynh the minimum wage for the work trial.
Section 10 of the Minimum Conditions of Employment Act 1993 (WA) provides:
Entitlement of employees to be paid minimum rate of pay
An employee is entitled to be paid, for each hour worked by the employee in a week, the minimum weekly rate of pay applicable to the employee under section 12, 13, 14 or 15, divided by 38.
Section 3 of that Act provides:
An employee means a person who is an employee within the meaning of the Industrial Relations Act 1979.
The Industrial Relations Act 1979 (WA) defines an employee in s 7 as:
Employee means –
(a)any person employed by an employer to do work for hire or reward including an apprentice; or
(b)any person's whose usual status is that of an employee.
In Personnel Contracting Pty Ltd t/a Tricord Personnel v The Construction, Forestry, Mining & Energy Union Workers [2004] WASCA 312, in the decision of the Western Australia Industrial Appeal Court, the issue of whether a party was an employee within the meaning of the Industrial Relations Act 1979 (WA) was determined by applying the common law definition of whether there was a contract of service or contract for services.
The whole argument is somewhat circular. If there is a contract of service, then s 10 of the Minimum Conditions of Employment Act 1993 (WA) obliges Mr Truong to pay Ms Hyunh for the work trial.
A promise to perform, or the performance of, an existing duty, imposed by either statute or the general law, has been treated as good consideration in a number of cases because of the benefit it provides to the person to whom it is given (Ward v Byham [1956] 2 All ER 318; Popiw v Popiw [1959] VR 197; Airways Corporation of New Zealand Limited v Geyserland Airways Ltd [1996] 1 NZLR 116), although it is accepted that there is some controversy on this point: Ailakas v Olivero (No 2).

If a party makes a contract for good consideration to do something that they are already bound to do, even though at the time the parties were not sure that that duty actually existed, the other party can sue upon the contract: Williams v O'Keefe [1910] AC 186; Shook v Munro and Davidson [1947] 3 DLR 271.
In this case, however, there was neither a promise to perform the duty to pay the minimum wage or the actual performance of that duty because there was no discussion about reward for the work Ms Huynh performed and Ms Huynh has still not been paid for the work trial.
The consideration from the defendants was providing Ms Huynh with the workplace within which to perform the work trial and agreeing to assess her based on that performance for further more permanent employment. The opportunity to perform labour in that workplace and be assessed for future more permanent employment was clearly a practical benefit to Ms Huynh.
What are the essential contractual terms will vary with the nature of the contract. This contract related to a work trial of limited duration. In those circumstances the essential terms were the length of the work trial, the location of the trial, the days upon which the work was to be performed, the hours to be worked, the tasks to perform and the rate of remuneration.
The first five of those factors were agreed upon by the parties (two days, the defendants' premises, Saturday, 4 June and Sunday, 5 June, 9.00 am - 1.00 pm, working in the bakery). The remuneration was certain because the law imposes a rate of pay pursuant to the Minimum Conditions of Employment Act. I find that the essential contractual terms were certain.
The law in relation to whether the parties' voluntarily intended to assume legal responsibilities or had an intention to create legal relations is settled.
The legal onus of establishing the existence of a contract and the intention to create legal relations is on the party asserting it (in this case the defendants): Pirt Biotechnologies Pty Ltd v Pirtferm Ltd [2001] WASCA 96 (Murray J) (Ipp & Owen JJ); Ailakas v Olivero[No 2] [76] (Martin CJ).
This question is determined objectively by drawing inferences from what the relevant parties said and did in the course of their dealings. The resolution of this issue does not involve the search for uncommunicated subjected motives or intentions of the parties: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [25], Ailakas v Olivero [No 2].
Objectively examining the actual circumstances and context of the parties' dealings and what they said and did shows the parties evinced an intention to contract as opposed to expressing a sincere but legally insufficient promise or commitment: Evans v Secretary, Department of Families, Housing, Committee Services and Indigenous Affairs [2012] FCAFC 81; Ailakas v Olivero[No 2] [77].
The parties' intentions can be expressed or implied and often there is an overlap between the issues of intention to create legal relations, whether there is an agreement and whether there is mutual consideration: Australian Builders Labourers Federated Union of Workers (WA Branch) v Pacesetter Homes (1994) 56 IR 51.
It is an objective fact, as a result of what the parties said and did, that Ms Huynh was seeking employment and that the defendants were in a position to offer employment. Both parties were pursuing a commercial motive and had no other relationship to one another.
It is an objective fact that a work trial was to be conducted to assess Ms Huynh's capabilities and suitability for further employment over two days over a limited number of hours. It is an objective fact that the work trial would be conducted at the premises of the defendants utilising the defendants' plant and equipment, goods in stock and employees, with Ms Huynh providing her labour. The work trial was to be conducted at commercial premises during normal trading hours. It involved Ms Huynh interacting with the defendants' customers.
Viewed objectively, I am satisfied that the inferences to be drawn from what the parties did and said is that there was an intention to create contractual relations between them.

Was the contract a contract of service?

Having determined that a contract exists, the issue does not simply resolve itself into a choice of whether it was a contact of service or a contract for service. It is entirely possible that the contract was within neither category: Dare v Dietrich [35] (Deane J); Dietrich v Dare.
The parties' own subjective description of their relationship is irrelevant. It is necessary to have regard to the substance of the agreement and not to its form: Mirrabooka Fresh Pty Ltd v Al Jabber.
In Mirrabooka Fresh Pty Ltd v Al Jabber, Commissioner McCann considered [24], without intending to exhaustively state, the principles and indicia developed by past cases touching upon whether an employment contract entered into for educational, familiarisation, training or testing purposes can be regarded as a contract of service. His Honour acknowledged that some of the considerations may overlap. The principles and indicia referred to have been augmented by other cases, notably Klevens v Cappello Rowe Lawyers [2017] FWC 5126, and are gratefully adopted by me.
Matters to consider include:
(i)The duration of the contract.
Commissioner McCann in Mirrabooka Fresh Pty Ltd acknowledged that the longer the arrangement, the more likely it is to be found that a person is an employee, however, he accepted that a short work trial is not inconsistent with the existence of a contract for service particularly in the rapidly changing economy. In this case the work trial was for two days.
(ii)The purpose of the contract.
Some cases suggest that if the purpose of the work trial was to give the person work experience or provide training and skills as part of a formal programme to assist the person to obtain work it may be less likely to be considered an employment relationship: Klevens v Cappello Rowe Lawyers.
The purpose of the work trial was not to give Ms Huynh experience or to provide training and skills or work experience as some part of a formal programme to assist her to obtain work, it was a work trial to test her existing job skills. Ms Huynh applied for the job on the basis of her customer service skills. Mr Truong questioned her about those skills. The essence of her employability was based on those skills. The work trial was predominantly to display those skills, not to receive training or observe others and learn their skills.
The work trial necessarily involved Ms Huynh being given some instructions in tasks which she was unfamiliar with, however, it was a contract primarily entered into to test her existing skills performing work for the benefit of the business. It was not a test to see if she had skills. It was a trial to see her exhibit those skills in the defendants' work environment.
This points to a contract of service.
(iii)The parties reasons for entering the contract.
Ms Huynh and the defendants both had commercial motives for entering into the contract. Ms Huynh wished to obtain gainful employment. The defendants needed to replace a worker who was leaving. This points to a contract of service.
(iv)Whether there was an obligation for the alleged employee to be productive by performing work that is an essential part of the employer's business.
A person is less likely to be an employee if they are not expected or required by the business to do productive activities. Ms Huynh was required to be productive and serve customers rather than just solely observe, learn, train or develop her skills. The work she performed would normally be done by the defendants' paid employees and was an integral part of the defendants' business. These factors point to a contract of service.
(v)Whether the alleged employee was only expected to undergo training or familiarisation by observing and learning or perform a task or demonstrate skills.
Ms Huynh was expected to perform customer service duties and demonstrate her skills in that area. That was the purpose of the work trial. Ms Huynh received some brief and basic training or instructions in areas that she was not familiar with such as slicing bread, filling the pie maker, etc. This is not an uncommon feature of the casual employment market for low paid and unskilled manual workers and can be a feature of a contract of service. The mere fact that some tasks performed by Ms Huynh involved learning new processes is not inconsistent with a contract of service, nor does it change the essential nature of the contract.
The fact that a person is learning new processes in circumstances where the contract was primarily for them to show their existing skills does not prevent that person from being an employee: Rowe v Capital Territory Health Commission; Cooney v Capital Territory Health Commission [1982] 39 ALR 39.
(vi)The remuneration and other benefits promised to be paid or conferred by the alleged employer on or to the employee.
The law obliged Mr Truong to pay Ms Huynh for her services. This, by itself, is intractably neutral; independent contractors, agents and the like are also paid for services rendered.
(vii)Any requirement for the alleged employee to exercise a skill or qualification.
Ms Huynh was not required to exercise or demonstrate any particularly high skill or qualification. However, she was required to demonstrate her customer service abilities. This points to a contract of service.
(viii)Significance to the business and what the person is doing.
If the person is doing work that would otherwise be done by an employee or is work that the business or organisation has to do, it is more likely the person is an employee: Klevens. The fact that Ms Huynh was doing work within the ordinary operation of the business tends to point to an employment relationship arising.
(ix)The nature and extent of the alleged employer's control over the employee.
Ms Huynh was performing work at the defendants' premises subject to the directions of the defendants' staff as to the task to be performed and the manner in which they were to be performed. Ms Huynh was using the defendants' goods and equipment. Ms Huynh did not decide the hours of work or the method of work or the days of work. The work she performed was an essential part of the business of the defendants and performed within the ordinary operation of the business. These factors point to a contract of service even though the evidence establishes that the work being performed by Ms Huynh would have been performed by other staff members if she was not in attendance.
(x)Who obtains the main benefit from the work trial?
It has been suggested that if the business obtains the main benefit, it is more likely that the person is an employee: Klevens.
Benefits were being provided to both parties by this contract. Ms Huynh obtained a benefit in that she was being assessed and the defendants were legally obliged to pay her. The business was benefiting in that they had the opportunity to observe Ms Huynh in the work environment and received the benefit of her assistance in the business over those two days. The fact that both parties benefited from the contract is not inconsistent with a contract of service.
The answer to the question of whether a contract is a contract of services is not to be answered in a piecemeal fashion by simply adding up the number of matters which point to it being a contract of service and the number of matters that point to it not being such a contract. It is a question of considering the totality of the relationship between the parties.
In my view, the totality of the relationship, considering the matters that I have referred to, establishes the existence of a contract of service. Accordingly, the answer to the preliminary question is that Ms Huynh was at the material time a worker as defined in s 5 of the WCIMA.
Section 91 of the WCIMA provides that where an action is brought to recover damages independently of that Act and it is determined the injury is one for which the employer is not liable in such action but would have been liable to pay compensation under the Act, the court can either assess the compensation or refer the assessment of the compensation for determination by an arbitrator.
In my view, it is appropriate that I refer the assessment of compensation for Ms Huynh for determination by an arbitrator pursuant to the Act and I shall hear the parties as to the orders to achieve that aim and such other orders as are required.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
ASSOCIATE TO JUDGE BOWDEN
26 MARCH 2018