Jeffrey v Form Fitness Pty Ltd
[2022] FedCFamC2G 600
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jeffrey v Form Fitness Pty Ltd [2022] FedCFamC2G 600
File number(s): SYG 2487 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 12 August 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – alleged underpayments – whether the applicant was employed as a casual considered – disagreement over employment records – conflicting evidence of times worked – underpayments unproven – application dismissed Legislation: Fair Work Act 2009 (Cth) ss 44, 45, 293, 545
Fair Work Regulations 2009 (Cth)
Superannuation Guarantee (Administration) Act 1992 (Cth) s 49
Cases cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union & Ors (2005) 222 CLR 241
Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd (2007) 244 ALR 658
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Construction, Forestry, Mining and Energy Union v CSBP Limited (2012) 212 IR 206, 64 AILR 101-578
Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia & Anor (1980) 32 ALR 541
Devonald v Rosser & Sons (1906) 2 KB 728
Fair Work Ombudsman v Broome Helicopter Services Pty Ltd & Anor [2017] FCCA 2364
Fair Work Ombudsman v D’Adamo Nominees Pty Ltd (No 4) [2015] FCCA 1178
Federated Clerks’ Union of Australia Industrial Union of Workers (WA Branch) v Cary (1977) 57 WAIG 585
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473
FWO v Quest South Perth Holdings Pty Ltd [2015] HCA 45
Gapes v Commercial Bank of Australia Ltd [1980] FCA 21
Jones v Dunkel (1959) 101 CLR 298George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503-504
Keen v Health Corporation Ltd [2008] FMCA 1622
Kucks v CSR Ltd (1996) 66 IR 182
O’Donnell v Reichard [1975] VR 916
Re Porter (1989) 34 IR 179
Sim v LUO Enterprise Pty Ltd (No 2) [2009] FMCA 1060
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097
The Federated Engine Drivers & Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd
Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 284 FLR 238
Vickery v Woods (1952) 85 CLR 336
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18
Workpac Pty Ltd v Rossato & Anor [2021] HCA 23
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 148 Dates of hearing: 9, 22, 24, 29 September, 1 November 2021, 3, 4, 9 March, 11 May, 1 June 2022 Place: Sydney Solicitor for the Applicant: Mr K Kutasi of Solve Legal Counsel for the Respondents: Mr M Fantin Solicitor for the Respondents: Rickard Lawyers ORDERS
SYG 2487 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANNING JEFFREY
Applicant
AND: FORM FITNESS PTY LTD
First Respondent
RICKY GUILBERT
Second Respondent
DAMIAN SOLDADO
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
12 AUGUST 2022
THE COURT ORDERS THAT:
1.The application filed on 3 November 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
By an application filed on 3 November 2020, the applicant (Mr Jeffrey) brings proceedings seeking relief under the Fair Work Act 2009 (Cth) (Fair Work Act) for alleged underpayments. Mr Jeffrey seeks declaratory relief both in relation to the alleged underpayments of his claimed entitlements and for asserted contraventions of ss 44, 45 and 293 of the Fair Work Act, as well as orders under s 545 of the Fair Work Act for payment of the claimed underpayments. Mr Jeffrey also seeks an order under s 545 of the Fair Work Act and s 49 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) for claimed superannuation payments. Mr Jeffrey also seeks penalties and general damages for non economic loss.
Mr Jeffrey relies upon his amended statement of claim filed on 29 March 2021.
The claim is resisted by the respondents, Form Fitness Pty Ltd (Form Fitness), Ricky Guilbert (Mr Guilbert) and Damian Soldado (Mr Soldado). They rely upon their amended defence filed on 11 May 2021. In that defence, the respondents admit that Mr Jeffrey was employed in their business but deny the asserted commencement date. They assert that Mr Jeffrey was employed under an employment contract as a casual trainer and that he has received all of his entitlements.
These proceedings were hotly contested and the trial was conducted over an extended period on 9, 22, 24 and 29 September 2021, 1 November 2021, 3, 4, and 9 March 2022 and 11 May 2022. The trial concluded with oral submissions on 1 June 2022.
The evidence
The parties rely on the following affidavit evidence:
(a)affidavit of Mr Jeffrey, dated 16 June 2021 (MJ1);
(b)affidavit of Mr Jeffrey, dated 3 September 2021 (MJ2);
(c)affidavit of Mr Jeffrey, dated 8 September 2021 (MJ3);
(d)affidavit of Mr Jeffrey, dated 24 September 2021 (MJ4);
(e)affidavit of Dr Rosalind Deaker, dated 24 September 2021 (RD);
(f)affidavit of Victor Lau, dated 7 September 2021 (VL);
(g)affidavit of Meg Dwyer, dated 7 September 2021 (MD);
(h)affidavit of Mr Guilbert, dated 5 or 6 August 2021 (RG1);
(i)affidavit of Mr Guilbert, dated 22 September 2021 (RG2);
(j)affidavit of Mr Guilbert, dated 24 September 2021 (RG3);
(k)affidavit of Mr Soldado, dated 5 August 2021 (DS1);
(l)affidavit of Mr Soldado, dated 22 September 2021 (DS2);
(m)affidavit of Mr Soldado, dated 24 September 2021 (DS3);
(n)affidavit of Cheryl Sloggett, dated 22 September 2021 (CS);
(o)affidavit of Peter O’Brien, dated 24 September 2021 (PO);
(p)affidavit of Kyle Kutasi, dated 24 September 2021 (KK).
I also received the following exhibits:
·A1: applicant’s objections to evidence;
·A2: “Form Fitness Lawyer File”;
·A3: Copy of Fitness Industry Award;
·A4: text messages (earlier marked MFI A1);
·R1: outline of submissions for respondents;
·R2: BSBSMB401, assessment requirements;
·R3: BSBSB401, Legal and Risk Management Requirements of Small Businesses;
·R4: MA0000094 Fitness Industry Pay Award Guide;
·R5: clearer copy of Manning Jeffrey PT Minder calendar 24 June 2019;
·R6: PDF document, comparison of casual and full-time employees;
·R7: Air-Tite employment details;
·R8: Air-Tite payslips from 27 April 2020 to 14 June 2020;
·R9: Air-Tite induction document;
·R10: Air-Tite tax declaration;
·R11: the Excel spreadsheet which was subpoenaed;
·R12: Bar certificate showing Manning Jeffrey’s Certificate 4 in Fitness;
·MFI R13: Jeffrey Manning Calendar, Level 3 and 4A;
·MFI R14: Jeffrey Manning Calendar, level 4 and 4A.
The evidence of Mr Jeffrey, Mr Guilbert and Mr Soldado was tested at length under cross-examination. Issues of credibility arise from that cross-examination.
CONSIDERATION
Agreed facts
The following matters are common ground between the parties:
(a)Mr Jeffrey was originally engaged by Mr Guilbert and Mr Soldado as a contractor on 5 January 2019;
(b)Mr Jeffrey was employed by at least one of the respondents between at least 24 June 2019 and 6 June 2020 (“the Employment Period”);
(c)Mr Jeffrey was employed as a personal trainer by the respondents;
(d)the respondents’ business was at all relevant times a gymnasium located in Pymble, NSW;
(e)Mr Jeffrey’s employment was subject to the coverage and operation of the Fitness Industry Award 2010 (“the Award”) at all relevant times;
(f)Mr Jeffrey executed a document entitled “Form Fitness – Casual Employment Agreement” on 17 July 2019 (“the Casual Agreement”).[1]
[1] MJ1 [4], and annexure starting on page 6
Issues in dispute
There are a significant number of issues in dispute in these proceedings:
(a)who was the employer of Mr Jeffrey?
(b)when did the employment start?
(c)what was the relevant classification(s) for the employment under the Award?
(d)was the employment full-time or casual?
(e)what were the hours worked by Mr Jeffrey during the Employment Period?
(f)how much was Mr Jeffrey entitled to be paid under the Award during the Employment Period?
Who was the employer?
Mr Jeffrey submits that Messrs Guilbert and Soldado (and not the Form Fitness) were the employers of Mr Jeffrey at all relevant times.
Mr Jeffrey contends that he was first employed by Messrs Guilbert and Soldado jointly when they were in partnership, trading as “North Shore Personal Coaching” (NSPC).
It is uncontroversial that Mr Jeffrey worked as a subcontractor to Messrs Guilbert and Soldado from 5 January 2019 until his employment with them commenced on 6 May 2019.
Mr Jeffrey alleges he began receiving payslips from the respondents from the week beginning 6 May 2019.
Mr Jeffrey signed a contract of employment with “Form Fitness” on 17 July 2019.
Form Fitness Pty Ltd was not registered with ASIC until 19 August 2019.
Mr Jeffrey received payslips from NSPC until 4 August 2019, after which his payslips were issued by Form Fitness.
Mr Jeffrey denies that he entered into a contract of employment with Form Fitness, whether in writing or otherwise.
It is central to Mr Jeffrey’s argument that one cannot make a contract with a person who does not exist. Form Fitness Pty Ltd was not incorporated on 17 July 2019 when the Casual Agreement was executed. In any event, the Casual Agreement does not stipulate that Form Fitness is a party. The name “Form Fitness Pty Ltd”, nor its ACN, appear nowhere on the document.
What can be drawn from the Casual Agreement is that “Form Fitness” was at the time a trading name of Messrs Guilbert and Soldado. Mr Jeffrey contends that this was an attempt to formalise the employment relationship that began on 6 May 2019 between the same parties.
A contract cannot be unilaterally novated.[2]
[2] See for example, Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473, 491–492; and Vickery v Woods (1952) 85 CLR 336
Assignments can occur without the consent of a party, but only under certain conditions, which include a contractual provision that provides for assignment, an instrument of assignment and notice to be provided to the assignee.
The respondents have neither pleaded, nor led any evidence to suggest, there was an assignment of the Casual Agreement to Form Fitness when it was incorporated. In my view it was probably intended by the parties that Mr Jeffrey would be employed by Form Fitness once it was incorporated, but nothing turns on that.
Regardless of the contract terms, or otherwise, the consideration of underpayment by the respondents is by way of a comparison to the Award. The contract of employment, whatever it may be, is subordinate to the Award.
It is uncontroversial that Mr Jeffrey’s employment was covered by the Award. The respondents’ witnesses did not dispute this fact.[3]
[3] Transcript 4 March 2022, P-44, 1; P-67, 30; RG1 [13] ; DS1 [20]
When did the employment commence?
Mr Jeffrey says his employment commenced on 6 May 2019. The respondents say it did not commence until 24 June 2019.
Mr Jeffrey’s assertion is said to be supported by the following facts:
(a)Mr Jeffrey was established on the work schedule database of the business (PT Minder) by the respondents on or before 6 May 2019;[4]
(b)the respondents began making payments to Mr Jeffrey’s bank account on 17 May 2019 which were described as “Fitness Sessions”;[5]
(c)the conversation that Mr Jeffrey attests to at MJ2 [3];
(d)the respondents were referring clients to Mr Jeffrey to train on 14 May 2019;[6] and
(e)a personal reference letter signed by Mr Soldado dated 7 October 2019 which states that “Manning has been working full time with Form Fitness for over a year”.[7]
[4] MJ1 [8]
[5] MJ1 [6]
[6] MJ1 [9]
[7] MJ1, page 35
Put against this proposition is the respondents’ assertion that the Casual Agreement was backdated to begin on 24 June 2019, that a bond referable to the earlier independent contractor agreement was refunded on or about 27 July 2019 and Mr Jeffrey completed Tax File Number declarations and superannuation choice forms on or about 19 June 2019.[8]
[8] RG1 [18]-[22]
I accept that the fact that documents were completed later does not mean there was not already an employment contract in place. It is tolerably clear, however, that there was a period of transition from an independent contractor arrangement to an employment arrangement.
The test as to what is an independent contractor as opposed to an employee has long been a fraught area of Australian law. Nonetheless, there are many authorities that gave the Court guidance, such as Stevens v Brodribb Sawmilling Co Pty Ltd[9] and, more recently, ZG Operations Australia Pty Ltd v Jamsek.[10]
[9] [1986] HCA 1
[10] [2022] HCA 2
Essentially, the Court has to perform an analysis of such factors as the degree of control the employer has over the worker; the mode of remuneration; provision of tools and equipment; representation to third parties (e.g. uniforms and business cards); risk and liability; business expenses; exclusive engagement; separate place of work; advertisement of own services; right of delegation; and the nature of the work.
Mr Jeffrey contends through an analysis of these indicia, that the preponderance of the evidence suggests that he was an employee from no later than 6 May 2019.
The respondents allocated some clients to Mr Jeffrey’s PT Minder calendar and required him to be available to train these clients. However, Mr Jeffrey for a time retained some of his own clients. He was paid fortnightly by the respondents (and also by his clients). He says he was represented to the clients as being from NSPC. He carried no risk or liability for his services. The respondents did not require him to obtain any insurances or pay his own taxes. He worked exclusively in the respondents’ premises. He had no right to delegate his work and his work was not of a specialist nature (indeed, at the time, he had no qualifications).
Mr Jeffrey contends that, other than the execution of a contract and the completion of TFN paperwork in June, nothing else changed between the way he worked before 24 June 2019, and the way he worked after 24 June 2019. I find, however, that between May and June 2019 Mr Jeffrey wound down his independent contractor business.
It is uncontroversial that Mr Jeffrey was an employee from 24 June 2019. It remains controversial that he was an employee before that. I find that no employment was formalised until 24 June 2019.
The Fitness Industry Award 2010
It is accepted common ground that Mr Jeffrey’s employment was subject to the terms and conditions of the Award.
The Award (i.e. the relevant Award at the time of Mr Jeffrey’s employment) provides that employees may be engaged as full-time, part-time or casual (clause 10).
Clause 11 provides that a full-time employee is one “who is engaged to work an average of 38 hours per week”. A part-time employee is one who works less than 38 hours per week (clause 12), and a casual is defined at clause 13 as follows:
13.1 A casual employee is an employee engaged and paid as such.
13.2A casual employee for working ordinary hours on Monday to Friday must be paid per hour at the rate of 1/38th of the minimum weekly rate prescribed in clause 17—Minimum wages for the work being performed plus a casual loading of 25%.
13.3A casual employee for working ordinary hours on a Saturday, Sunday or public holiday must be paid per hour at the rate of 1/38th of the minimum weekly rate prescribed in clause 17—Minimum wages for the work being performed plus a casual loading of 30%.
13.4Subject to clauses 13.5 and 26.3(c), a casual employee must be engaged for a minimum period of three hours’ work at the appropriate rate or be paid per engagement for a minimum of three hours at the appropriate rate.
Clause 14 provides for notice of termination. Clause 15 provides for redundancy.
Clause 16 and Schedule B provide for classifications.
Clause 17 provides for minimum pay rates in each relevant classification. Mr Jeffrey notes these are hourly rates of pay and not piece rates.
Clause 18 provides for allowances. The relevant allowances for present purposes are as follows:
18.2 Meal Allowance; and
18.4 Broken shift allowance.
The meal allowance applies whenever an employee works overtime for more than one and a half hours. The rate as at May 2019 was $11.61, and was adjusted to $11.98 from 1 July 2019.
Broken shift allowance is paid at the rate of 1.7% of the standard rate extra per day. The standard rate is defined in the Award as the weekly Level 3 rate, being $794.70 as at 6 May 2019 and $818.50 from 1 July 2019.
Clause 22 provides for the payment of wages. Clause 22.1 requires that wages are to be paid weekly or fortnightly. Clause 22.5 requires that the employer must pay all wages and entitlements to the employee within seven days of termination. It is common ground that Mr Jeffrey’s employment was terminated on 6 June 2020.
Clause 23 provides for the payment of superannuation into a complying fund.
Clause 24 provides for ordinary hours of work and rostering. Relevantly, clause 24.1 provides that hours of work must not exceed 38 per week and shall be worked between 5.00am and 11.00pm (Monday to Friday) and between 6.00am and 9.00pm (Saturday and Sunday). Clause 24.2 mandates ordinary hours for a full-time or casual employee shall not exceed 10 hours on any one day. Clause 24.3 allows for broken shifts, provided that the shift is not broken into more than two parts, the total length of the shift is not less than three hours, exclusive of meal breaks, and the span of hours of the start and finish of the shift is not more than 12 hours.
Clause 25 provides for meal breaks. Clause 25.1 requires an unpaid meal break of not less than 30 minutes to be taken no later than five hours after commencing work and five hours after the resumption of work from a previous meal break. An employee required to work through a meal break must be paid double time for all time so worked until a meal break is allowed. Clause 25.2 provides for rest breaks, which are distinct from meal breaks, insofar as they provide for 10-minute paid breaks twice a day before and after the meal break.
Clause 26 provides for overtime and penalty rates. Clause 26.1 provides that all time worked outside the spread of hours at clause 24.1, in excess of 38 hours per week and/or in excess of 10 hours in any day is deemed to be overtime and paid at the rate of time and a half (x1.5) for the first two hours and double time (x2) thereafter (Monday to Saturday). Clause 26.2 provides for a minimum 10 hour break between shifts which, if not provided, makes all subsequent hours paid at double time until the break is given.
Regardless of the foregoing, clause 26.3 provides that all hours worked on public holidays are to be paid at the rate of double time and a half (x2.5) for a minimum of four hours.
Clauses 27 to 31 are essentially restatements of the National Employment Standards provisions for leave.
Full-time or casual?
Mr Jeffrey contends that he was a full-time employee of the respondents.
Mr Jeffrey submits that the important part to note of all three definitions of the types of employment are the primacy that the definitions give to the hours worked by the employee. He contends that a person working on average more than 38 hours per week is only able to be a full-time employee under the Award. I do not accept that a casual employee becomes a full‑time employee simply by working more than 38 hours in a week.
I accept that Mr Jeffrey worked more than 38 hours per week on occasion, but I do not accept that therefore his employment was that of a full-time employee. In that regard the weekly hours breakdown at MJ1 [13] which sets out the total hours worked between the start and finish times of Mr Jeffrey is contested.
The expectation of the parties, even if they were mutual, that Mr Jeffrey was a casual employee is said to be irrelevant.
As the High Court so succinctly stated in FWO v Quest South Perth Holdings Pty Ltd[11] at [21]:
[the parties] cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck.
[11] [2015] HCA 45, quoting Re Porter (1989) 34 IR 179 at 184: see footnote 20
That statement of course cuts both ways. Mr Jeffrey cannot unilaterally describe himself a duck when he had earlier agreed to be a rooster and had acted as one. It is therefore important to ascertain the true nature of working relationships without being confined by the description given to the relationship by the parties.
The recent High Court decision in Workpac Pty Ltd v Rossato & Anor[12] settled the meaning of a “casual” employee.
[12] [2021] HCA 23
The High Court held that a “casual employee” is an employee who has no firm advance commitment from the employer as to the duration of the employee's employment or the days (or hours) the employee will work, and provides no reciprocal commitment to the employer.
Where parties commit the terms of their employment relationship to a written contract and thereafter adhere to those terms, the requisite firm advance commitment must be found in the binding contractual obligations of the parties; a mere expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Fair Work Act.
Mr Rossato's employment was expressly on an “assignment by-assignment basis”. Mr Rossato was entitled to accept or reject any offer of an assignment, and at the completion of each assignment WorkPac was under no obligation to offer further assignments. Additionally, under the contract, either party could vary or terminate the period of an assignment on one hour's notice. This power of unilateral variation meant there could be no mutual obligation to pursue a continuing working relationship beyond the completion of a given assignment.
That Mr Rossato was to work in accordance with an established shift structure fixed long in advance by rosters did not establish a commitment to an ongoing employment relationship beyond the completion of each assignment. In carrying out each assignment, Mr Rossato worked as a casual employee for the purposes of the Fair Work Act and the relevant enterprise agreement.
The features of Rossato’s case that disentitled him to claim he was a full-timer are in my view present in Mr Jeffrey’s case. Mr Jeffrey had a written contract of casual employment. He was employed on an assignment-by-assignment basis in that he was engaged to train clients at times which suited them and which Mr Jeffrey could accommodate. Mr Jeffrey had the ability to refuse to train clients allocated to him if the proposed training time was not suitable. His hours of work varied significantly.
Mr Jeffrey was entitled to block out certain days to not work. That cannot be seen as merely rest time.
There is some evidence that Mr Jeffrey worked elsewhere. While he had an expectation of ongoing work, and he gave the same commitment in return, that does not constitute full-time employment. Mr Jeffrey terminated his employment when the amount of ongoing work became insufficient to meet his needs.
Mr Jeffrey could not (without cause) refuse client bookings. Mr Guilbert’s evidence was that he entered new client bookings into Mr Jeffrey’s PT Minder calendar without consulting Mr Jeffrey,[13] but the PT Minder calendar set out the times when Mr Jeffrey declared himself unavailable.
[13] Transcript 4 March 2022, P-77, 35 to P-78, 15
Mr Jeffrey points to objective evidence of the statements made by the respondents confirming that he was, allegedly, a full-time employee: namely, a driving suspension reference dated 13 June 2019[14] and a rental reference provided by the respondents on 7 October 2019.[15] On my view of the evidence, those documents were signed by Mr Guilbert,[16] either ignorant of their contents or in spite of their contents.
[14] MJ2
[15] MJ1 [10] and page 35
[16] and provided unsigned by Mr Soldado
Mr Guilbert claimed that the driving letter he signed was not drafted by him, and that that the contents of that letter were in part inaccurate.[17] However, Mr Soldado admitted he drafted the rental reference letter to “help out” Mr Jeffrey.[18] The statement in both letters that Mr Jeffrey was working full-time was false.
[17] Transcript 9 March 2022, from P-10 to P-18
[18] DS1 [10]
I note that the Casual Agreement provides for Mr Jeffrey (and the respondents) to give each other four weeks’ notice of termination. This is said to be another indicator of the “true nature” of the contract as one of a permanent nature, as opposed to casual employment which is normally terminated by either party by the giving of nominal or no notice. Of itself, it is certainly not determinative.
The restraint of trade clause (20) to the Casual Agreement also has some relevance. Restraints of trade are unusual when it concerns casual employees but needs to be understood in the context of a new business venture sensitive to competition.
The respondents understandably rely on the fact that the Casual Agreement describes the employment as “casual”.
Mr Jeffrey has always conceded that he signed the Casual Agreement and that this is factor that the Court has to consider. The Court is required to consider all the objective evidence to determine what the true character of the contract of employment was.
I find that Mr Jeffrey was employed as a casual employee.
Award classification
Schedule B of the Award provides the following classification definitions:
B.5 Level 4
B.5.1An employee at this level works under limited supervision and guidance and is required to exercise initiative and judgment in the performance of their duties and who is employed to carry out work associated with the centre’s operations.
B.5.2An employee at this level receives broad instructions and their work is checked intermittently.
B.5.3 An employee at this level may also be:
(a)an experienced swimming and water safety teacher, being a holder of any current qualification with the competencies detailed in clause B.2.2(b)(xiii) above, who has:
(i)performed 12 hours per year of recognised workshops and 500 hours of paid swimming and water safety teaching under this award and who holds a third recognised teaching qualification, or
(ii)delivered 700 hours of paid swimming and water safety teaching under this award, or
(b)a coach of beginner swimmers (including mini and junior squads), being a holder of a current recognised “Bronze Licence for Coaching” swimming coaching qualification or equivalent, who has:
(i)performed 12 hours per year of recognised workshops and 500 hours of coaching beginners and attended a recognised seminar/conference within the past 12 months, or
(ii) delivered 700 hours of coaching beginners.
(c)a senior pool lifeguard, being a holder of industry-recognized pool lifeguard qualifications and who has been appointed by the employer to lead a team comprised of qualified pool lifeguards,
and/or persons undertaking a nationally-recognized course of Lifeguarding to become pool lifeguards.
B.6 Level 4A
B.6.1. An employee at this level performs the duties of a Level 4:
(a)holds an Fitness Industry AQF Certificate Level IV qualifications relevant to the classification in which they are employed or equivalent;
(b)utilises the skills and knowledge derived from the Fitness Industry AQF Certificate Level IV competencies relevant to the work undertaken at this level.
The respondents posit that Mr Jeffrey was working at Level 3, which by contrast is described as follows:
B.3 Level 3
B.3.1An employee at this level works under general supervision which requires operation within defined areas of responsibility with adherence to established guidelines and procedures and who is employed to carry out work associated with the centre’s operations.
B.3.2An employee at this level is able to fulfil a role at Level 1 and 2 where relevant and supervises Level 1 and 2 employees where requested.
B.3.3 An employee at this level may also be:
(a)an intermediate swimming and water safety teacher, being a holder of any current qualification with the competencies detailed in clause B.2.2(b)(xiii) above, who has:
(i)performed 12 hours per year of recognised workshops and 250 hours of paid swimming and water safety teaching under this award and who holds a second recognised instructing qualification, or
(ii)delivered 350 hours of paid swimming and water safety teaching under this award; or
(b)a coach of beginner swimmers (including mini and junior squads), being a holder of a current recognised “Bronze Licence for Coaching” swimming coaching qualification or equivalent.
(c)a pool lifeguard who has completed a nationally-recognized Lifeguarding qualification, and has been appointed to the position of pool lifeguard by the employer.
The respondents have given no written evidence of any established policies or procedures that governed Mr Jeffrey’s employment.
As stated by Judge Lucev in Fair Work Ombudsman v Broome Helicopter Services Pty Ltd & Anor[19] at [24], in interpreting the Award, the Court must:
(a)“begin with a consideration of the ordinary meaning of the words” of the Award;[20]
(b)“generally give ordinary or well-understood words their ordinary or usual meaning”;[21]
(c)“have regard to the context and purpose of the provision being construed, where context may appear from the whole of the text of the Award, the arrangement of the text, or the place in the text of the relevant provision”;[22] and
(d)“have regard, as a contextual consideration, to the fact that it is an industrial award being construed, and therefore not open to literal, narrow or pedantic construction”.[23]
[19] [2017] FCCA 2364
[20] citing City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53] per French J
[21] citing Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J
[22] citing Amcor Ltd v Construction, Forestry, Mining and Energy Union & Ors (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J; City of Wanneroo at [53] per French J
[23] George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503-504 per Street J; City of Wanneroo at [57] per French J; Kucks at 184 per Madgwick J; Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd (2007) 244 ALR 658 at [21] per Siopis J
The “major and substantial” test has been applied to establish an employee’s classification under a particular award or agreement.[24]
[24] The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097
Ware v O’Donnell Griffin (Television Services) Pty Ltd[25] stands as authority for the principles of the major and substantial test:
...two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.
[25] [1971] AR (NSW) 18
The approach of examining the major and substantial employment of employees continues to be well used and cited for issues regarding employee classification.[26]
[26] Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia & Anor (1980) 32 ALR 541; Keen v Health Corporation Ltd [2008] FMCA 1622; Sim v LUO Enterprise Pty Ltd (No 2) [2009] FMCA 1060; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 284 FLR 238; Fair Work Ombudsman v D’Adamo Nominees Pty Ltd (No 4) [2015] FCCA 1178
The test requires an examination of what the major and substantial employment of the employee was. It is not merely a matter of quantifying time spent on various tasks; the quality of the type of different work done is a relevant consideration also. It is an examination of what employees believed their duties to be, and what they could be directed to perform.
This test was also applied in Construction, Forestry, Mining and Energy Union v CSBP Limited,[27] where it was observed that to identify the primary purpose “one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties”. The Court then referred to Burt CJ’s comments in The Federated Engine Drivers & Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd[28] that not every worker who drives an engine in carrying out there employment is an engine driver. The question is whether “the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else”; merely operating a machine so as to do the thing a person is employed to do does not make them an engine driver.
[27] (2012) 212 IR 206, 64 AILR 101-578 at [44] per Keane CJ, Siopis and Rares JJ
[28] (1977) 57 WAIG 794
In Federated Clerks’ Union of Australia Industrial Union of Workers (WA Branch) v Cary,[29] Burt CJ stated:
If in substance the worker’s job is to write and the job is done when the writing has been done he is a clerk, but if in substance the writing done by the worker is but a step taken in the doing by him of something extending beyond it then he is not. The ‘substance’ of the work identifies the question as being one of degree and it indicates the answer to it will be, or may be, very much the product of a value judgment.
[29] (1977) 57 WAIG 585
Mr Jeffrey was employed to provide one-on-one personal training to clients of the respondents’ business.
The evidence of both Mr Soldado and Mr Guilbert was that they performed no specific supervision of Mr Jeffrey’s work. It is a gym large enough that someone is not always in sight.[30] By their own evidence, they knew if he was going well by customer feedback.[31] Mr Soldado’s own evidence under cross-examination was that he barely even knew who Mr Jeffrey’s clients were.
[30] Transcript 4 March 2022, P-14 to P-15
[31] Transcript 3 March 2022, P-86
Neither Mr Soldado nor Mr Guilbert led any objective evidence as to when they were working in the gym. They merely stated there was always someone there to supervise Mr Jeffrey. Under cross-examination, Mr Guilbert did not provide any samples of his own work calendars in his evidence.[32] I am invited to draw an adverse inference in this respect, but I decline to do so as Mr Guilbert and Mr Soldado could not have anticipated that their presence in the business premises would be contested.
[32] Transcript 9 March 2022, P-5, 1
I accept from the unchallenged evidence of Ms Dwyer, Dr Deaker and Mr Lau, all of whom attested to training with Mr Jeffrey at times when they were alone with him in the gym, that Messrs Soldado and Guilbert were not continuously present.
I accept that the preponderance of the evidence is indicative of limited supervision and intermittent checking of work by the employer, which is the characteristic of a Level 4 employee under the Award.
A Level 5 (or above) employee is required to have no less a qualification than an AQF diploma, so that level clearly does not apply to the present circumstances.
What is clear however is that Mr Jeffrey attained a Certificate IV in Fitness on 10 February 2020.[33] It therefore follows that he must be classified as a Level 4A from that date. The only real dispute is to whether he was a Level 3 or Level 4 prior to 10 February 2020.
[33] MJ1 [14] and associated annexure at page 74
What flows from this then is the relevant minimum Award rates as set out at clause 17.1. These are summarised as follows for permanent employees:
Date from Level 3 Level 4 Level 4A 01/07/2018 20.91 22.94 24.04 01/07/2019 21.54 23.63 24.77
These rates do not include the casual loading. With a 25% casual loading included, the relevant hourly rates were as follows:
Date from Level 3 Level 4 Level 4A 01/07/2018 26.14 28.68 30.05 01/07/2019 26.93 29.54 30.96
As noted above, it is not disputed that from 10 February 2020, Mr Jeffrey was qualified at level 4A as he had attained a Certificate IV qualification. The controversy between the parties is what level Mr Jeffrey should have been paid at before that date. Prior to that date he did not hold a Certificate IV. Neither did he hold a Certificate III which was a prerequisite for a level 3A classification. I proceed on the basis that, prior to 10 February 2020 Mr Jeffrey was classified at level 3. That is because he was capable of performing the duties of a level 1, 2 or 3 employee.
The respondents’ affidavit evidence
Messrs Guilbert and Soldado were accused in cross-examination of crafting their evidence together. The table below sets out a detailed comparison between the words used in the affidavits of Messrs Soldado and Guilbert in their first affidavits, namely RG1 and DS1.[34]
[34] Mr Jeffrey’s emphasis retained
Mr Soldado’s affidavit Mr Guilbert’s affidavit Para Text Para Text 1 I am a director of Form Fitness Pty Ltd ACN 635 624 804 (Form Fitness), the Third Respondent in these proceedings 1 I am a director of Form Fitness Pty Ltd ACN 635 624 804 (Form Fitness), the Second Respondent in these proceedings 2 I have been employed as a personal trainer for approximately 10 plus years and hold personal training qualifications: 2 I have been employed as a personal trainer for approximately 10 years and hold qualifications in personal training being Certificate III in Gym Instructing and Certificate IV in Personal Training. 3 In May 2017, I set up a business called North Shore Personal Coaching (Northshore) in partnership with Ricky Guilbert (Ricky) who is also now a director of Form Fitness. Northshore was a partnership and registered as a sole trader. Our original business was located in Gordon, NSW. 3 In May 2017, I set up a business called North Shore Personal Coaching (Northshore) in partnership with Damian Soldado (Damian) who is also now a director of Form Fitness. Northshore Personal Coaching was a partnership and registered as a sole trader. Our original business was located in Gordon. 4 In November 2017 , Ricky and myself leased a premises at 915 Pacific Highway Pymble and established a personal training facility where we ran one-on-one personal training. 4 In November 2017 , Damian and myself leased a premises at 915 Pacific Highway Pymble and established a personal training facility where we ran one-on-one personal training sessions. 20 - 21 Manning was paid above award by $18,690 and the following table show his pay compared to the payments under the award.[35]
The casual award at the time was $26.93 per hour including all penalty rates, overtime rates, and holiday pay. Manning was paid between $30.00 and $40.00 per hour as shown on his pay slips. Manning was paid his superannuation at the prescribed rate.
31 Manning was paid in accordance with his Casual Employment Contract and was paid well above Award for a level 3 casual employee by $18,690.
The table below shows Manning’s pay compared to the award rate. The casual award at the time was $26.93 per hour on weekdays and $28.00 per hour on Saturdays. Manning was paid a minimum of $30.00 and up to $40.00 per session.[36]
[35] same table as RG1 used is inserted here
[36] same table as DS1 used is inserted here
There are some other minor consistencies in the affidavits of Messrs Soldado and Guilbert (and Mrs Sloggett, for that matter) that were elaborated upon under cross-examination, for example, errors in the dating of affidavits and/or annexures.
These similarities between the two affidavits of Mr Soldado and Mr Guilbert, including as to sequences of events and actual words and phraseology used, is said to be too large to be passed off as coincidence. Although some of the similarities are insignificant, others are said to be very significant and go to the heart of key events and conversations.
Given that some of the accounts relate to the same event to which Messrs Guilbert and Soldado were both present, some similarity as to what occurred, and what people said, is to be expected. However, Mr Jeffrey complains that what the Court is being asked to accept on the face of the evidence filed in these proceedings by the respondents’ witnesses is that they each said to have had the same exact recall of certain events and conversations, two years after they happened, such that their use of words and phrases, repeatedly, is not just similar, but identical.
I see nothing sinister in these drafting similarities. They are mostly limited to the opening paragraphs and formal parts of the affidavits and it may be accepted that there has been some input into the drafting by the respondents’ solicitors.
Credit of the witnesses
The credit of the witnesses in this case is important.
Mr Jeffrey invites the Court to conclude that Messrs Guilbert and Soldado are “incredible” witnesses. It is said to naturally flow that on every point that Mr Jeffrey’s evidence is contradicted by that of the respondents, Mr Jeffrey’s evidence should be preferred. I make no such finding.
I did not find Mr Jeffrey, Mr Guilbert or Mr Soldado to be impressive witnesses. Generally, the evidence of the witnesses was at times evasive, self-serving and incredible when they considered it expedient to do so for their case.
An example was the evidence of Mr Guilbert and Mr Jeffrey about the driving suspension reference letter.[37] It is obviously a problem for both to explain why they wrote and signed two letters stating that Mr Jeffrey was a full-time employee. Mr Guilbert tried to deal with it by stating he did not draft the letter (even though he signed it); he signed it because he didn’t really know what it was about; and that everything in the letter was false.
[37] Transcript 9 March 2022, from P-10 to P-18
Mr Jeffrey was prepared to mislead others (including a Court on a traffic charge) about the status of his employment and Mr Guilbert and Mr Soldado were willing to support him in that endeavour, either knowingly or recklessly. Their conduct reflects poorly on all of them.
If it is true that the letters were false (and I find that they were), then this demonstrates a propensity for the parties to attempt to deceive others, including the judiciary in the case of Mr Jeffrey’s driving suspension hearing. Either way, they must be seen as dishonest or at least reckless.
The absence of Jera Duffy
In his written evidence, Mr Guilbert refers to Jera Duffy.[38]
[38] see for example, RG1 at [15], [17], [49] and Transcript 4 March 2022 at P-88, 26
Mr Duffy is said to be a shareholder of Form Fitness and was described by Mr Soldado as their manager, who also confirmed he is currently employed by the respondents[39].
[39] Transcript 4 March 2022, P-22, 35
Mr Duffy was described by Mr Guilbert at RG1 [49] as being present in the gym with Mr Jeffrey when neither Mr Guilbert nor Mr Soldado were present.
I accept that Mr Duffy was a potentially valuable witness to corroborate (or reject) the respondents’ claims about the work performed by Mr Jeffrey.
In cross-examination, Mr Soldado was asked why Mr Duffy was not called. The following exchange ensued: [40]
[40] Transcript 4 March 2022, P-22-3, 40
MR KUTASI: Is there a reason why Mr Duffy hasn’t given evidence in these proceedings?
MR SOLDADO: Not really. The case is against Form Fitness and Ricky and I.
MR KUTASI: But you’ve referred to him in your evidence on several occasions. Why has he not been asked to give evidence by you?
MR SOLDADO: Well, we have limited – we don’t have that much money to – to spend on all these extra affidavits and all this time spent on this, so we like to keep it between us.
MR KUTASI: Is that your evidence, is you didn’t lead any helpful evidence to you because you didn’t want to spend the money on preparing an affidavit?
MR SOLDADO: That’s part of it.
Mr Jeffrey reminds the Court that the respondents’ counsel cross-examined Mr Jeffrey from 9 September 2021 to 3 March 2022 (a total of six days). The assertion that Mr Duffy did not give evidence to save money is said to be absurd.
The better explanation for the absence of Mr Duffy is said to be that his evidence was bound to be unhelpful to the respondents’ case.
Mr Jeffrey asks the Court to draw Jones v Dunkel[41] inferences against the respondents. Newton and Norris JJ, in O’Donnell v Reichard,[42] explain the principle in the following terms: [43]
the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely:
(a)in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and
(b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.
[41] (1959) 101 CLR 298
[42] [1975] VR 916
[43] at 929
I decline to draw such an inference. It is by no means clear that Mr Duffy’s evidence would have assisted one side or the other. There is no property in a witness and Mr Jeffrey could have sought evidence from Mr Duffy if he thought it would assist him. It is in my view not likely that Mr Duffy could have resolved the issue of the actual times (as opposed to the hours) that Mr Jeffrey worked.
The key issue in dispute: whose timesheets are accurate?
The central question in these proceedings is said to be whose timesheets are correct?
These proceedings are unusual in that both sides claim Mr Jeffrey worked different times and on different days during the employment period.
Mr Jeffrey’s evidence of his timesheets is at MJ1 [8], MJ3 [4] and MJ4 [3], and the respondents’ evidence of same is at RG1 [29] (mirrored at DS1 [19]) and DS2 [8].
Mr Jeffrey’s evidence is said to be preferred for the following reasons:
(a)he has always maintained these were his hours;
(b)after the termination of his employment, he had no access to PT Minder to make any changes[44];
(c)the subpoena material provided by PT Minder is said to show that Mr Jeffrey’s calendars are accurate;
(d)external evidence is said to support Mr Jeffrey’s times;
(e)the absence of evidence from Mr Duffy; and
(f)the other employees’ PT Minder calendars are said to look similar to Mr Jeffrey’s and demonstrate the gaps one expects between sessions.
[44] Transcript, 24 September 2019, P-138, 13
I was provided with a chart in which all evidence of session times has been entered for comparison purposes. I was also provided with a chart comparing the evidence of Dr Deaker to that of Mr Jeffrey and the respondents.
There is said to be no supporting evidence for the respondents’ calendar when it disagrees with that of Mr Jeffrey.
In other words, Mr Jeffrey contends that when he and the respondents disagree on the time when a session was performed at the gym, neither the PT Minder subpoena, nor Dr Deaker, nor any of the other witnesses say they were trained when the respondents say they were. But there are examples of when the objective evidence aligns in favour of Mr Jeffrey’s calendar.
The only conclusion to be drawn from this is said to be that the respondents have created a fictitious calendar.
The evidence of Mr Jeffrey is that he took screenshots of his calendar just before his employment was terminated (being June 2020)[45]. These screenshots align with the PT Minder data, being Exhibit R11. Exhibit R11 does not show any amendments to Mr Jeffrey’s calendar after June 2020.
[45] Transcript 9 September 2021, P-25, 18
This is therefore said to mean that the version produced by the respondents dated 4 November 2020 could only have been altered after June 2020, and by them.
Mr Soldado, who was the first to give evidence for the respondents, stated that the calendars he annexed to DS1 were from “screenshots” taken by Mr Guilbert sometime after these proceedings commenced.[46] Mr Guilbert, who had the advantage of having sat through Mr Soldado’s evidence, also initially stated that the work calendars he annexed to RG1 (which are the same as those in DS1) came from screenshots he took.[47] This evidence, however, later changed, as Mr Guilbert claimed they were copies of printouts he did and handed to his lawyer.[48]
[46] Transcript 4 March 2022, P-6, 20
[47] Transcript 4 March 2022, P-73, 1
[48] Transcript 9 March 2022, P-3, 20
The provenance of the respondents’ calendars is said to be a crucial issue, as the timestamp on their “printout” is dated 4 November 2020. This date is relevant, as it was produced after 15 October 2020, the date upon which Mr Jeffrey sent a draft copy of the statement of claim in these proceedings to the respondents.
Mr Soldado responded to some of this correspondence on 20 October 2020[49] by stating that “[Manning] did not work 76 hours a fortnight”. Mr Soldado said he knew this was so because he checked the system “at the time”.[50]
[49] KK, page 7
[50] Transcript 4 March 2022, P-6, 25
The 20 October letter was apparently drafted by a lawyer. It contains references to costs applications and lawyer’s certificates. Mr Guilbert said he did printouts of Mr Jeffrey’s work calendar to give to Mr O’Brien, the respondents’ solicitor. If he did, then he is referring to a different document, as Mr O’Brien could not have the 4 November printouts before him when he drafted the 20 October letter.
Further, the 20 October letter asserts that Mr Jeffrey:
did not work 76 hours a fortnight he was a casual and averaged 46 sessions per fortnight. … He was not paid an hourly rate … it was a session fee per 45 minutes. He had not set hours he could work as little or as much as he liked.
(errors in original)
This response does not assert that the claimed start and finish times are incorrect. All that is asserted is to say “you were paid per session”.
It also said to be significant that the respondents first included their version of the calendar in their August 2021 evidence in response to Mr Jeffrey’s first affidavit, in which he did not annex his timesheets. For his part, Mr Jeffrey only provided his version of the PT Minder calendars in reply.
Mr Jeffrey contends that the respondents’ version of the calendar is compressed. There are few to no breaks between sessions, which does not match either the calendar entries for three named clients.[51]
[51] MJ4
The compression is said to make sense for the “nefarious editor”, as by the commencement of these proceedings the respondents were aware that Mr Jeffrey was claiming to be paid for the time he spent between sessions and breaks. They could not delete sessions, as this would throw the weekly session totals paid on the payslips out, so all they could do was to compress them to eliminate as many breaks and split shifts as possible.
It is not possible for me to conclude which version of the PT Minder calendars in evidence is accurate, or more accurate. Mr Jeffrey had an incentive to manipulate the entries to support his claim for working between training sessions. The respondents had an incentive to manipulate the calendars to minimise that line of argument. In the final analysis, however, it does not matter, as the evidence as to the number and duration of sessions worked is consistent. The real issue is whether Mr Jeffrey was entitled to be paid for ad hoc duties performed between training sessions.
Working between client sessions
In my view, the key issue in these proceedings is whether Mr Jeffrey is entitled to be paid for time he spent between client sessions when he was present in the workplace.
Mr Jeffrey’s position is that he was ready, willing and able to work at all times when he was present at the gym. Whether or not he was doing anything productive is said to be legally irrelevant.[52]
[52] Devonald v Rosser & Sons (1906) 2 KB 728; Gapes v Commercial Bank of Australia Ltd [1980] FCA 21
Mr Jeffrey has given some evidence about work he performed between paid sessions, including turning up half an hour prior to his first session of the day, putting away weights and cleaning up, attending team meetings, calling clients, preparing training programs, training himself and other trainers, delivering flyers (beyond 45 minutes), creating social media content for the respondents, and attending to work to have professional photographs taken (MJ1, [20]-[25]).
Under cross-examination, Mr Jeffrey gave this evidence:
So there were, you know, things in the gym to clean up. There was social-media content that I created from time to time. I also needed to write and update clients’ programs. There were, I suppose, correspondence which I sent to clients in regards to, you know, information of an informational nature. There were, you know, general duties where I would, you know, tidy the gym up after sessions. Clients which were not mine, I would – I was expected to greet them and interact with them so that they had a – a, you know, welcoming experience, even when I myself was not in a session. There was a range of things that I was doing.[53]
…
What did you do after that?--- So I will have packed away the equipment after the session. I will have – I probably would have contacted some of my other clients to make – to confirm – there were – I will have also interacted with the other clients present in the gym after I had finished that session. I will have probably also done my – my own training and used the gym to, you know, keep up my own health and fitness.[54]
[53] Transcript, 22 September 2021, P-114, 20
[54] Transcript, 22 September 2021, P-115, 3
Mr Jeffrey also gave evidence that he was required to be in the gym no later than 15 minutes prior to the start of sessions[55] and that he was required to maintain a level of physical fitness as a condition of employment, and as such, trained in the gym four times a week.[56]
[55] Transcript, 22 September 2021, P-114, 40
[56] Transcript, 22 September 2021, P-115, 36
The respondents’ witnesses acknowledged many of these claims to be true, though they downplayed the extent of the concessions. For example from Mr Soldado’s cross-examination:[57]
MR KUTASI: Do you remember – have any recollection of any times when Mr Jeffery was not training clients whilst he was waiting for other clients to start training with?--- It happens.
Okay. And what – do you have any recollection of what Mr Jeffery would be doing at Form Fitness whilst he was awaiting those clients?--- No.
[57] Transcript 4 March 2022, P-35, 3
In another example, Mr Soldado conceded that he held and attended regular team meetings; could not recall Mr Jeffrey ever not being present at same; and explicitly agreed that he did not pay for attendance at such meetings “because they weren’t compulsory.”[58]
[58] Transcript 4 March 2022, P-2, 40 to P-4, 5
Another example was Mr Guilbert’s explanation that Mr Jeffrey was not paid to communicate with clients outside of training times, so therefore communication should occur during session times. Eventually he conceded there was likely to be communication outside of sessions, but it was nonetheless still unpaid because he did not “require” it.[59]
[59] Transcript 9 March 2022, P-24, 29 to P-27, 35
Similarly, evidence was led by Mr Jeffrey that established that he spent much more than 45 minutes at a time delivering promotional flyers,[60] yet again this was a concession that the respondents were unable to make.
[60] MJ2
Mr Guilbert admitted that Mr Jeffrey was never sent home between sessions[61], and the respondents have never claimed Mr Jeffrey was otherwise doing anything else whilst he was at the workplace. The respondents’ position is a simple one: namely that Mr Jeffrey was employed to train clients (and incidentally to distribute flyers for 45 minutes at a time) and that he was paid for that work. He was not paid to in some unspecified way make himself useful between training sessions. I accept that submission. Mr Jeffrey was entitled to remain at the gym if he wished between training sessions, for example, to exercise himself but he could not unilaterally expand his work time by finding things to do between his paid sessions and then claiming extra hours for those activities.
[61] Transcript 9 March 2022, P-19, 39
Under the Fair Work Regulations 2009 (Cth), an employer is required to keep time and wages records for seven years (Part 3-6, Div 3). These include the hours an employee works (regulation 3.33(2)).
It is clear that the respondents kept accurate records of the hours Mr Jeffrey actually worked. They may not be accurate records of the actual times worked in a day but the respondents were not required to keep records of the times Mr Jeffrey was not working, but pretended to do so.
Mr Jeffrey contends that even if the alternative proposition is accepted by the Court, that is, Mr Jeffrey was not entitled to be paid for the hours between sessions, the respondents still have an underpayment problem by reason of the Award provisions about allowances for split shifts and overtime where the total span of hours exceeds 12 hours per day.
I reject that contention. Mr Jeffrey claims over $70,000 but the basis of that claim, by reference to the Award, is not clear. On the contrary, it appears that Mr Jeffrey was in fact over paid. I received as an aide memoire[62] a spreadsheet prepared by counsel for the respondents which was prepared based upon the Award entitlements for a casual level 3 and level 4A employee. That shows that Mr Jeffrey was over paid $17,690.
[62] MFI R13
CONCLUSION
I make the following findings:
(a)Mr Jeffrey was initially employed by Mr Guilbert and Mr Soldado who were, at the time, partners in their gymnasium business;
(b)Mr Jeffrey was subsequently by a common understanding employed by Form Fitness under the employment contract that he signed;
(c)Mr Jeffrey’s employment commenced on or about 24 June 2019;
(d)Mr Jeffrey was employed as a casual trainer under the Award from 24 June 2019 to 9 February 2020 and was employed as a Level 3 employee initially until 9 February 2020 and as a Level 4A thereafter until his employment terminated;
(e)Mr Jeffrey worked the hours that are indicated in the PT Minder timesheets put into evidence by the parties, although the arrangement of those hours is in dispute and cannot be definitively determined because of the conflicting records;
(f)Mr Jeffrey has exaggerated the working times of his employment between recorded employment periods in an attempt to claim additional money; and
(g)on the basis of the records of employment relating to hours worked, irrespective of the dispute as to the arrangement of those hours at particular times and days, Mr Jeffrey has not been underpaid any of his entitlements.
I conclude that the claims made by Mr Jeffrey have not been substantiated. The application will be dismissed.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 12 August 2022
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