Jin v Premium Travel Solutions Pty Ltd - [2022] FedCFamC2G 22

Federal Circuit and Family Court of Australia
(DIVISION 2)
Jin v Premium Travel Solutions Pty Ltd [2022] FedCFamC2G 22

File number(s): SYG 891 of 2021

Judgment of: JUDGE HUMPHREYS

Date of judgment: 24 January 2023

Catchwords: INDUSTRIAL LAW – Fair Work Act – Passenger Vehicle Transportation Award – whether employee or independent contractor – whether second respondent accessorily liable.

Legislation:
Fair Work Act 2009 (Cth) ss 45, 536, 545, 546, 550.

Passenger Vehicle Transportation Award 2010

Cases cited:
Ace Insurance Limited v Trifunovski (2013) 209 FCR 146

Australian Building and Construction Commissioner v Parker [2017] FCA 564

Australian Securities and Investments Commission v ActiveSuper Pty Ltd(in liq) [2015] FCA 342

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

Dafallah v Fair Work Commission [2014] FCA 328

Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134

Fair Work Ombudsman v A to Z Catering Solution Pty Ltd and Anor (No 2)

Fair Work Ombudsman v Blue Impression Pty Ltd [2017] FCCA 810

Fair Work Ombudsman v Chatime Australia Pty Ltd [2022] FedCFamC2G 934

Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209

Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd and Ors (No 3) [2020] FCCA 521

Fair Work Ombudsman v Step Ahead Security Services Pty Ltd [2016] FCCA 1482

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 13

Division: Division 2 General Federal Law

Number of paragraphs: 56

Date of last submission/s: 20 December 2022

Date of hearing: 6 December 2022

Place: Parramatta

Counsel for the Applicant: Mr Furlan

Counsel for the Second Respondent: In person
ORDERS

SYG 891 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ZHENG HUI JIN

Applicant

AND:
PREMIUM TRAVEL SOLUTIONS PTY LTD

First Respondent

CHANGXIN FEI

Second Respondent

YE ZHAO

Third Respondent

order made by:

JUDGE HUMPHREYS

DATE OF ORDER:

24 January 2023

THE COURT ORDERS THAT:
1.A declaration be made that, by operation of s 550 of the Fair Work Act 2009 (Cth) (“Act”), the Second Respondent, Changxin (Richard) Fei is taken to have contravened s 45 of the Act by reason of his being involved in the following contraventions of s 45 of the Act by the First Respondent.
(a)Failure to pay the minimum ordinary time rate of pay to the Applicant in breach of clause 14.1 of the Passenger Vehicle Transportation Award 2010 (“Award”) in respect of any of the Applicant’s work for the First Respondent at any time between January 2016 and June 2018 (“Work Period”);
(b)Failure to apply casual loading to the Applicant’s pay in breach of clause 10.5(c) of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period.
(c)failure to pay early and late work penalty rates in breach of clause 23.5 of the Award in respect of any of the Applicant’s work for the First…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FedCFamC2G 22
Decision Date: 24 January 2023

CaseChat Overview and Summary

The case of Jin v Premium Travel Solutions Pty Ltd involved the plaintiff, Mr Jin, who claimed that he was misclassified as an independent contractor by Premium Travel Solutions Pty Ltd, and consequently, he was not paid the correct wages, penalty rates, and superannuation contributions as required under the Passenger Vehicle Transportation Award. The dispute was heard by the Federal Circuit and Family Court of Australia. The primary legal issue before the Court was whether Mr Jin was an employee or an independent contractor of Premium Travel Solutions Pty Ltd during the relevant period from January 2016 to June 2018. Additionally, the Court needed to determine whether the second respondent, Mr Fei, was accessorily liable for the alleged contraventions of the Fair Work Act by Premium Travel Solutions Pty Ltd.

The Court considered the evidence provided by Mr Jin, including his affidavits, the time sheets he kept, and the relevant award provisions. The Court found that Mr Jin's work arrangement with Premium Travel Solutions Pty Ltd was not consistent with that of an independent contractor. Instead, Mr Jin's work was subject to significant control and direction by Premium Travel Solutions Pty Ltd, and he performed work that was an integral part of the company's business. Consequently, the Court held that Mr Jin was an employee of Premium Travel Solutions Pty Ltd during the relevant period. Furthermore, the Court found that Mr Fei, as a director and shareholder of Premium Travel Solutions Pty Ltd, was accessorily liable for the company's contraventions of the Fair Work Act.

Based on the findings, the Court ordered a declaration that Mr Fei contravened section 45 of the Fair Work Act by reason of his involvement in Premium Travel Solutions Pty Ltd's contraventions of the Act. The Court also ordered Mr Fei to pay compensation to Mr Jin in the sum of $92,386.09 within 28 days of the date of the orders. Finally, the Court scheduled further directions to be held on 10 March 2023 to address the issue of penalty.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. A declaration be made that, by operation of s 550 of the Fair Work Act 2009 (Cth) (“Act”), the Second Respondent, Changxin (Richard) Fei is taken to have contravened s 45 of the Act by reason of his being involved in the following contraventions of s 45 of the Act by the First Respondent.

(a) Failure to pay the minimum ordinary time rate of pay to the Applicant in breach of clause 14.1 of the Passenger Vehicle Transportation Award 2010 (“Award”) in respect of any of the Applicant’s work for the First Respondent at any time between January 2016 and June 2018 (“Work Period”);

(b) Failure to apply casual loading to the Applicant’s pay in breach of clause 10.5(c) of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period.

(c) failure to pay early and late work penalty rates in breach of clause 23.5 of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period;

(d) failure to pay overtime rate to the Applicant for hours worked in excess of 10 hours and less than 13 hours in breach of clauses 21.3 and 23.1 of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period;

(e) failure to pay overtime rate to the Applicant for hours worked in excess of 13 hours in breach of clause 23.2 of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period;

(f) failure to pay penalty rates for Saturday work in breach of clause 23.2 of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period;

(g) failure to pay penalty rates for Sunday work in breach of clause 23.2 of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period;

(h) failure to pay penalty rates for Public Holiday work in breach of clause 23.4 of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period;

(i) failure to make superannuation contributions on behalf of the Applicant in breach of cluse 20 of the Award in respect of any of the Applicant’s work for the First Respondent during the Work Period.

2. The Court orders, pursuant to s 545(1) of the Act, that the Second Respondent, Changxin (Richard) Fei, pay compensation to the Applicant in the sum of $92,386.09 within 28 days of the date of these orders.

3. The Applicant to file any evidence and written submission on penalty, of no more than 10 pages, on or before 14 February 2023.

4. The Second Respondent to file any evidence written submission on penalty, of no more than 10 pages, on or before 7 March 2023.

5. The matter be listed for Directions at 9:30am on 10 March 2023.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The proceedings then continued with only the third respondent, Mr Fei. Mr Fei was self-represented. He had been legally represented initially, but his legal representation withdrew very early in the proceedings after filing a Response to the applicant’s Initiating Application.The Evidence While he spoke reasonable English, Mr Fei was assisted by an Interpreter at times. Critically, Mr Fei failed to file any Affidavit material or other material upon which he sought to rely as evidence to defend the claims made by the applicant. He cross examined the applicant and was invited to give oral evidence, but declined to do so. Mr Fei did not seek to tender in Court any other documentary material upon which he relied. Thus, the Affidavit evidence before the Court consisted of the following (including attachments):1. Affidavit of Mr Jin sworn 16 Dec 2021;2. Affidavit of Mr Jin sworn 21 Mar 2022;3. Affidavit Mr Fan Bu, Solicitor, sworn 5 December 2022. Other documentary evidence included a copy of the relevant award, various extracts from ASIC regarding Premium, and translations of some records, including time sheets kept by the applicant. According to the ASIC documentation, Premium was founded by Mr Fei and Mr Zhao on 9 May 2009. Each were appointed as a Director and held 50% of the shares of the company until 1 July 2011. Mr Fei was a Director of the company at all times from its incorporation until 22 June 2018, and also remained a shareholder from its incorporation until 25 October 2018. Again, it is common ground that part of Mr Fei’s role and duties was to arrange and allocate work to Premium’s drivers, including the applicant.Was the applicant an independent contractor or an employee? It is common ground that the applicant did not enter into any written employment contract with Premium. It is thus necessary to look at the parties conduct to determine the nature and terms of the contact the applicant entered into: (see; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [83] (“Personnel Contracting”)). The applicant gave evidence that after operating a cleaning business, he decided to sell that business and work as a bus driver. During driver training, he met a man who told him that he worked as a bus driver for “Richard Fei’s” company. The applicant then rang Mr Fei who told him that there were opportunities within the company. The applicant deposes that he asked what the salary was and was told the following:a. $130 per day for a city tour;b. $140 per day for a Blue Mountains tour;c. $40 for airport transfers; andd. an additional $20-$30 per day for longer distances. The applicant states that Mr Fei told him that he could work as many or as few days per month as he wanted to. During 2015, the applicant did some driving for Premium but also worked as a school bus driver. In late 2015, he states that he asked Mr Fei if he could come and work at the company for a long time. The applicant then began working full-time for Premium as a tour bus driver from 1 January 2016 to 30 June 2018.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYG 891 of 2021
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	24 January 2023
Catchwords:	INDUSTRIAL LAW – Fair Work Act – Passenger Vehicle Transportation Award – whether employee or independent contractor – whether second respondent accessorily liable.
Legislation:	Fair Work Act 2009 (Cth) ss 45, 536, 545, 546, 550. Passenger Vehicle Transportation Award 2010
Cases cited:	Ace Insurance Limited v Trifunovski (2013) 209 FCR 146 Australian Building and Construction Commissioner v Parker [2017] FCA 564 Australian Securities and Investments Commission v ActiveSuper Pty Ltd(in liq) [2015] FCA 342 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 Dafallah v Fair Work Commission [2014] FCA 328 Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 Fair Work Ombudsman v A to Z Catering Solution Pty Ltd and Anor (No 2) Fair Work Ombudsman v Blue Impression Pty Ltd [2017] FCCA 810 Fair Work Ombudsman v Chatime Australia Pty Ltd [2022] FedCFamC2G 934 Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209 Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd and Ors (No 3) [2020] FCCA 521 Fair Work Ombudsman v Step Ahead Security Services Pty Ltd [2016] FCCA 1482 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 13
Division:	Division 2 General Federal Law
Number of paragraphs:	56
Date of last submission/s:	20 December 2022
Date of hearing:	6 December 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Furlan
Counsel for the Second Respondent:	In person

SYG 891 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ZHENG HUI JIN Applicant
AND:	PREMIUM TRAVEL SOLUTIONS PTY LTD First Respondent CHANGXIN FEI Second Respondent YE ZHAO Third Respondent

order made by:	JUDGE HUMPHREYS
DATE OF ORDER:	24 January 2023