Kaur v P & G Accounting Solution Pty Ltd

Case [2025] FedCFamC2G 30

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kaur v P & G Accounting Solution Pty Ltd [2025] FedCFamC2G 30

File number(s): MLG 2666 of 2021
Judgment of: JUDGE FORBES
Date of judgment: 23 January 2025
Catchwords: INDUSTRIAL LAW – Fair Work – application for compensation and pecuniary penalties alleging serious contraventions of the Fair Work Act – where applicant performed work for putative employer over two distinct periods – whether applicant was employed or engaged in unpaid work experience – whether employment was continuous - where the arrangement between the parties had a migration purpose – where applicant was employed for one of the two periods – whether the respondents required the applicant to pay money to fund the costs of her employment – whether employee subjected to undue influence or pressure - where payments made by the applicant to the respondent – whether by reason of employee’s payments the employer discharged obligations under relevant Award and statutory obligations – determination of effective date of termination – where arrangement after termination intended to give impression of ongoing employment – contraventions of Fair Work Act found – accessorial liability of business owner - declarations made
Legislation:

Evidence Act 1995 (Cth) s 140

Fair Work Act 2009 (Cth) s 12, 13, 44, 45, 61, 90, 117, 124, 125, 293, 323, 325, 344, 345, 536, 545, 550, 557A, 793

Migration Act 1958 (Cth) s 245AR

Migration Amendment (Charging for a Migration Outcome) Act 2015 (Cth)
Cases cited:

Ashby v Slipper [2014] FCAFC 15

Briginshaw v Briginshaw (1938) 60 CLR 336

CCL Secure Pty Ltd v Berry [2019] FCAFC 81

Chiodo v Silk Contract Logistics [2023] FCA 1047

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consume Commission[2007] FCAFC 132

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

Evans v Braddock[2015] NSWSC 249

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

Fair Work Ombudsman v Devine Marine Group Ltd [2014] FCA 1365

Fair Work Ombudsman v Foot & Thai Massage [2021] FCA 1241

Fair Work Ombudsman v Hu [2019] FCAFC 133

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

Fox v Percy (2003) 214 CLR 118

Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)

JMC Pty Ltd v Federal Commissioner of Taxation [2022] FCA 750

Kazal v Thunder Studios Inc (California) [2023] FCAFC 174

Kuligowski v Metrobus [2004] HCA 34

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369

Liberato v R (1985) 159 CLR 507

Mealey v Power [2015] NSWSC 1678

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66

Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391

Primerano v Schisan Investments Pty Ltd [2025] FCA 15

Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948

Roberts-Smith v Fairfax Media Publications Pty Ltd(No.41) [2023] FCA 555

Transport Workers’ Union of Australia v Qantas…

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AGLC
Kaur v P & G Accounting Solution Pty Ltd [2025] FedCFamC2G 30
Case
[2025] FedCFamC2G 30
Decision Date

CaseChat Overview and Summary

The case of Kaur v P & G Accounting Solution Pty Ltd involved a dispute between the applicant, Ms Gagandeep Kaur, and the respondents, P & G Accounting Solution Pty Ltd (KPG) and its managing director, Mr Parampreet Singh Rajput. Kaur alleged serious contraventions of the Fair Work Act by the respondents, including non-payment of wages, undue influence, and a kickback arrangement. The crux of the dispute revolved around Kaur's employment status and whether she was paid for the work she performed at KPG. Kaur claimed she worked for KPG over two distinct periods and alleged that she was not paid for the first period. The respondents argued that Kaur was not an employee and that any work she performed was unpaid experience pending the grant of a training visa. The central legal issues included determining whether Kaur was an employee, the nature of her employment arrangement, whether she was subjected to undue influence or pressure, and if the respondents discharged their obligations under the relevant award and statutory obligations. The court examined the evidence and found that Kaur was indeed an employee for one of the periods and that the respondents contravened the Fair Work Act by not paying her for the first period and by requiring her to pay money to fund the costs of her employment. The court also found that the respondents engaged in conduct that amounted to a kickback arrangement, which was contrary to Australian workplace, taxation, and superannuation laws. Based on these findings, the court held the respondents in accessorial liability for the contraventions of the Fair Work Act. The court made declarations regarding the contraventions and ordered the respondents to pay compensation and pecuniary penalties. The court also determined the effective date of termination of Kaur's employment, which was pivotal in assessing the penalties owed. The court's decision was based on a comprehensive analysis of the evidence presented, focusing on the key issues and competing narratives.

Orders

Orders of the court

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Background

Background to the litigation

In this judgment is not possible to traverse every piece of evidence and every inconsistency – and there are many. My efforts in summarising the evidence have been directed to explaining how the competing narratives stand apart and identifying the evidence which ultimately informs and determines the key issues in dispute.BACKGROUNDIntroduction to the parties As mentioned, the applicant, Ms Gagandeep Kaur, is an Indian citizen. She was born in Punjab, India and came to Australia in April 2009 as a 16-year-old teenager. Ms Kaur arrived in Australia on a student visa to complete her schooling and then embarked on tertiary studies. The applicant completed a Bachelor of Accounting at Cambridge International College in July 2018. At the commencement of the period relevant to these proceedings, Ms Kaur lived with her brother, Mr Jatinder Singh Gill (Jatinder). The applicant has a particularly close relationship with her brother. Although the applicant is married, she and Jatinder share finances, she has access to his credit cards and he transfers money to her when she requires it. The applicant gave evidence that her husband paid the rent, but that her brother pays for everything else. As will emerge during the course of these reasons Jatinder played a significant role in matters relating to the applicant’s employment, effectively acting as her agent. At all relevant times the first respondent conducted the business known as “P & G Accounting Solution” or KPG Taxation (KPG). KPG is a national system employer within the meaning of the Fair Work Act 2009 (Cth). The second respondent, Mr Parampreet Singh Rajput (Mr Rajput), was and remains the managing director of the first respondent. He is the sole director and shareholder of KPG and its various subsidiaries. It is not contested that he had authority on behalf of the first respondent to direct the performance of the applicant’s work, the times and days on which she worked and he controlled the timing and quantum of payments made to the applicant. KPG has several offices located around Australia. The head office is located in Dandenong. Mr Rajput was based in the Dandenong office. In early 2018, an office in Craigieburn was opened. The manager of the Craigieburn office at the relevant time was Mr Raj Barot and as will be seen in these reasons he too is the subject of a number of serious allegations.Circumstances of the applicant’s introduction to KPG The student visa which permitted Ms Kaur to remain in Australia expired in January 2018. Her application for a further student visa was refused in March 2018. She sought a merits review of that refusal by the Migration Review Tribunal (MRT). Ms Kaur completed her Bachelor of Accounting at Cambridge International College in mid-2018. After she completed her tertiary studies Ms Kaur was able to remain in Australia on a bridging visa while her application for review of the student visa refusal was awaiting hearing by the MRT. Her work rights pursuant to the bridging visa were limited to 40 hours per fortnight.

Evidence

Evidence Before The Court

When this evidence was put to Mr Rajput he said he had “no idea” about any cash payments of $1,700[77]. Mr Rajput denied that he demanded kickbacks or received them as alleged by the applicant. The respondents submit that there is no proof of such payments having been made and argue that no nefarious purpose should be inferred from the applicant’s bank statements because the withdrawals of cash could have been for the applicant’s or her brother’s own purposes.[77] Transcript Day 5 P-423Tendency evidence The applicant’s case is that the alleged kickback arrangement was part of a pattern of conduct which was systematic and deliberate and designed to appear compliant with visa conditions and Australian workplace, taxation and superannuation laws. The applicant argues that KPG and Mr Rajput engaged in the very type of conduct which was expressly criminalised by the Migration Amended (Charging for a Migration Outcome) Act 2015 (Cth) which introduced amendments to Subdiv D of Div 12 of Pt 2 of the Migration Act1958 (Cth) (especially, s 245AR[78]).[78] Pursuant to s 245AR of the Migration Act 1958 it is an offence for a person to ask for or receive a benefit from another person in return for the occurrence of a sponsorship-related event. At trial the applicant called three witnesses, Ms Simmy Bhatia, Ms Ziniya Singh and Ms Navdeep Kaur, to give evidence regarding their own alleged “kickback” arrangements while they worked for KPG. The applicant contends that the experience of these other former employees is probative and lends weight to the plausibility of her own evidence. The applicant submits that the evidence of these three witnesses revealed a tendency on the part of Mr Rajput to have engaged in kickback demands. Ms Bhatia said that her husband and Mr Rajput agreed that she would work for KPG, and pay Mr Rajput the cost of her wages. She claims that for about 8 months in 2017, she gave Mr Rajput $1,000 per week or $2,000 in cash to cover her wages, and that her wages were only transferred to her after providing the cash payment. Ms Bhatia annexed a bank statement, which shows payments from KPG going into her account, but it otherwise provided scant support to her claim that she withdrew cash just prior to being paid. Ms Ziniya Singh, who deposed that she worked for KPG between 2012 and 2013, said that she gave Mr Rajput $1,250-1,300 per fortnight, and was paid $662 plus super in return. Ms Singh said that the payment is evidenced by payslips, annexed to her affidavit. Ms Singh said she agreed to the arrangement prior to commencing work for KPG. Ms Navdeep Kaur gave evidence that she worked for KPG between late 2017 and early 2018, when she was subsequently fired, and was never paid at all for her work. The respondents say that Ms Navdeep Kaur never worked for KPG and fabricated the story about not getting paid. The applicants say that the evidence of Ms Bhatia, Ms Singh and Ms Kaur proves the tendency of Mr Rajput’s engagement in a “kickback” scheme in the past and suggests he is likely to do it again.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondents deny the applicant’s allegation[47] that in or around early November 2018 Mr Rajput told her that he was about to go overseas on a holiday with his family, that KPG could not meet the promise to pay the applicant’s sponsorship expenses and that if she was to pay her own sponsorship expenses Mr Rajput would reimburse her when he returned to Australia[47] FASOC at [13]Remuneration for the first period of work It is the applicant’s case that 24 November 2018 was her last day of work for this First Period[48]. [48] Affidavit of Gagandeep Kaur dated 3 June 2022 at [61] The applicant did not receive any wages for work performed between 27 August 2018 and 24 November 2018[49]. She contends that she was entitled to be paid for that period.[49] Affidavit of Gagandeep Kaur dated 3 June 2022 at [43] Ms Kaur pleads that the terms and conditions of her employment contract were partly oral and partly evidenced in writing. Insofar as they were oral, Ms Kaur relies on her claim to having been told at the original interview in August 2018 that she would work 40 hours per fortnight and would be paid $21.45 per hour. Insofar as they were evidenced in writing, the applicant says that the relevant terms of her employment are those set out in the 12 November 2018 Letters[50]. [50] FASOC at [22]–[23] In her affidavit, the applicant deposes that on three separate occasions she asked Mr Rajput why she had not been paid - in early October 2018, late October 2018 and on 12 November 2018[51]. Mr Rajput rejects these allegations and says that at no stage did Ms Kaur approach him about pay or ask why she was not getting wages. He says that there was never any expectation Ms Kaur would be paid and he did not ask for her bank details until February 2019[52].[51] Affidavit of Gagandeep Kaur dated 3 June 2022 at [43]-[51][52] Affidavit of Parampreet Singh Rajput dated 23 August 2022 at [24] The applicant also alleges that she was required to complete an application for a Tax File Number (TFN) during this first period of work. The respondents deny this and allege that she did not sign a TFN application until after she commenced full-time work for KPG in February the following year. The respondents admit that the applicant was not paid any remuneration for any “work” she performed during that period 27 August 2018 to 24 November 2018. They say there was no employment agreement and the applicant was not entitled to any remuneration. The respondents assert that the common understanding of the parties was for the applicant to develop some baseline skills by participating in unpaid work experience pending the grant of a training visa.Return to India and visa grant On 29 November 2018 the applicant returned to India for the purpose of finalising and filing her application for a sponsored training visa. It is common ground that this was an application she could only make from abroad. On 6 December 2018, through the migration agent Mr Sekhon, she applied for a subclass 407 training visa.