Jess v Cooloola Milk Pty Ltd - [2021] FCCA 1526

Federal Circuit Court of Australia
Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526

File number(s): BRG 279 of 2019

Judgment of: JUDGE VASTA

Date of judgment: 7 July 2021

Catchwords: INDUSTRIAL LAW – claim for underpayment – casual v full time worker – proper award – is the applicant better off? – no records kept by respondents – effect of s 557C – adverse action – whether there was an exercise of workplace right – has respondent discharged the onus – contravention of record keeping requirements – declarations made – no pecuniary penalty ordered

Legislation:
Fair Work Act 2009 (Cth) ss 15A, 342(3), 345, 535, 550, 557C, 570

Fair Work Regulations 2009 (Cth) regs 3.33(2), 3.34

Road Transport (Long Distance Operations) Award 2010

Road Transport and Distribution Award 2010

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034

Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456

Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589

Tattsbet Limited v Morrow [2015] FCAFC 62

WorkPac Pty Ltd v Skene [2018] FCAFC 131

Number of paragraphs: 235

Date of last submission/s: 15 June 2021

Date of hearing: 17 and 18 February 2020 and 10 and 11 May 2021

Place: Brisbane

Counsel for the Applicant: Mr Latham

Solicitor for the Applicant: Anderson Gray Lawyers

Counsel for the Respondents: Ms Willson

Solicitor for the Respondents: Employsure Law Pty Ltd
ORDERS

BRG 279 of 2019

BETWEEN:
GREGORY JESS

Applicant

AND:
COOLOOLA MILK PTY LTD

First Respondent

RICHARD SCHRODER

Second Respondent

order made by:

JUDGE VASTA

DATE OF ORDER:

7 July 2021

THE COURT DECLARES THAT:
1.The First and Second Respondent contravened section 535 of the Fair Work Act 2009 (Cth) (FW Act) by:
(a)failing to make employee records in relation to the casual employment of the Applicant, Gregory Jess; and
(b)failing to make a record of the number of overtime hours worked by the Applicant, Gregory Jess.

THE COURT ORDERS THAT:
2.There be no pecuniary penalty made against the First and Second Respondent.
3.Otherwise all outstanding applications be dismissed.

REASONS FOR JUDGMENT
JUDGE VASTA
Introduction

In April 2014, the First Respondent, Cooloola Milk Pty Ltd, were looking for a new truck driver because their current truck driver was about to retire. The Applicant, Gregory Jess, contacted Richard Schroder, the Second Respondent, who is the majority shareholder and managing director of the First Respondent.
The Applicant began to work for the company on 2 May 2014. His main duties were driving trucks, either on a “Brisbane run” or a “local run” but there were also other duties that he performed.
On 4 January 2019, the Applicant was told by the Second Respondent that his services were no longer needed and that he was being given two weeks’ notice. Accordingly, the Applicant finished working for the First Respondent on 18 January 2019.
The Applicant has claimed that he was chronically underpaid during the time of his employment. Further, he claims that the Respondents have taken adverse action against him. Lastly, he also claims that the Respondents made false and misleading representations to him about his employment and entitlements. He is seeking compensation as well as the imposition of pecuniary penalties.
The Course of the Trial
The trial started before me on 17 and 18 February 2020. However, during the course of cross-examination, the enormity of the task of putting to the Applicant all of the discrepancies upon which the Respondent relied became evident. Consequently, it was apparent that the trial would need to be adjourned.
I indicated to the parties the characteristics of a document that I wished them to produce. I adjourned the trial until 2 June 2020 and listed the hearing for an additional three days. It was shortly thereafter that the ramifications of the COVID-19 pandemic made their mark.
On 12 March 2020, the Respondents filed an application in a case seeking further discovery from the Applicant. On 2 April 2020, I dismissed the application in a case and ordered that the trial remain as listed but ordered that the trial occur via Microsoft Teams. I adjourned the matter for mention to ensure that there were no “hiccups” in the resumption of the trial.
On 15 May 2020, I delisted the trial. The parties had argued that the trial could not occur via Microsoft Teams as there was an impracticality with showing the newly created document to any witnesses. The Respondents also claimed that Mr Schroder (the Second Respondent) would be disadvantaged in giving his evidence via Microsoft Teams due to his being hard of hearing and lack of computer skills.
I listed the trial to resume on 17 August 2020 in the hope that “face-to-face” hearings would be possible by that time. However, on 13 July 2020, it was clear that such a hearing would not be able to occur as interstate Counsel and solicitors would not be able to come to Brisbane without completing a 14 day quarantine period. I accepted that this was impractical for those practitioners.
I listed the trial to resume on 14 December 2020. Because of outbreaks and sudden lockdowns, the trial could not begin on that date. I delisted the trial in Chambers and relisted the resumption for either 8 February 2021 or 10 May 2021. Both parties subsequently contacted my Chambers to say that they were unavailable on 8 February 2021.
The trial recommenced on 10 May 2021, nearly 15 months after it was first adjourned. On the bright side, the evidence was able to be elicited very easily, and the issues had narrowed. The evidence concluded on the afternoon of 11 May 2021. Counsel asked that I allow them to provide written submissions, with the submissions of both parties to be sent to my Chambers on the same day (14 June 2021).
Whilst this procedure was not my preferred course as the “back and forward” between bench and bar table is very useful to test propositions and gauge the respective arguments’ strengths and weaknesses. Nevertheless, I acceded to this request.
I did so because this trial has, unfortunately, taken up too much time in the lives of the litigants and has cost them far more money than they could ever have expected when I first adjourned the matter in February 2020. Both parties submitted that there would be a great saving in costs for their clients in proceeding this way.
The legal representatives for the Applicant wrote to my Chambers on 23 June 2021, requesting that they be allowed to order a copy of the transcript for the witnesses O’Halloran and Mullins. The transcript was to be provided to me as there were conflicts in the submissions from both sides as to the content of their evidence. Chambers replied to both parties, on 24 June 2021, that the Court would order the transcript of the evidence of those two witnesses and would thereby assume the costs of the transcription. The transcript was sent to my Chambers by Auscript on 30 June 2021. I have tried to finalise this judgement as quickly as possible because of the delays and costs borne by the parties due to the unfortunate history of the proceedings.
The Duties of the Applicant - the Local Run
The “local” run consisted of the Applicant driving to (between three and five) local farms and transporting milk from those dairy farms to the base of operations of the First Respondent, which is in Dagun (around 20km south of Gympie). The furthest farm was approximately 40 minutes away from the base of operations of the First Respondent. According to the Second Respondent, the other farms were in close vicinity; no more than 15 minutes (whose evidence on this subject was not challenged).
If the Applicant were doing a long local run (being five farms), he would usually travel first to the furthest farm (which was owned by the brothers of the Second Respondent). He would then travel back to the factory and go to the closer farms along the way. However, there were times where the tanker would be full of milk from the furthest farm, which would necessitate going straight back to the factory before going to the other farms. In this way, there were sometimes two trips taken on a local run.
However, if this occurred, there would be very little difference in the time it would take to complete the run, according to the Second Respondent, whose evidence on this point was not challenged.
When the Applicant (or any other driver doing this local run) would arrive at the farm, there would be a form of “hook up” to pump the milk from the farm vats into the tanker. The time at which the milk began to flow was noted on the milk tanker collection sheet. These times were necessarily noted to ensure consistency of health checks regarding the milk.
Reproduced below is a random milk tanker collection sheet to illustrate this point.
The evidence of the Second Respondent was that this process (leaving the base of operations, collecting milk from all five farms, returning to base and depositing the milk) should take around four hours, but certainly, no more than five hours to complete. If the local run did not include the furthest farm, then the process would take significantly less time. Again, this evidence was not challenged.
Duties of the Applicant – the Brisbane Run
This aspect of the Applicant’s duties were the other limb to the operations of the First Respondent. Once the milk had been bottled and was ready for sale, the milk product was transported to a number of distributors. The main distributor for Brisbane was located at Strathpine/Narangba.
There was also an ice cream producer at Virginia who would buy their milk from the First Respondent. This meant that the typical Brisbane run included the delivery to Virginia.
For this run, the Applicant would drive south from the Dagun base to Virginia and then drive north to Strathpine. After making these deliveries, the Applicant would drive back to the Dagun base.
The Second Respondent estimated that this run would take about five hours. He was prepared to concede that there could be delays at either Virginia or Strathpine and other issues such as roadworks which could cause that time to blow out. He said that taking all of those matters into account, a period of six hours would be more than sufficient to complete such a run.
There were also another two longer runs; the first being from the base of operations to Labrador (about 80kms further south of Virginia) and return, and the second being from the base of operations to Baffle Creek (about 300kms north of Dagun) and return. The Labrador run seems to have been discontinued from October 2014. and the Baffle Creek run seems to have been discontinued from April 2016. These runs were more sporadic and seemed to occur every 2 to 3 weeks.
Because the Applicant was driving a heavy vehicle for these runs and travelling more than 200 km in a day; he was required to keep a logbook and fill out a National Driver Work Diary Daily Sheet (NDWDDS). The Applicant said that these sheets were not totally accurate, but the start time and the finish time were correct.
The Applicant said that the break times in the sheets were somewhat “fictionalised” to ensure that there was a 30 minute break recorded. These sheets needed to be completed so that employers and the Department of Transport could ensure that drivers were not overworking or driving whilst fatigued. An example of the daily sheet is reproduced below.
Other duties of the Applicant
From about October 2017, the Applicant said he started to do the “truck and dog carting” of gravel and cow manure to and from the farm of the Second Respondent instead of many of his milk runs. This work had nothing to do with the business of the First Respondent and more to do with the farm owned by the Second Respondent.
In evidence, the Second Respondent, said that he approached the two enterprises (the milk factory and the farm) in the same way because he owned them both. He said that what he did with the farm he did through the auspices of the First Respondent.
The Applicant said that, apart from the actual driving, he also would do other work either before or after his runs or even instead of his runs. This work included:
·getting the tanker hooked up if it had not been done the day before;
·looking at the relevant trailer with the truck or prime mover;
·safety checking of the truck or prime mover and trailers before they were driven;
·safety checking of the truck or prime mover and trailers after a run had finished;
·loading and unloading of the trailers and trucks;
·preparing the holding vats and pumps;
·washing out the tanker or other trucks;
·washing the outside of the trucks, trailers and prime movers;
·setting up milk tests in the laboratory;
·washing out containers and/or bottles;
·delivering milk to cheese factories;
·dropping off cardboard and plastics to the Red Cross depot;
·taking trucks to various auto repairers;
·assisting with the refrigerator repairs on-site or in Nambour;
·driving silage to Langshaw farms; and
·assisting with factory machinery repairs.
The Applicant described five different vehicles that he recalls driving during his employment with the Respondent Company. These vehicles are:
·Isuzu prime mover - registration 884GJT;
·1993 international S3600 prime mover - registration 541WUY;
·1994 Isuzu truck - registration 991 EXF;
·Western Star prime mover - registration 722KBO; and
·Mercedes-Benz tip truck - registration 693TIA.
Employment of the Applicant
According to the Applicant, in April 2014, he had a short interview with the Second Respondent and then began a fortnight trial with the driver, Daryl, who was about to leave the employ of the First Respondent. The Applicant said that Daryl told him that he (the Applicant) would be paid fortnightly, that it would be the same wage each week; and, that he would be paid when he was sick and when he took holidays.
The Applicant said that after the fortnight trial had concluded, the Second Respondent simply told the Applicant that he “had the job” and did nothing more.
The Second Respondent testified that, at the beginning of the Applicant’s employment, he told him that he was employed on a casual basis. The Second Respondent said that the Applicant was paid a fixed amount each week based on 38 hours per week even if the Applicant worked less than this amount of hours.
The Second Respondent said that his employees, including the Applicant, were paid extra on public holidays. The Second Respondent said that whilst there was no compulsion to pay employees on holidays or sick days (because of their casual status), he nevertheless did this as a gesture of goodwill.
The Second Respondent admitted that the Applicant was not required to complete timesheets and that the company did not keep records of the hours that the employees worked.
The Applicant said that he believes that he was a full-time employee. He would tell the “office” if he wanted any days off or holidays. He said that if he were sick, he would always give the office a medical certificate.
23 December 2018
On 23 December 2018, the Applicant telephoned the Second Respondent. The Applicant said that he phoned to inquire what work he was to do over the Christmas period. The Applicant claimed that the Second Respondent told him that when he (the Applicant) completed a Brisbane run on 24 December 2018, he wanted him to transport one load of manure.
The Applicant further claimed that after making that request, the Second Respondent said to the Applicant that he also wanted him to do three loads of manure on 27 December 2018 and that this was “to make my pay worthwhile”. The Applicant said that he told the Second Respondent that three loads of manure would take him over 12 hours to do.
The Applicant claimed that he asked the Second Respondent whether he (the Second Respondent) would pay him (the Applicant) overtime. The Applicant said that the Second Respondent replied that he would not be paying overtime. The Applicant said that the Second Respondent told him not to do the manure run on 24 December 2018 and to have the rest of that day off.
The Applicant claims that the Second Respondent then reminded the Applicant that the Applicant would be working on Boxing Day, and he then hung up the phone.
In a later affidavit, the Applicant expanded on this conversation. He claimed that he told the Second Respondent that “I will work if you pay me for the extra hours”, to which the Second Respondent replied “we don’t pay overtime”. The Applicant claims that he said, “by me doing the extra loads you are getting the benefit and I’m getting nothing for the extra hours”.
The Second Respondent concedes that there was a phone conversation on 23 December 2018 and that he did ask the Applicant to complete a manure run after he had finished his Brisbane run on 24 December 2018. He concedes that he also asked the Applicant if he could complete three manure runs on 27 December 2018.
However, the Second Respondent denied that he said to the Applicant that this was to “make his pay worthwhile”. Instead, the Second Respondent said that after making this request, the Applicant replied “I will if you pay me”. The Second Respondent said that he told the Applicant words to the effect of “don’t worry about it”. The Second Respondent claims that this was the extent of the conversation.
The Second Respondent testified that there was no mention of overtime during this discussion. He also said that he felt that the Applicant was “disrespectful” of him in this conversation.
Michael Mullins, who is the farm manager for the Second Respondent, was with the Second Respondent when the Applicant made that phone call on 23 December 2018. Because the Second Respondent has problems with his hearing, all of his phone conversations are done on “loudspeaker”. Because of this, Mr Mullins was able to hear the conversation.
Mr Mullins said that he recalls the Second Respondent asking the Applicant to complete a manure run after he completed the Brisbane run. He said the Applicant replied, “I will if you pay me”. Mr Mullins said that the Second Respondent replied, “okay, don’t worry about it then” and then the call ended.
Mr Mullins said there was no conversation at all about overtime and there was no conversation where the Second Respondent told the Applicant that he would be working on Boxing Day.
The End of the Employment of the Applicant
The Applicant turned up for work on Boxing Day. He said that he expected that he would be doing the Brisbane run. However, another driver had already taken the truck and had left to do that run. The Applicant said that he felt angry and humiliated at this turn of events and took a sick day the next day. He returned to work on 28 December 2018.
The Second Respondent said that the Applicant had not done the Brisbane run on a Wednesday for at least the past four weeks. He could not understand why the Applicant had turned up that day. As per his practice, the Second Respondent still paid the Applicant for that day and the following sick day. The Applicant did a Brisbane run on 28 December and again on 31 December. He said that he worked on 2 and 3 January on manure runs.
The Applicant said that whilst he was doing the Brisbane run on 4 January 2019, he received a phone call from the Second Respondent. He said that the Second Respondent wanted to have a meeting with him when he returned from the run.
The Applicant said that, after completing the run, he went to the office and met with the Second Respondent and the accountant, Karen Moorhouse. The Applicant said that the Second Respondent told him that there were changes in the business and that he (the Applicant) was not needed anymore.

The Applicant asked whether he was being made redundant. He said that the Second Respondent said that he was and that he was giving the Applicant two weeks’ notice. He said that he asked the Second Respondent whether he would be paid for holidays and the days in lieu for the Saturdays he hadn’t taken. The Applicant said that the Second Respondent replied that the Applicant was a casual and, as such, was not paid for holidays.
The Applicant said that he protested and said to the Second Respondent that he had been previously paid for holidays and public holidays and when he didn’t necessarily work. He said that the Second Respondent didn’t reply and so he (the Applicant) said words to the effect “so I don’t get anything extra?” And the Applicant replied, “that’s right”.
The Applicant said that he thanked the Second Respondent for his employment and left. He said that he felt humiliated that he had been dismissed. He said that he continued to work for the next two weeks.
On 16 January 2019, the Applicant sent an email to the Second Respondent asking about the payment of entitlements. The email read:
Dear Dick,
As Friday is the last pay of my employment with Cooloola Milk PTL Ltd will it include my
- 2 weeks full pay per notice
- 18 weeks accumulated holiday pay
- 8 weeks redundancy pay
- 1 week extra notice pay
Thank you for taking my inquiry
Regards Greg Jess
On 18 January 2019, the Respondents replied in these terms:
Dear Greg
In response to your email below:-
-2 weeks full pay per notice was paid to you on Thursday 17/01/2019 (even though I estimate that you only worked approximately 25 hours each week). This is how you have always been paid whether you worked a full 76 hours per fortnight or not). Your pay for work today was going to be paid on the next fortnightly pay cycle however I have paid it today to finalise the matter. Payslip attached.
-You are employed on a casual basis (copy of your employment declaration –top section completed and signed by yourself- confirming casual employment). Therefore with no holiday leave or sick leave being accumulated on casual employment, 18 weeks accumulated holiday pay is not applicable. I have however paid you every fortnight whether you worked or not due to leave or sickness.
-Your separation certificate has been completed showing that there was a shortage of work through restructure of the company, not redundancy.
-1 week extra notice of pay is also not applicable as no notice is required to be given to casual employees.
Kind Regards
Richard Schroder.
The Applicant was given a separation certificate that reports that there were no other entitlements paid on termination of employment. A copy of this certificate is annexed to the first Affidavit of the Applicant at GJ-12.
The issues
There is little agreement between the Applicant and the Respondents. The main issues are these:
·Was the employment of the Applicant as a full-time employee or as a casual employee?
·What was the contract of employment?
·Which Award governed the employment of the Applicant?
·What hours did the Applicant actually work?
·Was the Applicant “not worse off” under his contract as opposed to the Award?
·If the Applicant were “worse off”, what is the extent of the underpayment?
·Did the Applicant make an enquiry about his employment on 23 December 2018?
·Did the Respondents undertake adverse action in relation to further work on 24 December 2018?
·Did the Respondents undertake adverse action in relation to work on 26 December 2018?
·Did the Respondents undertake adverse action in dismissing the Applicant on 4 January 2019?
·Depending upon the status of the employment of the Applicant, did the Respondents pay the Applicant all of his entitlements?
Credibility Generally
Many of these issues will be decided by matters of credit. However, at this point in my Reasons, it is useful to make some general observations as to the credibility of the Applicant and the Second Respondent.
I did not find that the Applicant was a witness of truth. The manner in which he gave evidence was evasive and somewhat argumentative. He did not make concessions easily, and the concessions that he did make were somewhat begrudging because he had backed himself into a corner –many of the answers he gave bordered on the incredulous. I will specifically talk about some of these later in these Reasons.
I found the Second Respondent was a witness of truth. He gave his evidence in a forthright manner and made appropriate concessions. There were many occasions where he would answer the question with what he thought probably happened but then would temper the answer with “but I don’t think I could swear to that under oath”.
Whilst I found that he was a witness of truth, there were some issues with his reliability. There were occasions where he was confused by the question and had to be taken through the scenario to properly answer the question.
I searched for corroborative evidence to both the evidence of the Applicant and the Second Respondent. I looked at the demeanour and manner in which both witnesses gave their evidence before coming to any definitive conclusions.
Contract of Employment
It is conceded by both parties that the Applicant was not given a written contract of employment. There is no agreement as to the oral terms of the contract. The terms of the contract must therefore be inferred from all the circumstances that surround the employment.
Hours worked per Fortnight
One of the key questions was the number of hours that the employment contract specified that the Applicant should perform each fortnight. The case for the Applicant was that he was employed for 101 hours per fortnight. The Respondents’ case was that the Applicant was employed for 76 hours per fortnight. The Second Respondent was adamant that the Applicant would not work, on average, anywhere near 76 hours.
The Applicant testified that he noted that he was being paid a set wage soon after he began his employment. He said that, in May or June 2014, he had a conversation with the Second Respondent during which he told the Second Respondent that he was working at least 90 hours per fortnight but only being paid for 76 hours. The Applicant said that the Second Respondent told him that he would fix up the pay.
The Applicant testified that he was initially paid for 76 hours a fortnight at the rate of $21.57 per hour, but from 27 June 2014, he was paid for 101 hours a fortnight, although the actual hourly rate remained the same.
The Second Respondent testified that the discussion he had with the Applicant was actually about the hours that were to be worked on the Sunday. The Second Respondent said that the Applicant said that he wanted “more money to make it worth my while”. The Second Respondent said that there was never any mention of the Applicant working 90 hours per fortnight.
The Second Respondent said that, in response to the issue raised by the Applicant, he increased the rate of pay of the Applicant. However, he said that he later discovered that the payroll system made an error and, instead of increasing the hourly rate, it increased the number of hours worked from 76 hours to 101 hours but kept the rate at $21.57. The result, according to the Second Respondent, was exactly the same; that is, the Applicant’s pay increased from $1639.32 gross per fortnight to $2178.57 gross per fortnight.
The Second Respondent said that he had noticed this discrepancy regarding the “hours worked” for some time, and he had made complaints to his office staff about this “glitch” in the payroll system, but they could not fix it. He said that it was not a significant problem because the money that the Applicant was being paid was the proper amount.
If this is so, it means that the hourly rate was increased from $21.57 per hour to $28.66 per hour. This would tally with what both the Applicant and the Second Respondent have said about the conversation that they had regarding pay rates. In any event, this arrangement continued for almost three years, from 27 June 2014 until 22 June 2017.
The Second Respondent testified that after June 2017, the rate increased to $29.27 an hour. This increase was now correctly reflected in the payslips of the Applicant; that is, that he was now being paid for 76 hours fortnight at the rate of $29.27 per hour.
Around 23 June 2018, the rate increased again to $30.29 an hour and the payslips of the Applicant again reflected that he was now being paid for 76 hours per fortnight at the rate of $30.29 per hour. This was the rate at which he was being paid up until his termination.
The Applicant is adamant that the increase to 101 hours per fortnight (from 24 June 2014) was correct and a proper reflection of the amount of work he was doing for all those years. He said that if he had known that the Second Respondent was keeping the hours at 76 hours a fortnight but increasing the rate, he would have left the job straight away.
I do not accept that evidence. If this were correct, it would seem to me that the Applicant would have either resigned in June 2017 when his hours were “brought back to 76” or, at the very least, have made vocal remonstrations with the Second Respondent about this decrease in hours.
When this was raised with the Applicant in the witness box, his response was that he didn’t quibble with the reduction at the time because, around June 2017, he was only working around 76 hours per fortnight. He quickly added to his explanation that soon after this “change in hours”, the amount of work he was required to do increased considerably.
The manner in which the Applicant gave this evidence was quite opportunistic, and it was evident to me that he was making this up as he sat in the witness box. According to the claim that the Applicant makes (which is predicated upon his own records), there was no diminution of work preceding June 2017.
On my quick calculations, according to the records of the Applicant, between Monday, 1 May 2017 and Sunday, 25 June 2017 (a period of eight weeks), the Applicant has claimed that he worked 372.5 hours which is an average of about 93 hours a fortnight. This is in stark contrast to his sworn testimony before me that he was only working about 76 hours a fortnight during this period.
Yet, according to the Applicant, during this period, his rate of pay increased from $21.57 an hour to $29.27 an hour with no explanation whatsoever. The Applicant did not ever query this, which is inherently incredible.
The answer of the Applicant in the witness box was a deliberate untruth designed to explain the huge discrepancy in his evidence as to the number of hours he was “officially” working. It stretches the bounds of credulity to suggest that the Applicant was of the view that he was being “exploited” during this time. The Applicant had the fortitude to approach the Second Respondent within weeks of his employment starting to present a case that he was not being paid enough money. The result of this approach was that the Second Respondent increased the pay of the Applicant quite significantly.
It then beggars belief that the Applicant would remain silent for the next 4 ½ years if he truly believed that he was being underpaid. Instead, it rather suggests that he was quite satisfied with the pay arrangements and has concocted the current tale to boost his claim before this Court. The pay arrangement is, objectively, extremely generous.
In the circumstances, I have no hesitation in finding that the payroll system of the Respondents did make an error and that the actual situation was that the Applicant was paid, between June 2014 and June 2017, for 76 hours work a fortnight at a rate of $28.66 per hour.
This leads me to conclude that the contract of employment was for the Applicant to be paid for 76 hours work per fortnight plus 8 hours of public holiday penalty rates when the Applicant worked public holidays. The contract of employment was never altered to have the Applicant paid for one hundred and one hours per fortnight. I conclude that the Applicant knows this to be true but has opportunistically seized upon the computer glitch to boost his claim.
The contract of employment was such that the Applicant would be paid that amount of money no matter how many hours he actually worked; in other words, as long as he got his job done, he was deemed to have worked 76 hours during the fortnight. The contract of employment is clear that the payment is for all aspects of employment. I will talk about “offsetting” later in these Reasons.
Was this Full-time Employment or Casual Employment?
This is not an easy question to answer. There is no definition of what deems an employee to be “casual”. Realistically, a full-time or part-time employee has a semblance of permanence about the relationship they have with their employer. Because of that permanence, there are certain rights and benefits given to such employees.
The casual employee does not have that same sense of permanence in the employment relationship. The casual employee does not have the same rights and benefits that are given to the permanent employee. To make up for that lack of benefits, a casual employee is paid around 25% more for normal work than would a permanent employee.
I was referred to WorkPac Pty Ltd v Skene [2018] FCAFC 131, Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589, Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 and Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 by both Counsel.
It has been pointed out to me that, on 26 March 2021, s 15A of the Fair Work Act 2009 (Cth) was enacted. This section is headed “Meaning of Casual Employee”. It does seem to me that the section was intended to operate retrospectively because the transitional provisions provided that “to avoid doubt, if… an employee could have made a claim for accrued relevant entitlements… the effect of (the amendment) is that the employee has not accrued, and cannot make a claim for those entitlements.”
It seems to me that the “retrospectivity” ensures that persons who were contemplating making a claim, but hadn’t done so, were now subject to s 15A rather than the situation that obtained before the enactment. But this section came into operation during the time that this matter was adjourned. The claim had already been made and was already being heard by this Court. It seems to me then that the retrospective operation of this section should not apply to my consideration of whether the Applicant, in this case, is, in fact, a casual employee.
On my reading of the authorities, a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Conversely, a casual employee does not give any such reciprocal commitment to the employer either.
The Court needs to look at whether the work patterns of the employee are regular or irregular; and whether there is uncertainty, discontinuity, intermittency or unpredictability of availability of work. The Court needs to examine the actual relationship between employee and employer.
In this case, the Second Respondent told the Applicant that he was being employed as a casual employee. The Applicant denies this, but I do not accept the evidence of the Applicant on this point. The Applicant lodged a tax file number declaration with the tax office when he commenced employment with the First Respondent. That form is reproduced as annexure RS-02 to the affidavit of the Second Respondent. In that form, there was a question, “On what basis are you paid?” The Applicant answered by crossing the box for “casual employment”.
The Applicant said, in his evidence before me, that he always thought that he was a full-time employee but that he crossed the box for casual employment because that would be “better for him tax wise”. In effect, the Applicant was admitting that he was prepared to perpetrate a fraud upon the tax office if it meant that he would benefit. It is fortunate for the Applicant that I do not accept this explanation. I find that the Applicant crossed that box because he believed and accepted that he was engaged in casual employment with the First Respondent.
Whether the employer and employee believed that the employee was engaged on a casual basis is by no means the defining characteristic of casual employment. There was certainly some regularity to the work undertaken by the Applicant. As previously noted, the Applicant would mainly do a “Brisbane run” or some other type of run on Mondays, Wednesdays and Fridays. The Applicant would mainly do the local run on Tuesdays, Thursdays, Fridays (after his Brisbane run) and on Sundays. (I do note that this arrangement eroded over time to the point where the Applicant was doing a Brisbane run far less regularly and hardly ever did the local run during the last 12 months of his employment).
However, notwithstanding what the Applicant now claims, there was little regularity as to the start time for these runs and no regularity as to when they would finish. The Applicant would often be asked to do other tasks, as has already been noted. Again, there was no regularity as to these tasks or what it is that he would be required to do on any given day.
When the Applicant gave evidence, he was asked about lunch breaks. He said that he “never had lunch in my life unless I was in the car, never stop for lunch because we were paid for a certain amount of hours so the sooner we finished then the sooner we got home, so half an hour was nothing”(My underlining). This is an admission that there weren’t set hours, only set tasks. Once those tasks were completed, the Applicant could do what he wanted, which included “going home”.
The Applicant was paid for his holidays and for any days in which he couldn’t work because he said that he was sick. The Second Respondent said that he (and the First Respondent) did this as a measure of goodwill and that it made the calculation of wages that much easier. Being paid for holidays and sick days does seem to be indicia of full-time employment because there is no need to pay a casual employee on days that they do not work, for whatever reason.
The Second Respondent gave the Applicant two weeks’ notice upon his termination of employment. There was no need to provide any notice to a casual employee. When asked as to why he gave the two weeks’ notice to the Applicant, the Second Respondent said, in evidence before me, that he made a mistake and should have given the Applicant three weeks’ notice.
Whenever the Applicant notified the First respondent (mainly through Linda O’Halloran) that he wanted to not work, the First Respondent simply had someone else do the duties of the Applicant but still paid the Applicant nevertheless. If the Applicant notified the First Respondent that he was too ill to attend work, the First Respondent made other arrangements and the Applicant was still paid.
As previously noted, the Applicant’s duties changed somewhat dramatically in 2017, when he began to mainly drive the “dog and cart” for farm work. Again, as previously noted, this was not part of the core business of the First Respondent.
There are many arguments that can be made for and against the determination as to whether the Applicant was a permanent employee or a casual employee. In the end, the determination is a finding of fact for me. The following circumstances I find to have been the most relevant to my consideration. These are:-
·the Second Respondent’s offer of employment as a casual employee;
·the Applicant’s acceptance of employment as a casual employee;
·the Applicant’s tax file declaration being marked by the Applicant as “casual employment”;
·the payment of the Applicant of a set amount per fortnight;
·the payment being inclusive of all entitlements and for all hours that he worked;
·the payment still continued even when he was absent from the workplace;
·the Applicant could choose to work or not to work and did so;
·the Applicant gave notice of when he would not be working simply so that other arrangements could be made by the first respondent;
·the Applicant was never refused, by the first or Second Respondent, any choice to not work;
·the Second Respondent would contact the Applicant to do other work;
·the different tasks that the Applicant actually did during the course of his employment;
·the start times and finishing times were irregular;
·the hours of work varied depending upon what task was asked of the Applicant to complete; and
·the Applicant did expect to be working whenever he was able to work.

In my view, these factors militate towards a finding that the Applicant was actually a casual employee. While it was that the Applicant always expected to have work with the First or Second Respondent whenever he wanted, it was not always the same work. What work the Applicant did was dependent upon the requirements of the First or Second Respondents.
Notwithstanding that the Applicant claims that there was a firm advance commitment to continuing and indefinite work, there was no agreed pattern of work. Further, as Counsel for the Respondents points out, the relevant Award supports the contention that “an expectation of work” can sit explicitly within the definition of a casual employee. Clause 12.5 (b) of the Road Transport and Distribution Award 2010 (“the Short Haul Award”) states, “an employer must, wherever practicable, notify a casual employee if their services are not required the next working day”.
For these reasons, I find that the Applicant was employed as a casual employee.
Under which Award/s is the Employment of the Applicant Covered?
There is a need for some interpretation of the Road Transport (Long Distance Operations) Award 2010 (“the Long Haul Award”) and the Short Haul Award. The Applicant claims that his employment was pursuant to the Short Haul Award. However, whenever he undertook a “run” to Labrador or Baffle Creek his employment was temporarily pursuant to the Long Haul Award.
Consistent with cl 3 of the Long Haul Award, the Award applies to employment where a driver will be required to drive return journeys of more than 500 km. Clause 4.2 of the Long Haul Award states that “the award does not cover an employee while they are temporarily required by their employer to perform driving duties which are not on a long distance operation, provided the employee is covered by (the short haul award) while performing such duties”.
Clause 4.2 of the Long Haul Award is a clear indication that employees covered by the Long Haul Award can temporarily be covered by the Short Haul Award.
But that does not mean that the converse is true. Clause 4.2 of the Short Haul Award relevantly states that “this Award does not cover employees and employers covered by… (The Long Haul Award) whilst undertaking long-distance operations”.
That clause is a clear indication that employees covered by the Short Haul Award are not temporarily covered by the Long Haul Award should their task temporarily include a return journey of over 500 km.
It seems to me then that the proper Award for determining the claim made by the Applicant is the Short Haul Award.
Is the Applicant “better off overall”?
I am grateful to both Counsel for the calculations that they have provided to the Court. Having established that it is the short haul award that is applicable in this case, the Court must determine at what “grade” the Applicant should be classified. The classification varies according to the vehicle that is driven. This is why the type of vehicle that the Applicant drove on any given day is important.
According to the Award, and the evidence of the Second Respondent, the Applicant was either a grade 3, 4 or 6 on any given day. Therefore, if it is that the Applicant drove different vehicles on any given day, his classification is deemed to be at the highest classification of vehicle driven that day.
The Applicant has submitted that he should be classified as a grade 6 worker for the whole of his employment. I do not accept this as being the case. His classification clearly varied on each day of his employment. However, it is too big a task to go through each and every day of the Applicant’s employment and determine which vehicle he drove and therefore what his classification was for that day.
I have decided to take the simplest course (which is also the most advantageous for the Applicant and may be entitling him to a far more favourable classification than is truly the case). For the purposes of these calculations, I have treated the Applicant as performing grade 6 classification work for each day of his employment.
The award sets out a minimum hourly wage rate for a full-time adult employee and states that the casual worker must have a 25% loading on that minimum full-time rate for a grade 6 transport worker.
The following table sets out the calculations as well as what the Applicant was actually paid.

Award Period

Period Applicant Worked

Casual Rate

What the Applicant was paid

1.7.13-30.6.14

2.5.14-26.6.14

$23.39

$21.57

1.7.14-30.6.15

27.6.14-30.6.15

$24.16

$28.66

1.7.15-30.6.16

1.7.15-30.6.16

$24.78

$28.66

1.7.16-30.6.17

1.7.16-21.6.17

$25.36

$28.66

1.7.17-30.6.18

22.6.17-22.6.18

$26.20

$29.27

1.7.18-30.6.19

23.6.18-18.1.19

$27.13

$30.29

Ordinary hours of work are defined, in the Award, as between 5:30 AM and 6:30 PM. Overtime is applicable for all work completed outside ordinary hours. All work done outside ordinary hours would therefore be paid at time and a half (150%) for the first two hours and double time (200%) thereafter continuing until the completion of the overtime work.
Penalty rates apply for work done on public holidays. The Second Respondent said that employees were always paid extra on public holidays. He was not challenged on this point.
Having established what the contract of employment under which the Applicant was working and the appropriate award provisions that related to the Applicant’s employment, the Court must decide whether there has been a true underpayment.
To be able to ascertain this, the Court must decide, on the evidence, what hours the Applicant actually worked. This has been the main point of contention during the trial.
The Handwritten Work Diary of the Applicant
The Applicant’s claim is based upon a document which is annexure GJ-2 to the affidavit of the Applicant filed on 10 October 2019. In this affidavit, the Applicant explains that “after I was told I had the job, I started keeping a daily record of all the hours that I worked”.
He claimed that annexure GJ-2 was a copy of the days and hours that he had worked for the duration of his employment. Reproduced below is a sample of the schedule, which is GJ-2. As can be seen, the Applicant has handwritten the entries. Further, the Applicant claimed that he made the entries on a daily basis.
After the Applicant had filed this affidavit, providing the particulars of when he worked and for how long he worked, the Respondents presented a number of NDWDDS and milk collection sheets that the Applicant filled out during the course of the employment. This exposed approximately 50 distinct discrepancies in the handwritten document of the Applicant.
In his later affidavit, filed on 10 February 2020 (which admitted those discrepancies), the Applicant explained that the annexure GJ-2 is a handwritten copy of the original record he kept during his employment not an original document itself.
The Applicant said that he transcribed the original by hand because he didn’t use computers. He said that he believed the original was lost around the time he moved house in 2019. He said that he wasn’t careful with the original because he knew he had a copy.
He said he began keeping the records after his first two weeks in the job because he “thought it was fishy that the First Respondent didn’t keep track of the hours” he was working. He said that he also thought that he might be able to use the records to prove how hard he was working and get a raise.
There are inherent difficulties with this tale. There was no explanation as to why the Applicant had not disclosed that GJ-2 was a copy in his first affidavit. The excuse that the Applicant gave for the 50 distinct discrepancies was that he had written the document in advance and that when things changed he “must have forgotten to go back and fix them up”.
However, this explanation does not account for a significant number of the discrepancies. It certainly does not account for his original claim to be working when he was, in fact, on holiday.
Even more puzzling is that the Applicant claimed that he wanted to use the records to prove how hard he was working and get a raise. Yet, he never used them for this purpose, nor did he ever ask the Second Respondent about getting a raise after their conversation in mid-2014.
The schedule that was produced, during the adjournment, by the Respondents is illuminating. It is too large a spreadsheet to ever be printed. It reproduces the document GJ-2 but correlates the dates in that document with payslips, milk tanker collection sheets, national driver work diary daily sheets, invoices for delivery of manure, feedlot tickets, weighbridge dockets, Curra quarries tax invoices, GK haulage tax invoices, purchase orders, order forms and FAST reports.
Examination of what those other documents detail enables a different picture of the Applicant’s workday to be easily inferred. For example, on 24 August 2014, the Applicant claimed that he worked the tanker from 7:30 AM till 2:30 PM. The milk tanker collection sheets show that the Applicant picked up the first amount of milk at 8:10 AM and the last amount of milk at 11:05 AM. As the last dairy is very close to the milk factory, the Applicant would have been back at the factory by 11:30 AM. Yet, according to the Applicant, he did not finish work for another three hours.
There are many other such examples littered throughout the documentation. There were numerous occasions where the times on the collection sheets were quite a number of hours before the Applicant claimed that he had finished work.
The Applicant was asked, on a number of occasions, to explain what he did for those “unexplained” hours. He described that he would empty the truck, test the milk and wash the truck. He said that those tasks could take up to 90 minutes. However, that still often left another 90 minutes or so unaccounted.
The Applicant, somewhat argumentatively, said, in answer to questions about what he did, that he would “sometimes take the truck to the mechanics, sometimes give it a full polish, sometimes pick goods up from Coles or drop off at Red Cross, go to other transport companies, do farm work, take another truck to be fixed, take gravel or manure, help in the factory if things needed fixing” and various other odd jobs to fill his day.
Whilst I accept that the Applicant did do those other tasks (which is in keeping with his status of being a casual worker), I don’t accept that this could explain the numerous “unexplained hours”. If there were so many other aspects of work that the Applicant would do, one would expect quite different start and finish times. Yet, there was an incredible regularity to the records that he claimed were made every day. The regularity would be explicable if one were doing exactly the same work each day. However, in attempting to justify his claim, the Applicant stated that there was no true regularity to his day, which belies the finishing times that he has written in GJ-2.
As well as this, there was clear evidence that the Applicant had tampered with his copy of the NDWDDS on a number of occasions. For example, he had handwritten the word “load” to indicate that he had started at an earlier time than the document would otherwise record. When these records were compared to the duplicate records held by the first respondent, the discrepancy was clear.
The explanation that the Applicant gave was that he had “amended” his copy at a later date to better illustrate what it was that he did on that particular day as he must have neglected to note when he began to load the truck. However, there are other copies in the possession of the First Respondent that did include a loading time. Therefore, the inference that I make is that the Applicant has fabricated those particular documents in an attempt to boost his claim.
I do not accept that the document GJ-2 is an accurate representation of the hours that the Applicant worked, and I give it very little weight.
The Effect of Section 557C
In order to protect vulnerable workers, the Parliament enacted Section 557C of the Fair Work Act 2009 (Cth) (“the FW Act”) on 15 September 2017. The relevant parts of the section are set out below:
557C Presumption where records not provided
(1) If:
(a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an Applicant makes an allegation in relation to a matter; and
(b) the employer was required:
(i) by subsection 535(1) or (2) to make and keep a record; or
(ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or
(iii) by subsection 536(1) or (2) to give a pay slip;
in relation to the matter; and
(c) the employer failed to comply with the requirement;
the employer has the burden of disproving the allegation.
(2) Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).
Before the enactment of this section, employers, who had not kept proper records, could still defeat a claim made by an employee because the employee would be forced to prove their claim against the employee. In many ways, this “rewarded” employers who were not complying with the requirements to keep records.
As can be seen from this section; the legislation designates certain consequences that flow from an employer not keeping records. If it is that an allegation pertaining to a civil remedy provision is made by an employee, and the employer has not kept proper records, it is now for the employer to disprove the allegation.
There is no retrospectivity to this section (which is distinct from s 15A). This means that the section does not affect any claim made prior to 16 September 2017.
There is no question here that the first respondent has not kept proper employment records. The claim that the Applicant has made is that he worked certain hours on certain days. The effect of this section is that for every day, after 16 September 2017, it is for the First Respondent to disprove that what the Applicant said that he did on those days is what he actually did.
In effect, the claim for underpayment made by the Applicant is a two-part claim; the first part involves his employment from 2 May 2014 to 15 September 2017, and the second part involves his employment from 16 September 2017 until 18 January 2019.
The First Part of the Claim
The evidence in relation to this part of the underpayment claim consists of the Applicant’s assertions that he worked the hours that are in his document marked GJ-2. For the reasons I have already expressed, I have no faith in that document as being an accurate record of what the Applicant did during his employment.
What I am left with is evidence that shows that the Applicant was paid well and truly above the award rate for the period 2 May 2014 to 15 September 2017. When I look at the totally dis-satisfactory nature of the document GJ-2, the dishonesty with which that document was created and other factors (to which I will refer later in these reasons), I am not satisfied that the Applicant ever worked more than 76 hours a fortnight.
There may be periods where the Applicant did work outside of ordinary hours and, therefore, was to be paid overtime. I cannot be sure of when those periods actually occurred.
However, it is clear to me that the Second Respondent was paying casual rates well and truly above the award rate. This was so that he would not just meet his statutory obligations but surpass them in such a way that his employees would feel that their employer was “looking after them”.
If it is that the First Respondent did not pay the correct overtime, I am of the view that the nature of the contract of employment is such to entitle the First Respondent to “offset” any previous or subsequent “overpayment” against any underpayment for overtime if such underpayment ever actually existed.
I have also had regard to the calculations given to me by the Respondents. I accept that even on a very generous view of what the Applicant has claimed, he was paid more than $35,000 (and probably closer to $50,000) more than what he would have been paid, over the course of his employment, if he were only paid according to Award rates.
The first part of the underpayment claim fails.
The Second Part of the Claim
I must assess whether the First Respondent has disproved that the Applicant worked, as he has claimed he worked, from 16 September 2017 to 18 January 2019. One approach may be to look at each particular day and to see whether the first respondent has been able to disprove the claim.
There is an artificiality to my assessment of the second part of the claim. I have already come to the conclusion that the document GJ-2 is a totally unreliable document and is, in many respects, a work of fiction. But the effect of s 557C is that, despite what I have previously found regarding the document, I have to accept that in purporting to detail what hours the applicant worked each day (from 16 September 2017 to 18 January 2019) has been proved unless the first respondent can disprove the particular claim.
As an example, on 17 September 2017, the Applicant has claimed that he has done a local run and worked from the hours of 7:30 AM to 2:30 PM. However, the milk truck collection sheets show that the first collection of milk occurred at 9:25 AM and the last collection of milk occurred at 12 PM. Therefore, in this particular scenario, even accepting that the Applicant first drove to the furthest farm, I cannot accept that if the Applicant began work at 7:30 AM, the first milk would not go into the tank until 9:25 AM. Similarly, if the last collection of milk began at midday, I cannot accept that the Applicant would not finish work until 2:30 PM. Because of this, I find that the first respondent has disproved that claim.
Another approach may be to look overall at what the Applicant has claimed and see whether there is material that would generally disprove the claim. This is a more time-efficient way to confront the issue and does take a “broad brush” approach. But, whilst it may be that there are particular days in which the Applicant’s claim may be suspicious, it would not be sufficient for particular suspicions to amount to a “disproving” of the allegation.
There are 489 days between 16 September 2017 and 18 January 2019. The Applicant has claimed that he worked on 340 of those days. As the Applicant would have to complete a milk tank collection sheet if he were doing a local run or fill out a NDWDDS if he were doing a Brisbane run, it is easy to see that there is a record of the Applicant’s work on those days.
However, if the Applicant worked at the dairy or driving the dog and cart, there would be no other independent record. The Applicant produced another document which he said was his “farm diary”. The “farm diary” became Exhibit 8 in the proceedings. It was the only “original” document produced, and I have examined the document carefully. The Applicant claimed that he wrote his starting hours and his finishing hours for every day that he worked on the farm in this diary.
As Counsel for the Respondents points out, there are times when the Applicant has claimed that he has been doing one particular job, but the corroborating material shows that he was doing another job. For example, the Applicant may have said that he was doing a “Brisbane run”, but there was no NDWDDS for that date. Instead, there was a milk collection sheet for that date. There are also times where the Applicant claimed that he was doing farm work, but there was no entry in his own farm diary to that effect.
For this second part of the claim, there were 41 such occasions. Given that the Applicant has made a claim for 340 days, for 41 of them to have no corroborating material is disturbing. It amounts to 12% of the claimed days, and there was no satisfactory explanation as to how this had occurred.

Despite all of these issues, the only valid way to disprove the claims is to look at each individual day. Therefore, I have looked at what the Applicant has said were his duties on each particular day and have compared them to the corroborative material, including the farm diary. Where the corroborative material leads me not to accept the claim of the Applicant, I have found that the Respondents have disproved the Applicant’s claim to my satisfaction on the balance of probabilities using the Brigginshaw sliding scale.
I am extremely wary about the reliability of the farm diary. The diary itself seems to have been a concoction, and the pages do not have the appearance of what one would expect if an entry was made every day. But the test is not whether the Applicant has proved that the diary is genuine; it is whether the Respondent has proved that it is not.
The Applicant claimed that he worked for 30 minutes cleaning the truck at the end of each run with the truck. Tendered into evidence before me was a video taken from CCTV cameras that showed the Applicant cleaning the truck after a Brisbane run on 18 January 2019. The Applicant cleaned the truck for a total of 50 seconds at 10:46 AM. Yet his claim before me was that the cleaning of the truck took him 30 minutes. Having seen the video and the general demeanour of the Applicant, the First Respondent has disproved each of the claims of the Applicant to have cleaned the truck for 30 minutes after a run.
I am satisfied that any cleaning of the truck was done during the time that the Applicant has claimed that he was “in charge” of the truck; these are the times that he has written in the NDWDDS documents.
I am also satisfied that the Applicant had to take a 30 minute unpaid meal break. Notwithstanding that I have accepted his “Freudian slip” that he didn’t stop for lunch because he was paid for a certain amount of hours and so the sooner he finished then, the sooner he got home, the Applicant has nevertheless used his NDWDDS records as part of his claim, and those records show that there have been meal breaks.
Consistent with my earlier findings, I have found that any claim based upon a NDWDDS record that has been tampered with by the Applicant has also been disproved by the First Respondent.
Concerning the milk collection sheets, if the start times claimed by the Applicant are any longer than one hour before the first collection of milk occurs, or the end time claimed by the Applicant is any longer than one hour after the final milk collection began, then that claim has been disproved by the First Respondent.
I have examined each of the days the Applicant claimed to work from 16 September 2017 to 18 January 2019, and I have applied the criteria above. There may be some instances where I have found the criteria did fit, but nevertheless, I did not find that the claim had been disproved. But there were a number of other dates where I was satisfied that the First Respondent had disproved the claim.
Generally speaking, I have found that the First Respondent has, with a few exceptions, not been able to disprove any claim that did not involve a milk collection, or “local”, run or a “Brisbane run” during this time period.
I find that First Respondent has been able to disprove the claims on the following days:-
·17, 19, 21,22 ,24 ,26, 27, and 28 September 2017;
·1, 5, 6,10, 18, and 27 October 2017;
·1, 3,6, 10, and 13 November 2017;
·15, 18, 20, 22, and 27 December 2017;
·3,5, 15, and January 2018;
·2, 15, and 19 February 2018;
·10, 13, and 26 April 2018;
·4 May 2018;
·10 August 2018;
·21 September 2018;
·9, 16, and 23 October 2018;
·13 November 2018;
·4 December 2018; and
·4,7 and 18 January 2019
As previously noted, I found that the First Respondent has been able to disprove any claim that the Applicant cleaned the truck for 30 minutes or more. On those dates, I have accepted the claim for the hours worked but have deducted the 30 minutes for cleaning the truck.
I have also decided that the claims, which the First Respondent has been able to disprove, does not mean that I have found that the Applicant did not work on any of those days. I have, however, looked at those days using a formula that allows for a period of six hours from the start of the NDWDDS for that Brisbane run, a period of five hours for a local run and a period of seven hours for a combined Brisbane and local run (or a combination of tasks).
On my calculations, I have allowed a claim of the Applicant for the period from 16 September 2017 to 18 January 2019 of 2775 hours. Of those hours, 92 of them were overtime, but all of them were at the “under two hours” overtime rate. The overtime rate from 17 September 2017 to 30 June 2018 was $33.54 an hour (which is $7.24 an hour more than the award rate), and from 1 July 2018 until 18 January 2019 was $34.72 an hour (which is $7.49 an hour more than the award rate).
On my calculations, multiplying 92 hours by $7.49 gives a total of about $690 which in turn would be equivalent to an extra 26 hours at the award rate. This means that I have accepted that the Applicant worked a total of 2801 hours between 16 September 2017 and 18 January 2019.
The Applicant was paid a constant rate during that particular period. That period is 489 days which is equivalent to 70 weeks. The Applicant was paid for working 38 hours each week. This means that the Applicant was paid for 2660 hours. This means that the claim that the Applicant makes is that he worked 141 hours more than what he was paid.
However, the Applicant was paid just over $3 an hour more than the Award rate for the whole of this period. Thus, using the “set off” principles that I have earlier used, the Applicant is far better off under the regime in which he was actually employed and paid than if he were paid as a casual worker under the Award.
The second part of the claim also fails, and the whole claim for underpayment is therefore dismissed.
The Events of 23 December 2018 and 4 January 2019
The Applicant submits that he has been the subject of adverse action by what transpired on 23 December 2018 and 4 January 2019.
Firstly, the Applicant contends that the Second Respondent withdrew an offer for the Applicant to do a “manure run” on 24 December 2018. The Applicant says that the withdrawal of the offer injured him in his employment and altered his position to his prejudice. The Applicant claims that he lost the opportunity to work and be paid overtime for completing the manure run.
Secondly, the Applicant contends that the Second Respondent withdrew his shift on Boxing Day 2018 after reminding the Applicant that he would be working that day. As a result, the Applicant claims that he was injured in his employment and his position was altered to his prejudice because he lost the opportunity to be paid public holiday pay for working on Boxing Day.
Thirdly, and most importantly, the Applicant contends that the First Respondent, through the agency of the Second Respondent, dismissed him and that the dismissal is adverse action.
With respect to the first two allegations, the Applicant must prove that there was an actual withdrawal of work and that there was an injury to his employment and a prejudicial alteration of his position. Once the Applicant has proved those matters (if he can), it is for the First Respondent to prove to me that such action was not the result of an impermissible reason.
Concerning the third allegation, there is a question as to whether this was a dismissal that is adverse action. Again, if it is proven to me that the dismissal is adverse action, then it must be proved that the Applicant was exercising a workplace right. If those two aspects are proven, then it is a matter for the First Respondent to prove to me that such dismissal was not because of an impermissible reason.
Withdrawal of work
The allegations of the Applicant rely upon the Court accepting his version of the conversation that he had with the Second Respondent on 23 December 2018. The findings that I’ve already made about the credibility of the Applicant would normally weigh heavily in determining the factual basis for this claim. However, in this case, there is the unchallenged evidence of Mr Michael Mullins. Because the conversation was on speakerphone, Mr Mullins heard the whole conversation and not just half of the conversation (as was alleged in the written submissions of the Applicant).
Mr Mullins was not truly challenged on his evidence, and I accept his evidence in full. The Second Respondent asked the Applicant if he would do an extra manure run after he had finished his Brisbane run on 24 December 2018. To my mind, this was a tacit admission by the Second Respondent that if the Applicant did do such a manure run, then he would be working longer than he would usually be required to work.
According to the Applicant, he had already been working the sort of hours that the Second Respondent was now asking him to work for some time. Therefore, if the Applicant is correct, there would have been no reason for the Second Respondent to actually ask the Applicant; he would simply direct the Applicant to complete the work as he had done many times before. It is also very peculiar that, if the Applicant is correct about the hours he had done in the past at the direction of the Second Respondent, why is it that this was the first time in four and a half years the Applicant had asked for extra payment?
But the fact that the Second Respondent specifically asked the Applicant whether he would do this extra work speaks volumes as to what had been the employment situation over the last 4 ½ years. It was implicit in the Second Respondent’s request that he was acknowledging that he was asking the Applicant to do something extra than what he would normally do.
The Applicant’s response was to say, “I will if you pay me”. The Second Respondent’s reply was, “don’t worry about it then” which then concluded the conversation. However, there was no question that the Second Respondent was expecting that the Applicant would undertake extra work as reciprocal appreciation for what the Second Respondent had done with the very generous employment conditions that the Applicant enjoyed.
I accept that the Second Respondent felt that the Applicant had been disrespectful. I can understand why the Second Respondent felt that way. The Second Respondent was paying the Applicant well above the casual award rate; he was paying him a set amount regardless of how little the Applicant actually worked; and, he was paying the Applicant for days where he did not work when he had no obligation to do so. And, when he asked the Applicant to do something extra, the Applicant expected to receive even more money.
This was not a withdrawal of work as the Applicant would seek to characterise it. The Applicant was still paid exactly the same amount that he would have been paid if he had done the extra work. There was no injury in his employment, nor was his position altered to his prejudice. There has been no adverse action, and so this aspect of the claim must be dismissed.
The Applicant contends that the Second Respondent reminded him that he would be working a Brisbane run on Boxing Day. Consistent with the evidence of Mr Mullins, I find that there was no such conversation at all. The Applicant did turn up ready to do a Brisbane run on Boxing Day, but there does not seem to be any rhyme or reason as to why this occurred. On the Applicant’s own claims, he had not done a Brisbane run on a Wednesday since 7 November 2018. It seems to me that the Applicant either made a mistake or simply decided to turn up on Boxing Day.
There was no withdrawal of work because there was never even the slightest hint that the Applicant would need to work on Boxing Day. The Applicant was still paid according to his very generous terms of employment. He has not been injured, nor has his position been altered to his prejudice. There has been no adverse action, and so this aspect of the claim must also be dismissed.
Dismissal
As previously recounted, the Second Respondent informed the Applicant that he would be no longer employed with the First Respondent. The dismissal occurred on 4 January 2019. The Second Respondent gave the Applicant two weeks’ notice.
For the reasons I have already recited, I have found that the Applicant was a casual employee. There was no need to give the Applicant a notice period but, whether through confusion or through the goodness of his heart, the Second Respondent still gave the Applicant such a notice period.
Under casual employment arrangements, there is an ability for an employer or an employee to simply end the employment arrangement whenever either wishes to do so. In this respect, cessation of casual employment is not adverse action. Accordingly, I agree with the submissions of the Respondents that the exclusion given pursuant to s 342(3) of the FW Act fits these circumstances.
However, I should countenance the possibility that I may be in error in that conclusion. If the dismissal is not excluded by s 342(3), then clearly dismissing an employee is adverse action.
The Applicant has claimed that he exercised a workplace right. This has been particularised in the Amended Statement of Claim as being:-
·an enquiry as to whether he could or would be paid overtime for performing additional hours of work on 24 December 2018 and 27 December 2018; and
·a complaint made to the Second Respondent that the First Respondent did not pay overtime for work which attracted overtime rates.
These complaints were said to have been made in the phone conversation which occurred on 23 December 2018. I have already concluded that in that conversation, there was no such complaint or enquiry made. The Applicant has failed to prove this aspect that he has particularised. All that was said by the Applicant, when asked if he would do the extra work, was “I will if you pay me”.
It is difficult to see that this could ever be the exercise of a workplace right. It is not an enquiry or a complaint in relation to his employment. It is simply his reply to a request that he perform some extra duties.
The Applicant has alleged that adverse action was taken because of the circumstance that he made particular inquiries and complaints about overtime, he must establish the existence of that circumstance as an objective fact (see Tattsbet Limited v Morrow [2015] FCAFC 62 per Jessup J at [119] ). The Applicant has failed to do so, and therefore the claim would fail.
If I were wrong about that aspect, and what the Applicant said (“I will if you pay me”) could be seen to be a complaint or enquiry, I would then have to decide whether the First Respondent had discharged the onus of proving to me that the dismissal did not come about because of that exercise of a workplace right.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, the High Court said at paragraph [45]
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
The evidence of the Second Respondent must be scrutinised. The Second Respondent said that he thought that the Applicant was disrespectful during the conversation of 23 December 2018. The Second Respondent said that respect between employer and employee is essential. It was put to the Second Respondent that he was concerned that the Applicant would keep asking him about pay, and so that was the reason that he dismissed the Applicant. The Second Respondent denied this.
The Second Respondent said, in evidence before me, that there was no work left for the Applicant. He said that a driver needed to be young and fit to do the milk run and that the Applicant did not fit that bill anymore. He said that his plan was to use the Applicant to do farm work. He said that he was looking for efficiencies, and he told the Applicant that he was terminating the employment because of a lack of efficiency.
The Second Respondent said that he had been considering the efficiency of his business for some time. He said that the Applicant was not doing the same number of runs and rarely did the milk collection by January 2019. The Second Respondent became more reliant upon a contractor to be delivering manure.
The Second Respondent conceded that he had written in the “separation certificate” that the reason for the cessation of employment was “unfortunately position became annulled due to company restructure”. The Second Respondent said that he believed that this reason and “efficiencies” meant the same thing.
The Second Respondent said that the matters about pay did not cross his mind when he decided to dismiss the Applicant.
I accept that evidence. This means that even if dismissal from casual employment was adverse action, and even if the Applicant had established that he had exercised a workplace right, the First Respondent has discharged their onus and proven, to my satisfaction, that the dismissal was not because of a prohibited reason.
All claims for adverse action are dismissed.
False or Misleading Representations
The Applicant claims that the First Respondent has breached s 345 of the FW Act in that the company had misrepresented to the Applicant that he was a casual worker and not owed the award entitlements of a full-time worker.
As I have already concluded that the Applicant was a casual worker, there was no misrepresentation, and therefore, this aspect of the claim is dismissed.
Record keeping
Section 535 of the FW Act reads as follows:-
Employer obligations in relation to employee records
(1)An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
(2)The records must:
(a) if a form is prescribed by the regulations — be in that form; and
(b) include any information prescribed by the regulations.
(3) The regulations may provide for the inspection of those records.”
Relevantly, reg 3.33(2) and reg 3.34 of the Fair Work Regulations 2009 (Cth) (“the FW Regulations”) read as follows:
(2) If the employee is a casual or irregular part‑time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee.
….
3.34 Records—overtime
For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies:
(a) the number of overtime hours worked by the employee during each day; or
(b) when the employee started and ceased working overtime hours.
It is clear that the hours recorded on the payslips do not reflect the hours that were actually worked by the Applicant. There is a clear contravention of reg 3.33(2).
Even though the Applicant and the First Respondent had an employment agreement that allowed for the Applicant to work as little as he needed to get his job done and still be paid at a set rate, the Award was still the instrument that should have dictated the employment, unless there was an Enterprise Agreement that had been given the imprimatur of the Fair Work Commission.

This meant that the First Respondent should have kept a note of all the overtime hours, that is, any time that the Applicant was working outside of the hours of 5:30 AM and 6:30 PM. It did not do this, and so, therefore the regulation was breached.
I find that the First Respondent has breached s 535 of the FW Act.
Should there be a Declaration?
A declaration that an employer has contravened the FW Act is a public denunciation of the behaviour that has led to the breach. This is because the balance sought by the legislature, through the FW Act, can only be maintained by all sides complying with the provisions of the Act. When an employer acts to the detriment of an employee, that action needs to be publicly denounced. Similarly, if an employee (or employee group) acts to the detriment of an employer, there must also be a denunciation of that behaviour.
In this case, there was absolutely no intention on the part of the employer, in any way, to interfere with or diminish the rights and privileges of the employee. Whilst there may have been a disregarding of many of the facets of the Award, it was not to the detriment of the employee. As I have found, the employer was extremely generous to the employee.
Nevertheless, the provisions of the FW Act have been contravened. I am of the view that declarations must be made.
Is the Second Respondent accessorily liable for the contravention?
The answer to this question is found by examining s 550 of the FW Act. Subsection (2) of that provision reads as follows:
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
The Second Respondent has certainly procured the contravention. It has been his decision that the employees are paid a set amount no matter what hours they actually work. It was his decision not to record any overtime hours.
Having regard to the structure that was set in place, there was no need to record hours and certainly no need to record overtime. But, as was said before, the Second Respondent had a responsibility to comply with the provisions of the Award.
I find that the Second Respondent was accessorily liable for the contravention.
Pecuniary Penalty
Having made a declaration, I now need to consider imposing a pecuniary penalty upon the First Respondent and the Second Respondent.
I note that both the Applicant and the Respondents said that they wished to make submissions on pecuniary penalties if it were that I was to make a declaration that there had been a contravention of the FW Act.
Having regard to the fact that the only declaration I will be making is in regard to record keeping and that this contravention was not something that truly affected the Applicant, I have decided that I do not need the assistance of Counsel in making a decision regarding pecuniary penalties. Whilst I am appreciative of their offers of assistance, in keeping with their desires to ensure that legal costs are kept to a minimum, I have decided to simply make the decision upon the well-known principles.
The principles that govern the imposition of pecuniary penalties are well known. In Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7, (“the Pangea case”), the Court set down a list of a number of matters that the Court ought to take into account in the assessment of civil penalties.
I have had regard to the whole of that list. However, I have not slavishly followed it as if it were some form of checklist to arrive at some form of mathematical calculation for what is to be the appropriate penalty.
The factors that are apposite to my consideration are as follows: the circumstances in which the conduct took place; the nature and extent of any loss or damage; whether there was any similar previous conduct; whether the breaches were properly distinct or arose out of the one course of conduct; the size of the company; the deliberateness of the breaches; the involvement of senior management; the contrition, corrective action and cooperation by the Respondents; the need to ensure compliance with minimum standards by providing effective means for investigation and enforcement of employee entitlements; and, deterrence.
Most of these matters have been well and truly canvassed by me already in the course of these Reasons. The Second Respondent said, during the course of his evidence, that the company has totally changed how they go about recording the hours worked by their employees. The Second Respondent said that the First Respondent has been advised by a company conversant with the need to comply with the FW Act and has changed their practices accordingly.
It goes without saying that there needs to be a reliable method by which an objective assessment of whether the First Respondent has complied with their obligations to their employees. Where an employer has consciously decided not to comply with the Act, and thereby have not maintained any reliable method for objectively assessing compliance, the Court must issue its condemnation in the strongest possible terms.
However, the very generous Respondents have been put through the expense and frustration of a trial that would have been avoided if the Respondents had complied with the Award. Unfortunately for the Second Respondent, no good deed goes unpunished. I certainly can understand the frustration and disappointment that the Second Respondent would feel when he has given the Applicant the benefit of a very generous remuneration over the course of 4 ½ years, only for the Applicant to turn around and make this quite dishonest claim.
Because of the provisions of s 557C of the FW Act, this was always going to be a very difficult trial for the Respondents to defend and a huge amount of time, money and energy has been required to be expended in mounting a defence where every day that the Applicant worked had to be cross checked with many collateral documents. This cannot be recovered in this “no costs” jurisdiction as there have been no circumstances that would enliven the Court’s discretion under s 570 of the FW Act.
To my mind, this equates to extra-curial punishment. There is no need to compound this further with the imposition of a pecuniary penalty. Having regard to all of the circumstances, I decline to make any pecuniary penalty.

I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.
Dated: 7 July 2021

File number(s):	BRG 279 of 2019
Judgment of:	JUDGE VASTA
Date of judgment:	7 July 2021
Catchwords:	INDUSTRIAL LAW – claim for underpayment – casual v full time worker – proper award – is the applicant better off? – no records kept by respondents – effect of s 557C – adverse action – whether there was an exercise of workplace right – has respondent discharged the onus – contravention of record keeping requirements – declarations made – no pecuniary penalty ordered
Legislation:	Fair Work Act 2009 (Cth) ss 15A, 342(3), 345, 535, 550, 557C, 570 Fair Work Regulations 2009 (Cth) regs 3.33(2), 3.34 Road Transport (Long Distance Operations) Award 2010 Road Transport and Distribution Award 2010
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589 Tattsbet Limited v Morrow [2015] FCAFC 62 WorkPac Pty Ltd v Skene [2018] FCAFC 131
Number of paragraphs:	235
Date of last submission/s:	15 June 2021
Date of hearing:	17 and 18 February 2020 and 10 and 11 May 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Latham
Solicitor for the Applicant:	Anderson Gray Lawyers
Counsel for the Respondents:	Ms Willson
Solicitor for the Respondents:	Employsure Law Pty Ltd

order made by:	JUDGE VASTA
DATE OF ORDER:	7 July 2021

Award Period	Period Applicant Worked	Casual Rate	What the Applicant was paid
1.7.13-30.6.14	2.5.14-26.6.14	$23.39	$21.57
1.7.14-30.6.15	27.6.14-30.6.15	$24.16	$28.66
1.7.15-30.6.16	1.7.15-30.6.16	$24.78	$28.66
1.7.16-30.6.17	1.7.16-21.6.17	$25.36	$28.66
1.7.17-30.6.18	22.6.17-22.6.18	$26.20	$29.27
1.7.18-30.6.19	23.6.18-18.1.19	$27.13	$30.29