Kramer & Anor v Punthill Apartment Hotels Pty Ltd & Anor
[2020] FCCA 1617
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KRAMER & ANOR v PUNTHILL APARTMENT HOTELS PTY LTD & ANOR | [2020] FCCA 1617 |
| Catchwords: INDUSTRIAL LAW – Alleged contraventions of the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) – application of the Hospitality Industry (General) Award 2010 (Cth) – meaning of a hotel – meaning of a retail licenced establishment – underpayment of wages – failure to keep employment records – accessorial liability of an individual – breach of employment contract – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 13, 14, 46, 47, 48, 143, 535, 536, 550, pt. 2-2. Fair Work Regulations 2009 (Cth), regs.3.31, 3.33, 3.34, 3.35, 3.36, 3.37, 3.38, 3.39, 3.40, 3.42, 3.43, 3.36. Health (Prescribed Accommodation) Regulations 2001 (Vic). Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (Cth). Liquor Control Reform Act 1998 (Vic) ss. 7, 12, 14. Motels, Accommodation and Resorts Award 1998 (Cth), cl.6.1.1. Public Health and Wellbeing Act2008 (Vic), ss.3, 4, 67, 68, 74. Public Health and Wellbeing Regulations 2009 (Vic), regs.4, 13; pt. 5 div. 2. Retail Tenancies Act 1986 (Vic). Whitehorse Planning Scheme, cl.73.03. Workplace Relations Act 1996 (Cth), s.576C(1). |
| Cases cited: City of Wanneroo v Australian Municipal Administrative, Clerical and Services Union [2006] FCA 813 City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 Davies v Punthill Apartment Hotels Pty Ltd [2014] FCCA 1158 Kucks v CSR Limited (1996) 66 IR 182; [1996] IRCA 141 Wellington v Norwich Union Life Insurance Society Ltd [1991] VicRp 27; [1991] 1 VR 333 |
| First Applicant: | LILLI KRAMER |
| Second Applicant: | MUTHUMUNI CHALITHA DE SILVA |
| First Respondent: | PUNTHILL APARTMENT HOTELS PTY LTD |
| Second Respondent: | ROBIN LYNNE CARAS |
| File Number: | MLG 2650 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 15, 16 and 17 October 2019 |
| Date of Last Submission: | 17 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Counsel for the applicants: | Mr Galbraith |
| Solicitors for the applicants: | Willon Legal |
| Counsel for the respondents: | Mr Bell |
| Solicitors for the respondents: | Arnold Block Leibler |
ORDERS
The applicants’ applications filed 5 December 2017 as amended on 21 December 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2650 of 2017
| LILLI KRAMER |
First Applicant
and
| MUTHUMUNI CHALITHA DE SILVA |
Second Applicant
and
| PUNTHILL APARTMENT HOTELS PTY LTD |
First Respondent
and
| ROBIN LYNNE CARAS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants were employed by the first respondent, initially as relief managers and then as resident managers.
In their claim, the first and second applicants alleged that:[1]
a)the first respondent failed to pay them their full entitlements under the Hospitality Industry (General) Award 2010 (“the Award”) in contravention of the Fair Work Act 2009 (Cth) (“the FW Act”) (“underpayment claim”);[2]
b)the first respondent failed to comply with its record keeping obligations under the FW Act and the Fair Work Regulations 2009 (Cth) (“the Regulations”) (“record keeping claim”);[3] and
c)the second respondent was involved in the various contraventions of the FW Act engaged in by the first respondent and pursuant to section 550(1) of the FW Act is taken to have committed the contraventions herself (“accessorial liability claim”).[4]
[1] Applicants’ outline of submissions filed 10 September 2019 at paragraphs 1 to 3.
[2] Applicants’ amended statement of claim filed 21 December 2018 at paragraphs 1 to 47.
[3] Applicants’ amended statement of claim filed 21 December 2018 at paragraphs 48 to 56.
[4] Applicants’ amended statement of claim filed 21 December 2018 at paragraphs 3A and 56A to 56D.
The first applicant also claimed the first respondent breached its contractual obligation to pay her a salary of $55,000 per annum plus superannuation of 9.5% from on or about 9 October 2014 to the date of termination (“first applicant’s contractual claim”).[5]
[5] Applicants’ amended statement of claim filed 21 December 2018 at paragraphs 57 to 61; applicants’ outline of submissions filed 10 September 2019 at paragraph 4.
Undisputed facts
Many of the relevant facts were not in dispute. However, the key issue in dispute was the nature of the business conducted by the first respondent, and in particular whether it was a ‘hotel’ or a ‘retail licenced establishment’ for the purposes of the Award. This will be discussed further below.
It was not disputed that:
a)the first respondent was, at all relevant times, carrying out a business in which it provided accommodation for a fee from the premises at 300 Burwood Highway, Burwood, Victoria (“Punthill Burwood”);[6]
b)the applicants were employed from at least 20 June 2012 to on or about 20 February 2018;[7]
c)the applicants were, at all relevant times during the claim period, national system employees within the meaning of section 13 of the FW Act;[8]
d)the applicants were, at all relevant times, entitled to the benefit of the National Employment Standards contained in part 2-2 of the FW Act;[9]
e)the first respondent was, at all material times, a constitutional corporation within the meaning of section 12 of the FW Act and a national system employer within the meaning of section 14 of the FW Act;[10]
f)the first respondent, was at all material times, operating Punthill Burwood;[11]
g)the applicants were employed on a full time and ongoing basis by the first respondent;[12] and
h)the second respondent was, at all material times, an officer, employee or agent of the first respondent and aware of the applicants’ employment with the first respondent.[13]
[6] Applicants’ outline of submissions filed 10 September 2019 at paragraph 5.
[7] Applicants’ outline of submissions filed 10 September 2019 at paragraph 6(a).
[8] Applicants’ outline of submissions filed 10 September 2019 at paragraph 6(b).
[9] Applicants’ outline of submissions filed 10 September 2019 at paragraph 6(c).
[10] Applicants’ outline of submissions filed 10 September 2019 at paragraphs 6(d) and (e).
[11] Applicants’ outline of submissions filed 10 September 2019 at paragraph 6(f).
[12] Applicants’ outline of submissions filed 10 September 2019 at paragraph 6(g).
[13] Applicants’ outline of submissions filed 10 September 2019 at paragraphs 6(h) and (i).
It was also not in dispute that the first respondent:
a)held liquor licences issued pursuant to the Liquor Control Reform Act 1998 (Vic);[14] and
b)was registered as a ‘motel/hotel’ by the City of Whitehorse under the Health (Prescribed Accommodation) Regulations 2001 (Vic) and related legislation.[15]
[14] Applicants’ outline of submissions filed 10 September 2019 at paragraph 8.
[15] Applicants’ outline of submissions filed 10 September 2019 at paragraph 9.
The significance of these matters for the issues before this court is considered below.
Finally, there was also no real dispute regarding the applicants’ duties as resident managers at Punthill Burwood.
Issues
Underpayment claim
In relation to the underpayment claim, the applicants’ case was put on the following (alternative) basis:
a)the applicants were employed as ‘hotel managers’ for the purpose of item D.2.9 of schedule D of the Award, and the Award applies to the first respondent either because:[16]
i)it is a ‘hotel’; or
ii)it is an ‘other retail licensed establishment’;
(collectively, “the D.2.9 claims”); or
b)in the alternative, if the court did not accept this primary submission, then the applicants ought properly be characterised as ‘front office grade 3 classification’ staff pursuant to item D.2.9 of schedule D of the Award, and have not been paid as such (“front office grade 3 claims”).
[16] Applicants’ outline of submissions filed 10 September 2019 at paragraphs 35 to 56.
Record keeping claim
The applicants further claimed that the first respondent breached section 535(1) of the FW Act and regulation 3.42 of the Regulations.
Accessorial liability claim
If the court accepts the applicants’ case that the first respondent breached the Award or its record keeping obligations under the Regulations, the applicants’ further claimed that the second respondent was ‘involved’ in those contraventions and therefore liable under section 550 of the FW Act.
First applicant’s contractual claim
In relation to the first applicant’s contractual claim, the court must consider the terms of the employment contract between the first applicant and the first respondent and determine whether, properly interpreted, the employment contract provides for a base salary of $55,000.
Underpayment claim
The underpayment claim turns on whether the Award applies to the first respondent in respect of the applicants’ employment and, if so, what parts of the Award apply.
Award interpretation
The principles which apply to award interpretation are well settled. The difficulty in this case, as in many like it, arises from the application of those principles to the facts before the court.
As noted by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182; [1996] IRCA 141:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning (emphasis added).[17]
[17] Kucks v CSR Limited (1996) 66 IR 182; [1996] IRCA 141 at [184].
It is also well settled that an award is to be construed having regard to its context and purpose. As noted in City of Wanneroo v Australian Municipal Administrative, Clerical and Services Union [2006] FCA 813:
Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. … It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd [1993] FCA 51 at 518.[18]
[18] City of Wanneroo v Australian Municipal Administrative, Clerical and Services Union [2006] FCA 813 at [53].
Having regard to these principles and the comments of French J in City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 and the cases cited therein:
a)the interpretation of an award starts from a consideration of the ordinary general meaning of its terms;
b)the words are to be read as a whole and in context;
c)any ambiguity may be resolved by considering the history and subject matter of the award and having regard to industrial realities; and
d)in interpreting an award, the court should avoid applying overly literal or technical approach.
The Award
It is uncontroversial that a modern award only imposes an obligation or confers an entitlement on a person if the award applies to that person.[19] A modern award applies to a person if it covers the employee or employer and is not otherwise excluded from operating in relation to the employee.[20]
[19] Fair Work Act 2009 (Cth), s. 46.
[20] Fair Work Act 2009 (Cth), s. 47.
Relevantly, section 48(1) of the FW Act provides:
A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.
Clause 4.1 of the Award further provides that it:
…covers employers throughout Australia in the hospitality industry and their employees in the classifications within Schedule D – Classification Definitions to the exclusion of any other modern award…
Clause 4.2 goes on to say:
For the purposes of clause 4.1, hospitality industry includes hotels; motor inns and motels; boarding establishments; condominiums of a like nature; health or recreational farms; private hotels; guest houses; serviced apartments; caravan parks; ski lodges; holiday flats or units, ranches or farms; hostels, or any other type of residential or tourist accommodation; wine saloons; wine bars or taverns; liquor booths; resorts; caterers; restaurants operated in or in connection with premises owned or operated by employers otherwise covered by this award; casinos; and function areas and convention or like facilities operating in association with the aforementioned. (underlining added)
Clause 20 of the Award prescribes the minimum wages for employees in the various classifications covered by the Award. Clause 19 relevantly provides that the definitions of the classification levels in clause 20 are contained in schedule D – classification definitions.
Schedule D then sets out the classification definitions in the following streams:
a)D.2.1: food and beverage stream;
b)D.2.2: kitchen stream;
c)D.2.3: guest services stream;
d)D.2.4: administration stream;
e)D.2.5: security stream;
f)D.2.6: leisure activities stream;
g)D.2.7: stores stream;
h)D.2.8: maintenance and trades – other than the cooking trade; and
i)D.2.9: managerial staff (hotels).
It is common ground that the managerial staff classification only applies to ‘hotels’ as defined. The dispute between the parties is whether that definition covers the work undertaken by the applicants.
Relevantly, item D.2.9 of schedule D of the Award provides:
For the purpose of this additional classification, hotels means hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.
In this additional classification, hotel manager means an employee (however designated) who:
●under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and
●directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and
●implements policies, procedures and operating systems for the hotel;
but excludes an employee who is employed to undertake the duties of senior management, responsible for a significant area of the operations of one or more hotels. Indicative position titles for such an employee include:
●…
●Venue manager;
●…
An employee appointed as a Manager will have completed an appropriate level of training in business management or have relevant industry experience including the supervision of staff in one or more areas of an hotel. In a General Hotel, this classification is commonly known as an Assistant manager. In an Accommodation Hotel, this classification may include any of the following positions: Duty manager… or equivalent position. (emphasis and underlining added)
The applicant’s primary argument was that the first respondent was a ‘hotel’ and therefore fell within both the definition of ‘hospitality industry’ in clause 4.1 and also the definition of ‘hotel’ at item D.2.9 of schedule D of the Award.[21]
[21] See applicants’ outline of submissions filed 10 September 2019.
The applicants’ submission in this regard relied upon:
a)the history of the pre-reform awards and definitions contained within those documents;
b)the ordinary meaning of the term ‘hotel’;
c)the first respondent’s name including the word ‘hotel’; and
d)references in the first respondent’s own marketing material and the like to itself as a ‘hotel’.
In response, the first respondent submitted that when regard is had to the award modernisation process and the proper interpretation of the term ‘hotel’ for the purposes of item D.2.9 of schedule D of the Award:[22]
a)‘serviced apartments’ do not fall within the meaning of ‘hotel’ for the purpose of item D.2.9 of schedule D of the Award;
b)as a matter of fact, the first respondent is a ‘serviced apartment’ for the purposes of the Award; and
c)consequently, the applicants are not covered by item D.2.9 of schedule D of the Award.
[22] See respondents’ outline of submissions filed 24 September 2019.
In the alternative, the applicants argued that the first respondent was a ‘retail licensed establishment’ and therefore, as managers within that establishment, the applicants fell within item D.2.9 of schedule D of the Award.[23]
[23] See applicants’ outline of submissions filed 10 September 2019.
Whilst the respondents conceded the first respondent held a limited liquor licence at all relevant times to permit them to provide alcohol at conferences and functions, they denied that this brought them within the meaning of a ‘retail licenced establishment’ for the purposes of item D.2.9 of schedule D of the Award.[24]
[24] See respondents’ outline of submissions filed 24 September 2019.
History of the Award
It is common ground that the Award was made following the award modernisation process undertaken by the Australian Industrial Relations Commission, as it then was, commencing in March 2018.
The pre-reform awards which operated prior to the making of the Award were:
a)the Liquor and Accommodation Industry – Hotels, Resorts and Gaming (Managerial Staff) Award 2003 (Cth) (“the 2003 Managerial Award); and
b)the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (Cth).
It is uncontroversial that the award modernisation process occurred following an award modernisation request made pursuant to the then operative section 576C(1) of the Workplace Relations Act 1996 (Cth).
The respondents also referred to section 143(7) of the FW Act which relevantly provides:
(7)A modern award must not be expressed to cover classes of employees:
(a)who, because of the nature or seniority of their role, have traditionally not been covered by awards…;or
(b)who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.
It was submitted for the respondents that having regard to section 143(7)[25] and the history of the Award which did not historically cover managerial employees such as the applicants, the modern award ought not be interpreted in a way which would extend coverage to management employees who historically were not covered by an award.
[25] Also having regard to the award modernisation request which contained a statement with similar effect – see respondents’ outline of submissions filed 24 September 2019 at paragraph 25.
On the question of the historical coverage of managers in hotels and the different treatment of managers in other types of establishments, the respondents referred to the Industrial Relations Commission’s reasoning at the point at which the 2003 Managerial Award was made.[26] That decision related to a review of the Hotel Managerial Staff (Federal) Award 1974 (Cth) as part of the award simplification process then underway. The Motor Inn and Hotel Association of Australia (“MIMA”) sought to intervene in those proceedings.
[26] Review of award pursuant to Item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996, 21 February 2003, AW783478, PR928053 at [8].
In that decision, SDP Lacy relevantly said:
MIMA sought leave to intervene in the proceedings for the purpose of being heard in relation to the definition of hotel in the award. Mr McDonald, appearing on behalf of MIMA, submitted that if the definition of hotel in the 1974 Award was changed then the coverage of the award could possibly extend to members of MIMA. The 1974 Award contains a definition of hotel by reference to the various licenses issued in the State in which the hotel is situated… I refused [MIMA’s application for leave to intervene] on the basis of the undertaken given… on behalf of the CMAA, that the definition of hotel in the new award was not intended to operate differently from the definition in the 1974 Award. It is not intended to cover MIMA members not licensed as a hotel (emphasis added).[27]
[27] Review of award pursuant to Item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996, 21 February 2003, AW783478, PR928053 at [8].
The Commission then made the Liquor and Accommodation Industry – Hotels Resorts and Gaming – (Managerial Staff) – Award 2003 (Cth), one of the pre-reform awards which led to the making of the Award subject to these proceedings. That award contained the following definition:
Hotel means an establishment in respect of which a license has been issued under the law of any State or Territory or the Commonwealth of Australia that enables the licensee to conduct the business of an hotel.[28]
[28] Liquor and Accommodation Industry – Hotels Resorts and Gaming – (Managerial Staff) – Award 2003 (Cth), cl. 8.6.
The Award does not include a similar definition of ‘hotel’ to an establishment which is licenced to operate as a hotel.
The applicants submitted that in not including the same definition of ‘hotel’, an inference should be drawn that the framers of the Award intended to:
expand the definition of the kinds of establishments where management staff would be covered to be much broader and all-encompassing then (sic) previously prescribed.[29]
[29] Applicants’ outline of submissions filed 10 September 2019 at paragraph 43.
Whilst I accept that the framers included a different definition of the term ‘hotel’ in the Award to that in the 2003 Managerial Staff Award, I do not accept that they intended to extend the application of the Award to managers covered by the Award generally. If that was the case, item D.2.9 of schedule D of the Award would not be limited in the way that it is.
It is clear that the Award limits the managerial classification to staff employed in ‘hotels’ as defined. The question here is the extent of that limitation.
The applicants make no reference to the Motels, Accommodation and Resorts Award 1998 (Cth) (“the Motels Award”). Clause 6.1.1 of the Motels Award relevantly provides:
This award relates to the industry of persons employed in any capacity whether permanent or casual in or in connection with motor inns or motels, unlicensed private hotels, serviced apartments, resorts, time share facilities, health or recreation farms, guest houses, ski lodges, holiday flats/units, holiday ranches or farms, condominiums and establishments of a like nature together with restaurants, function areas, convention centres or like facilities, ancillary to or part of any of the above, together with… whether such establishments are licensed to serve alcoholic drinks or not and in or in connection with preparing and serving food, cleaning and attending to the premises and all other services associated therewith (emphasis added).
The Motels Award did not contain a classification for managers. This adds weight to the respondents’ argument that there is no proper basis upon which to draw an inference that the framers intended to expand the employees who would be covered by the management classification.
The respondents’ submissions are consistent with the analysis in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No 2) [2018] FCCA 1935. In that decision, the court rejected the argument that item D.2.9 of schedule D of the Award applied to ‘motels’ for reasons similar to those advanced by the respondents in this case.
In that case, the court said:[30]
[160] … Clause 20.2 deals specifically with managerial staff but is restricted to hotels (not motels).
[161]Item D.2.9 of schedule D of the Modern Award deals with managerial staff at hotels. It provides relevantly that ‘hotels’ means a range of establishments but, significantly, does not include motels (which was the Business here) or motor inns.[31]
[30] Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No 2) [2018] FCCA 1935 at [160] and [161].
[31] See also Johnson v Monti-Haitsma Enterprises Pty Ltd [2014] FCCA 259 at [35] and Johnson v Monti-Haitsma Enterprises Pty Limited (in external administration) [2014] FCA 906.
There is some force to the respondents’ submission in this regard.
Is the first respondent a hotel?
Turning then to the definition of ‘hotel’ for the purposes of item D.2.9 of schedule D of the Award, the applicants argued that the first respondent was a ‘hotel’ as defined, having regard to:
a)the ordinary meaning of the term ‘hotel’;
b)the first respondent’s name which includes the word ‘hotel’;
c)the fact that the first respondent referred to itself as a ‘hotel’ in its own publicity material and internal documents; and
d)registration by the first respondent of Punthill Burwood as a ‘motel/hotel’ under the Public Health and Wellbeing Act2008 (Vic) and associated regulations.[32]
[32] See applicants’ outline of submissions filed 10 September 2019.
Ordinary meaning
It was submitted on behalf of the applicants that when one considers the facilities available at the first respondent’s sites, particularly at Punthill Burwood, they are indistinguishable from hotels. Therefore, for the purposes of the Award, the court ought to conclude that Punthill Burwood was a hotel.
Mr Caras’ evidence was that the first respondent’s business was established in 1987.[33] As at February 2018:
a)there were 13 sites; one in Queensland and the balance in Victoria;[34]
b)the sites comprised a mix of about 777 fully-furnished apartments;[35] and
c)Punthill Burwood consisted of 37 apartments some of which were owned by it and others leased.[36]
[33] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 8.
[34] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 9.
[35] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 10.
[36] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraphs 10(e) and 13(b).
The first respondent’s business was operated through a mix of apartments which were owned by the first respondent and others which were leased.[37]
[37] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 12.
Mr Caras gave further evidence that the first respondent operated a traveller accommodation establishment offering self-contained lodging typically including a kitchen, laundry facilities, lounge and dining facilities within the apartment. His evidence, which I accept, was that by comparison to the offerings by the first respondent, hotels generally do not provide self-use kitchens and laundry facilities and may only provide lounges and dining facilities outside the guest’s private accommodation.[38] Moreover, Mr Caras noted there were no mini bars in any of the first respondent’s apartments.[39]
[38] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 16.
[39] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 25.
Mr Caras’ evidence was that the apartments offered by the first respondent were a mix of one, two or three bedroom apartments, the majority being one bedroom apartments.[40] Each apartment generally had a separate living room area containing a kitchen as part of an open plan design, and the living area generally contained a desk area and a dining table and chairs as well as a couch and television.[41]
[40] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 17.
[41] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 21.
The kitchen area generally included a bench for food preparation, a microwave, a full size oven/stove with four hotplates, a fridge and cutlery, crockery, cookware, dishwasher and a full size refrigerator.[42] The apartments also had a full size front loader washing machine.
[42] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 21.
Mr Caras conceded that depending on the property in question, the following additional facilities might also be available:[43]
a)a gymnasium;
b)conference facilities;
c)a pool;
d)a barbeque;
e)breakfast room; and
f)wifi.
[43] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 22.
Mr Caras gave the following evidence about the industry in which the first respondent operates:
Based on my observations and experience, there are different segments of the accommodation market. One segment was what I called ‘self-contained apartments’, ‘serviced apartments’ or ‘apartment hotels’, which I consider were generally interchangeable terms. In my view, serviced apartments were distinct to a typical ‘hotel’, due namely to the spacious nature of the rooms, amenities and facilities provided.[44]
[44] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at paragraph 4.
The applicants submitted that the term ‘hotel’ is an ordinary and well-understood word meaning ‘a building in which accommodation and food, and sometimes other facilities, are available’,[45] as defined in the Macquarie Dictionary. Moreover, it was submitted that the business conducted by the first respondent, including that part conducted at Punthill Burwood, fell within that ordinary and usual definition.
[45] Exhibit D.
The applicants further submitted that the reference to the first respondent as an ‘apartment hotel’ would still bring it within the ordinary meaning of the term ‘hotel’ as set out above. The applicants relied upon the dictionary definition of the term ‘apartment hotel’, namely:
a hotel that rents furnished apartments or suites suitable for housekeeping, on a weekly or more permanent basis, and usually supplies all hotel services (emphasis added).[46]
[46] Exhibit A; exhibit B.
In other words, it was submitted that an ‘apartment hotel’ is a type of ‘hotel’.
Conversely, the respondents submitted that the applicants’ reliance upon dictionary definitions was misguided. An award must be interpreted in context. It is not simply a matter of applying dictionary definitions to particular terms.
It was further submitted that the error of the applicants’ approach is evident when one considers that the dictionary definition of ‘motel’ would appear to be captured as a ‘hotel’ given that the Macquarie dictionary definition of ‘motel’ is:
a roadside hotel which provides accommodation for travellers in self-contained, serviced units, with parking for their vehicles (emphasis added).[47]
[47] Exhibit W.
This would mean that item D.2.9 of schedule D of the Award would equally apply to motels. However, this is not the case, as the reasoning in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No 2) [2018] FCCA 1935 at [61] makes it clear that the Award does not apply to a motel.
I am not satisfied that the dictionary definitions of an ‘apartment hotel’ assist in determining the meaning of a ‘hotel’ for the purpose of the Award’s coverage and in particular, the application of item D.2.9 of schedule D of the Award. I am also not satisfied that the dictionary definition of the term ‘hotel’ assists greatly in determining whether or not managers employed by the first respondent are covered by item D.2.9 of schedule D of the Award.
The Award itself distinguishes between ‘serviced apartments’ and other accommodation providers on the one hand and ‘hotels’ on the other. If ‘serviced apartments’ were simply a subset of a ‘hotel’, it would not have been necessary to expressly include ‘serviced apartments’ in the definition of ‘hospitality industry’, as ‘serviced apartments’ would be covered by virtue of being a ‘hotel’.
The questions which then arise are:
a)what was the nature of the business operated by the first respondent?; and
b)in particular, was it a serviced apartment or apartment hotel on the one hand, or a hotel on the other?
The evidence shows that the first respondent provided accommodation for a fee. At that level of extraction, it was similar to a ‘hotel’ and indeed to a ‘motel’, ‘a caravan park’ and many other forms of accommodation providers.
However, for the reasons which follow, it is the self-contained nature of the respondent’s facilities that, in my view, sets the accommodation provided by the first respondent apart from hotel accommodation.
Publications produced by or on behalf of the first respondent
The applicants submitted that in determining whether the first respondent was a hotel, the court ought to have regard to how it has described itself in its own publications and also how one of its founders, Mr Arno Caras, was reported to have described the first respondent’s business.
For example, the applicants sought to rely upon a document produced by or for the first respondent in or about 2012, which referred to the first respondent’s business using the term ‘hotel’.[48] This included an image of a Punthill apartment hotel with a large sign on its wall stating ‘Hotel Open’.[49]
[48] Exhibit C.
[49] Exhibit C page 1.
The applicants also relied upon the following statements made by Mr Arno Caras in a focus media group publication:
… the Punthill Group provides guests travelling… with custom-designed apartment hotels – all the trappings of a hotel but much more space that the average hotel room and usually at a lower cost. “We are in the hotel industry and we do the same thing as the hotels do,” says Arno Caras…[50]
[50] Exhibit C pages 2 to 3.
…
The Brisbane property was previously a hotel many years ago, and was later converted to furnished apartments before it was purchased by Punthill. “So now we are converting it back to the hotel it was originally,” comments Arnos Caras who says the company will begin taking reservations for the Brisbane property in September.’ (emphasis added)[51]
[51] Exhibit C page 9.
The applicants also referred to and relied upon a capability statement produced by the first respondent in which various features offered at the first respondent’s sites were outlined.[52] It was submitted that these were features one would find at a hotel.
[52] Exhibit T page 6.
Further, the applicants referred to the first respondent’s ‘Manager’s Handbook’ which contained the following statement:
… if you were staying at a hotel, how would you expect to be treated and how would you like the staff to be groomed? (emphasis added)[53]
[53] Exhibit S.
On the basis of this evidence, it is clear that from time to time, the first respondent did refer to itself as a ‘hotel’ in its own material.
However, in determining whether the first respondent was a ‘hotel’ for the purposes of the Award, the court needs to consider what the first respondent actually did, rather than any label applied to its activities in any particular publication, including its own publications.
In this regard, the first respondent submitted that the nature of its activities were best determined by reference to the market in which it operates. To this end, it sought to tender evidence as to the nature of the businesses with whom it competes.
Evidence was given by Mr Caras that when the first respondent sets its prices, it has regard to businesses who provide similar products to those provided by the first respondent, namely rooms with fully equipped kitchens and the like. Mr Caras stated that one of the first respondent’s major competitors was Quest Apartment Hotels and put before the court evidence of the types of facilities offered by Quest.[54]
[54] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at paragraphs 5 to 8.
Again, this material is of limited assistance to the court.
Ultimately, the questions before this court are:
a)what business does the first respondent carry out?; and
b)does that properly fall within the term ‘hotel’ for the purposes of item D.2.9 of schedule D of the Award?
What services and facilities the first respondent’s competitors might provide is of less relevance to this determination. It may be said, for example, that the first respondent competes with hotels, serviced apartments and other accommodation providers. Ultimately however, the market in which the first respondent operates does not determine which award covers its staff. This is particularly so in the context of an award which expressly applies to the hospitality industry, but then within its own terms differentiates between different types of hospitality providers to determine whether or not it applies to particular classifications of employees, such as managers.
I have referred above to Mr Caras’ evidence regarding the nature of the apartments and facilities offered by the first respondent. In particular, I have noted the apartments were fully furnished and equipped with kitchens and other facilities such as laundry and ironing facilities.
Annexed to Mr Caras’ affidavit was marketing material prepared for the first respondent which contained various references to the term ‘serviced apartments’ in relation to Punthill Burwood.[55]
[55] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at annexure AC-44.
In that document, the following comments were made:
All apartments are fully furnished and include all the amenities you would require to make your long-term stay as comfortable as possible.
Your home away from home – you will enjoy the privacy, comfort and convenience of having your own apartment.
All long-term stay apartments are fully furnished and larger than a hotel room. You can unwind after work in your spacious apartment, prepare yourself a home cooked meal or catch up on work in a relaxing environment.[56]
[56] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at annexure AC-44.
Also annexed to Mr Caras’ affidavit was advertising material produced by what he described as a competitor, Quest.[57] Leaving aside the question of which businesses the first respondent competed with, Mr Caras’ evidence, which I accept, was that the statements made in the Quest marketing material reflected the difference between serviced apartments and hotels. He further stated that those statements reflected the self-contained apartment hotel market as a matter of commercial reality. It is only in this context and for this purpose that I have considered this material.
[57] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at annexure AC-45.
Relevantly, in that document the following statements were made:
A Quest apartment hotel is your home or office away from home, complete with separate living, dining and sleeping areas, separate work stations and fully equipped kitchens and laundry facilities.
These features, unique to apartment hotels, allow you to cook your own meals, do you own laundry, and relax with plenty of space. (emphasis added)[58]
[58] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at annexure AC-45.
Similarly, Mr Caras also annexed a document to his affidavit from Amity Apartments.[59] In that document, the following comments were made:
Our… serviced apartments… have been fully furnished to the highest standards, and offer superior comfort and space for the price of a hotel room, in fact, many of our regular guests tell us that it’s the convenience of having a fully equipped kitchen, living, bathroom and laundry facilities at their fingertips that keeps then (sic) coming back.[60]
[59] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at annexure AC-46.
[60] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at annexure AC-46.
Also annexed to Mr Caras’ affidavit was an extract from a website for District Apartment Hotels which contained the following statement:
Featuring contemporary self-contained apartments with free high-speed Internet access and flat-screen TVs. All tastefully furnished with wood floors, washer/dryers, and stylish living rooms incorporating dining tables adjacent to the well equipt (sic) kitchens and all offer balconies.[61]
[61] Affidavit of Alan Rory Caras affirmed and filed 9 October 2019 at annexure AC-46.
After reviewing the above, I find the reference to the first respondent as a ‘hotel’ in some of its own publications and statements attributed to its founder is of limited weight in determining whether its managers are covered by item D.2.9 of schedule D of the Award.
Rather, I find that each of these establishments, which all refer to themselves as ‘serviced apartments’ or ‘apartment hotels’, market themselves as offering features which distinguish them from ‘hotel’ rooms, principally in the self-contained nature of the accommodation. That is, they offer fully equipped kitchens, dining facilities and in room laundry facilities.
The applicants have not led any evidence to suggest that ‘hotels’ offer similar facilities or that these are not features which distinguish ‘serviced apartments’ or ‘apartment hotels’ from ‘hotels’.
Registration under Victorian legislation
The applicants submitted that in considering the nature of the business conducted by the respondent, it ought have regard to the fact that Punthill Burwood was registered to conduct a business of a hotel by the City of Whitehorse under the Public Health and Wellbeing Act 2008 (Vic) and the Public Health and Wellbeing Regulations 2009 (Vic). It was submitted that this was further evidence that the first respondent was a hotel within the ordinary meaning of that term.
An application to renew the registration of prescribed premises was marked as Exhibit N. Relevantly, it is an application to register the Punthill Burwood premises ‘under the provisions of the Public Health and Wellbeing Act 2008.’[62]Under the heading ‘business details’, the ‘premises type’ is noted as ‘Motel/Hotel’.[63]
[62] Exhibit N.
[63] Exhibit N.
Exhibit N contains a series of documents relating to the repeated registration of Punthill Burwood under section 74 of the Public Health and Wellbeing Act 2008 (Vic). No evidence was led by the first respondent as to the circumstances of that registration. It was argued by the applicants that this was further acknowledgement by the first respondent that it considered itself to be a hotel.
I am not persuaded by that submission.
The objective of the Public Health and Wellbeing Act 2008 (Vic) is:
(a)protecting public health and preventing disease, illness, injury, disability or premature death;
(b) promoting conditions in which persons can be healthy;
(c)reduce inequalities in the state of public health and wellbeing.[64]
[64] Public Health and Wellbeing Act 2008 (Vic), s. 4.
To that end, the Public Health and Wellbeing Act 2008 (Vic) provides for the registration of prescribed accommodation. Section 67 provides that:
The proprietor of prescribed accommodation must, in accordance with Division 4, register, on a periodic basis, that accommodation with the Council in whose municipal district the prescribed accommodation is located.
A failure to comply with section 67 could lead to the imposition of a penalty.
‘Prescribed accommodation’ is defined in section 3 to mean:
… any of the following which is prescribed, or is of a class which is prescribed, to be prescribed accommodation –
(a)…
(b)any premises used as a place of abode, whether temporary or permanent, fixed or mobile, where a person or persons can be accommodated on payment of consideration;
(c)…
‘Prescribed’ is further defined to mean ‘prescribed by the regulations’.[66]
[66] Public Health and Wellbeing Act 2008 (Vic), s. 3.
Section 68 of the Public Health and Wellbeing Act 2008 (Vic) relevantly provides:
This Division applies in respect of a person conducting a –
…
(f)business that poses a risk to public health and is a business of a class of business prescribed for the purposes of this section.
Regulation 13 of the Public Health and Wellbeing Regulations 2009 (Vic) provides:
The following classes of accommodation are prescribed to be prescribed accommodation for the purposes of section 3 of the Act–
(a)residential accommodation;
(b)hotels and motels;
(c)hostels;
(d)student dormitories;
(e)holiday camps;
(f)rooming houses.
A ‘hotel’ is defined in the Public Health and Wellbeing Regulations 2009 (Vic) to include:
a residential hotel and any residential premises in respect of which a general licence or on-premises licence is granted under the Liquor Control Reform Act 1998;[67]
[67] Public Health and Wellbeing Regulations 2009 (Vic) reg. 4.
It was submitted by the applicants that the term ‘residential hotel’ comes from the Whitehorse Planning Scheme which defines a ‘residential hotel’ as:
Land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines, and gambling.[68]
[68] Whitehorse Planning Scheme, cl 73.03.
The applicants submitted that:
This repeated registration as a ‘hotel’ by a sophisticated company without any objection or divergence means the Court can comfortably determine that Punthill Apartment Hotels properly determined themselves to be operating a ‘hotel’. This is particularly the case where there is an unexplained failure by Punthill Apartment Hotels to call witnesses or to tender documents or other evidence which is contradictory or seeks to explain such repeated registration as some sort of mistake and, therefore, also permit the drawing of a Jones v Dunkel inference.[69]
[69] Applicants’ outline of closing submissions at paragraph 56.
In addition to the purposes of the Public Health and Wellbeing Act 2008 (Vic) set out above, Division 2 of Part 5 of the Public Health and Wellbeing Regulations 2009 (Vic) sets out the standards and requirements for prescribed accommodation. In particular, they impose limitations on overcrowding, maintenance, cleanliness, the provision of drinking water, sewerage and waste and refuse facilities and the like.
When viewed in their entirety, the Public Health and Wellbeing Act 2008 (Vic) and the Public Health and Wellbeing Regulations 2009 (Vic) set up a system of registration of certain types of business, the imposition of certain obligations on those businesses and in turn, the exposure to penalties for those businesses if they fail to comply with those obligations. It does not establish a licensing regime per se for hotels or motels.
Whilst I accept the evidence shows that the first respondent was registered as a ‘motel/hotel’ pursuant to the Public Health and Wellbeing Act 2008 (Vic) and the Public Health and Wellbeing Regulations 2009 (Vic) (and therefore can conclude that it fell within the definition of either a motel or a residential hotel for the purposes of that legislative scheme), that is not determinative of the issue before this court, namely whether it is in fact a ‘hotel’ for the purposes of the application of item D.2.9 of schedule D of the Award.
On balance, the first respondent’s registration under the Victorian public health and wellbeing scheme is of little, if any, weight in determining the award coverage issue before me. This is particularly so when one considers that the term ‘hotel/motel’ is used as a single category of accommodation type which must be registered under the public health and wellbeing scheme, whereas there is a distinction between hotels and motels under the Award in so far as the application of item D.2.9 of schedule D of the Award.
Findings
The first respondent does have the word ‘hotels’ in its name. However, it also has the word ‘apartment’ in its name. Thus, the first respondent’s name alone is not determinative of this issue.
Having regard to the totality of the evidence, when one considers the services offered by the first respondent, I find on the balance of probabilities that it is more accurate to characterise the first respondent as an entity which offers serviced apartments to customers for a fee. It offers patrons self-contained, fully furnished and fully serviced accommodation.
The fact that it also offers other services which one might find in a hotel does not detract from the fundamental nature of its business, namely the provision of serviced apartments for hire. So much is clear from the first respondent’s own advertising material. The use of the term ‘hotel’ does not sway me from this conclusion.
I therefore find that the respondent is not a ‘hotel’ for the purposes of item D.2.9.
Retail licenced establishment
The applicants argued in the alternative that if the court does not accept that the first respondent was a ‘hotel’ for the purposes of item D.2.9 of schedule D of the Award, it should find that it was a:
retail licensed establishment in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith[70]
for the purposes of the definition of ‘hotels’ in the managerial classification for the purposes of item D.2.9 of schedule D of the Award.
[70] Hospitality Industry (General) Award 2010 (Cth), sch D item D.2.9.
It was common ground that the first respondent was licenced to and did supply alcohol to guests during conferences and meetings at its various sites including Punthill Burwood.
The question here was whether it could properly be said that the provision of alcohol in this way brings the first respondent within the meaning of the term of a ‘retail licensed establishment’.
Ms Borrack gave evidence for the applicants in this matter. She was employed by the first respondent from 2001 to 2002 at the first respondent’s head office which was then in Flinders Lane, Melbourne. She then left to commence working for another accommodation provider.[71]
[71] Affidavit of Michele Borrack affirmed 19 August 2019 and filed 20 August 2019 at paragraphs 1 and 2.
Ms Borrack returned to work for the first respondent in March 2009 as a sales supervisor. She remained in this position until July 2018 when her position was made redundant. In this role, Ms Borrack assisted with conference and function bookings.[72] From in or about September 2009, Ms Borrack’s role changed to focus solely on conferencing and functions. Her role from that point included promoting and selling the first respondent’s conferencing and function spaces, preparing quotes, finalising conference and functions bookings and liaising with customers, resident managers and suppliers and then following up after the conferences and functions.[73]
[72] Affidavit of Michele Borrack affirmed 19 August 2019 and filed 20 August 2019 at paragraphs 3 and 6.
[73] Affidavit of Michele Borrack affirmed 19 August 2019 and filed 20 August 2019 at paragraph 5.
Ms Borrack’s evidence was that alcohol was sold at conferences and functions and in addition, complementary wine was sometimes provided to guests on arrival.[74] In relation to conferences and functions, Ms Borrack gave evidence that food and beverage packages offered included alcoholic beverages but most of the alcohol was sold on an ‘on-consumption’ basis. When purchased as part of a beverage package, the alcohol was priced on a ‘per head’ basis, whereas when purchased on-consumption, the alcohol was priced on a per glass basis for wine and per bottle basis for beer.[75]
[74] Affidavit of Michele Borrack affirmed 19 August 2019 and filed 20 August 2019 at paragraph 8.
[75] Affidavit of Michele Borrack affirmed 19 August 2019 and filed 20 August 2019 at paragraphs 8 to 11.
Any alcohol purchased in this way was either paid for at the conclusion of the conference or function by the person who organised the conference paying the resident manager or alternatively, the customer’s account was adjusted to include the cost of the alcohol and paid by credit card.[76]
[76] Affidavit of Michele Borrack affirmed 19 August 2019 and filed 20 August 2019 at paragraphs 16 and 17.
It was submitted by the applicants that liquor licences are divided into two categories; namely, retail and pre-retail.[77] Relevantly, it was submitted that as the first respondent was clearly not the holder of a pre-retail licence, it then follows that the alcohol licence the first respondent held must be found to be a retail licence.
[77] Applicants’ outline of closing submissions at paragraph 62.
The applicants relied on the definition of ‘retail’ as contained in the Macquarie Dictionary namely ‘the sale of commodities to household or ultimate consumers, usually in small quantities…’.[78]
[78] Exhibit D.
The applicants also relied upon the comments of Nathan J in Wellington v Norwich Union Life Insurance Society Ltd [1991] VicRp 27; [1991] 1 VR 333 (“Wellington”) in respect of the meaning of ‘retail’ within the context of the Retail Tenancies Act 1986 (Vic). In that case, his Honour said:
The essential feature of retailing, is to my mind, the provision of an item or service to the ultimate consumer for fee or reward. The end user may be a member of the public, but not necessarily so. In support of this conclusion, I call in aid not only common sense but the Macquarie Australian Dictionary which defines retail as being a sale to an ultimate consumer, usually in small quantities.[79]
[79] Wellington v Norwich Union Life Insurance Society Ltd [1991] VicRp 27; [1991] 1 VR 333 at page 336.
The Liquor Control Reform Act 1998 (Vic) provides for various categories of licences and permits that can be issued under that Act, namely:[80]
[80] Liquor Control Reform Act 1998 (Vic), s. 7.
a)general licence;
b)on-premises licence;
c)restaurant and café licence;
d)club licence;
e)packaged liquor licence;
f)late night licence;
g)pre-retail licence;
h)producer’s licence;
i)limited licence;
j)major event licence; and
k)BYO permit.
Section 12(1) of the Liquor Control Reform Act 1998 (Vic) further provides:
A pre-retail licence authorises the licensee to supply liquor at any time and on any premises –
(a) to a person who holds a licence under this Act; and
(b)to a person licenced to sell or supply liquor by or under a law of another State or Territory if the liquor supplied is to be consumed outside Victoria; and
(c)to a person for the purpose of exporting the liquor supplied out of Australia.
Section 14 of the Liquor Control Reform Act 1998 (Vic) also provides:
(1)A limited licence may be a temporary limited licence or a renewable limited licence.
…
(2)A limited licence is subject to –
(a)if the licensee is a body corporate the conditions set out in section 18 (approval of directors); and
(b)any other conditions determined by the Commission and specified in the licence.
It was not disputed that the first respondent held a limited liquor licence which enabled alcohol to be served at functions at those properties, including Punthill Burwood, which offered the ability to host conferences and other functions in their function rooms.[81]
[81] Affidavit of Alan Rory Cara affirmed and filed 30 July 2019 at paragraph 26; see annexure AC-1 for copies the liquor licences for the period from 2012 to 2018.
The first respondent’s limited liquor licence specified that the licence is:
a renewable limited licence and authorises the licensee to supply liquor in the course of catering for social receptions or social functions on premises other than the licensed premises for consumption on those premises during the trading hours specified below. [82]
[82] Affidavit of Alan Rory Cara affirmed and filed 30 July 2019 at annexure AC-1.
The said licence further provides that the licensee is authorised ‘to supply liquor during a pre-booked function at facilities situation at Punt Hill Apartments sites only.’[83]
[83] Affidavit of Alan Rory Cara affirmed and filed 30 July 2019 at annexure AC-1.
The liquor licence from 2016 onwards also contains the following statement:
This licence does not allow the supply or consumption of liquor at public events which are attended by the general public.
Any premises where the supply and/or consumption of liquor occurs under this licence is considered to be a licensed premises for the purposes of the Liquor Control Reform Act 1998.[84]
[84] Affidavit of Alan Rory Cara affirmed and filed 30 July 2019 at annexure AC-1.
It was common ground that guests and delegates at conferences and functions were not able to individually purchase alcohol from the first respondent.
It was also common ground that the first respondent did not have a licence to sell alcohol to the general public. In addition, Mr Caras’ evidence, which to some degree was supported by the evidence given by Ms Borrack, was that income derived from conferences and in turn income derived from alcohol served at such conferences, was a very small part of the first respondent’s revenue. I accept this evidence.
Although made in relation to a different legislative scheme, I accept that the comments made by Nathan J in Wellington are apposite insofar as it assists to determine what ‘retail’ means. Ultimately, it is the sale to the end consumer of products (in this case, alcohol) for a fee or reward.
The applicants submitted that:
… ‘other retail licenced establishments…’ are not coloured by a qualifier requiring retail to the ‘general public’ like ‘wine and spirit merchants’…
The underlying nature of the retail or pre-retail transaction facilitated by a liquor licence (including a limited licence or a general licence) is regulated but not altered by any conditions attaching to it. To suggest it is, and that the manner in which the sale of liquor is processed under that licence creates some type of transaction other than a retail or pre-retail transaction, is misconceived and relies upon a narrow or pedantic approach to interpretation of infelicitous expressions which does not avoid inconvenience or injustice and is divorced from industry realities. The fact that the transaction involves a licensee either selling liquor for consumption at its establishments or for resale remains unchanged.[85]
[85] Applicants’ outline of closing submissions at paragraph 66.
The respondents submitted that the limited licence the first respondent held for the provision of alcohol at conferences and functions was not a retail licence because it did not sell the alcohol to the end consumer. It was argued that there was a distinction between the persons who organised the event and those who were charged for any alcohol consumed at conferences or functions and the participants at those conferences or functions. There is some merit to this argument.
In this case, the evidence of Ms Borrack was that the organiser of the conference or function was charged for any alcohol consumed at the conference or function.[86]
[86] Affidavit of Michele Borrack affirmed 19 August 2019 and filed 20 August 2019 at paragraph 16.
It was argued for the applicants that the fact that one person paid for all the alcohol consumed was no different to a person attending a hotel with a group of friends and paying for a round of drinks for their friends. That did not change the retail nature of the transaction, namely the sale by the hotel of drinks to the end consumers.
I do not accept that this analogy holds true.
In the case of one person paying for drinks consumed by others, the individuals who consumed the drinks themselves incurred a liability to pay for any drinks consumed. The fact that another person takes on that liability does not change the fact that there was a sale to the end consumer by the licence holder; a retail transaction.
In the case of the first respondent providing alcohol as part of a function or event, the participants of any conference or function incurred no liability themselves for any alcohol served. The organiser was the one liable to pay for any alcohol consumed. Consequently, there was no sale of alcohol to the end consumer for a fee or reward. The transaction was between the first respondent and the organiser of the function or event.
The applicants also argued that ‘retail’ did not necessarily involve sales to members of the public, as retail can include sale of products or services to other businesses. This may be so, but a common feature of ‘retail’ is that it is the sale of a product or service to the end user. Where a business is the end user of the product or service that could still be a retail sale. However, in this case, the end user of the alcohol supplied as part of a function hosted at Punthill Burwood was the individuals who consumed it, not the organiser of the function at which it was supplied.
For these reasons, I find that the first respondent was not a retail licenced establishment in or in connection with accommodation for the purposes of item D.2.9 of schedule D of the Award.
Therefore, I find that item D.2.9 of schedule D of the Award does not apply to the first respondent in respect of the applicants’ employment.
Having come to this conclusion, it is not necessary for me to deal with the decision in Davies v Punthill Apartment Hotels Pty Ltd [2014] FCCA 1158 and the submissions made by the parties about the extent to which the reasoning in that case ought to be adopted or applied in this matter.
Moreover, as I have concluded that item D.2.9 of schedule D of the Award does not apply to the first respondent in respect of the applicants’ employment, it follows that there is no contravention by the first respondent of that provision of the Award.
Front office grade 3 classification
As stated, the applicants argued that if the court does not accept that the first respondent is subject to item D.2.9 of schedule D of the Award, the proper classification for their employment is that of a front office grade 3 employee and they ought to have been, but were not, paid in accordance with that classification.[87]
[87] Applicants’ outline of closing submissions at paragraph 80.
Front office grade 3 is a classification found in item D.2.3 of schedule D of the Award which is the guest services stream. The Award relevantly provides:
Front office grade 3 means an employee who has the appropriate level of training and is in the front office engaged in duties including assisting in training and supervision of front office employees of a lower grade.[88]
[88] Hospitality Industry (General) Award 2010 (Cth), sch D item D.2.3.
The Award also provides for the following further classifications:
Front office grade 1 means an employee who is engaged as an assistant in front office duties including night auditing, telephonist, receptionist, cashier, information services or reservations.
Front office grade 2 means an employee who has the appropriate level of training and is in the front office engaged in duties including telephonist, receptionist, cashier, information services or reservations.[89]
[89] Hospitality Industry (General) Award 2010 (Cth), sch D item D.2.3.
It was submitted that the applicants spent:
a considerable amount of time in the front office of Punthill Burwood engaged in duties including assisting in training and supervision of front office employees of a lower grade. Those other employees were the dedicated receptionists telephonist and receptionist duties at the various hotels and other staff who were performing such duties from time to time.[90]
[90] Applicants’ outline of closing submissions at paragraph 80.
The applicants gave the following evidence in relation to their role:
a)they were employed as ‘relief managers’ and then ‘resident managers’;[91]
b)among their duties, the applicants were required to:
i)supervise, monitor and train housekeeping staff; and
ii)supervise and direct the maintenance manager with renovations and complex maintenance issues;
c)Punthill Burwood had a foyer/lobby with a reception desk with a computer, phone and printer, next to which is a small private office which the applicants used;
d)when they took on the role of resident manager, they also took on responsibility for managing weekly housekeeping rosters and conducting regular meetings with housekeeping staff, amongst other things;
e)they shared duties of the role including ensuring that the reception was staffed by one of them between the hours of 7:00am to 8:00pm each day; and
f)they supervised the cook who was employed to assist with the preparation of breakfasts.[92]
[91] The first applicant had initially been employed in an administrative role prior to taking on the relief manager role in May 2011.
[92] Affidavit of Lilli Kramer sworn 14 June 2019 and filed 17 June 2019; affidavit of Muthumuni Chalitha De Silva sworn 14 June 2019 and filed 17 June 2019.
Mr Caras gave evidence that the applicants were responsible for coordinating, rostering and training housekeeping staff. He also gave evidence that the housekeeper could relieve the applicants from time to time if required.
Even accepting this, I do not accept that covering for an absence of a short duration by the applicants from Punthill Burwood on an ad hoc basis would bring the housekeepers within the definition of a front office grade 1 or grade 2 employee.
Moreover, the applicants themselves led no evidence that they supervised or trained any ‘front office employees of a lower grade’. Indeed, their evidence was that they shared the duties required to cover the reception between them and there were no other employees employed in ‘telephonist, receptionist, cashier, information services or reservations’[93] duties whom they could supervise.
[93] Hospitality Industry (General) Award 2010 (Cth), sch D item D.2.3.
It was submitted by the applicants that the definition of a front office grade 3 employee was not an exhaustive definition of their duties. That is true. However, it is an inclusive definition and therefore, when that classification is viewed in context of the various front office classifications, it is apparent that the grade 3 classification must include the training and supervision of front office employees of a lower grade. As an inclusive definition, the front office grade 3 classification descriptor allows for a wide variety of duties to have been undertaken by the staff member in that role; however, one such duty is the training and supervision of lower grade front office employees. That is clear from the words of that classification descriptor.
I therefore find that there is no proper basis upon which the court could find that the applicants were employed in the front office grade 3 classification. This part of the applicants’ claim has not been made out.
Record keeping claim
Section 535(1) of the FW Act relevantly provides:
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.
The Regulations specify the type of employee records which an employer is required to keep, including pay records,[94] overtime records,[95] leave records[96] and superannuation records.[97]
[94] Fair Work Regulations 2009 (Cth), reg 3.33.
[95] Fair Work Regulations 2009 (Cth), reg 3.34.
[96] Fair Work Regulations 2009 (Cth), reg 3.36.
[97] Fair Work Regulations 2009 (Cth), reg 3.37.
Section 535(3) of the FW Act further provides that the Regulations may provide for the inspection of the employee records. Relevantly, regulation 3.42 states:
(1) For subsection 535(3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.
(2)The employer must make the copy available in a legible form to the employee or former employee for inspection and copying.
(3)If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must:
(a)make the copy available at the premises within 3 business days after receiving the request; or
(b)post a copy of the employee record to the employee or former employee within 14 days after receiving the request.
(4)If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request:
(a)make the copy available at the premises; or
(b)post a copy of the employee record to the employee or former employee. [98]
[98] These are all civil remedy provisions to which Part 4-1 of the Act applies.
Regulation 3.43 also states:
An employer who has been asked by an employee or former employee to make a copy of an employee record available for inspection must tell the employee or former employee, on request, where employee records relating to the employee or former employee are kept.[99]
[99] This is a civil remedy provisions to which Part 4-1 of the Act applies.
The applicants argued that once a request is made by an employee, the employer is required to provide the employee records requested within the specified timeframes. The provisions are strict liability ones.
It was conceded that the applicants’ solicitors requested the applicants’ contracts of employment, payslips and other employee records by letter dated 29 March 2017.[100] The second respondent responded by email on 30 March 2017 which, among other things, noted that:
a)the applicants already had copies of their employment contracts; and
b)the first respondent had already provided to the applicants a copy of pay slips and annual payment summaries.[101]
[100] Exhibit P.
[101] Exhibit V.
Further, by letter dated 4 April 2017, the applicants’ legal representative wrote to the respondents again reiterating the request for copies of the applicants’ employment contracts. In addition, the letter stated:[102]
Our clients acknowledge receipt of some pay slips made available by Punthill on 3 February 2017. However, we are instructed that the pay slips provided did not include the following:
[102] Exhibit P.
Year
Lilli Kramer Missing Pay Slips
Chali De Silva Missing Pay Slips
2011
28 September – 11 October
21 December – 3 January 2012
11 May – 24 May
25 May – 7 June
31 August – 13 September
28 September – 11 October
23 November – 6 December
21 December – 3 January 2012
2012
4 January – 17 January
18 January – 31 January
6 June – 19 June
6 June – 19 June
2013
10 April – 31 December
10 April – 31 December
2014
N/A
N/A
2015
N/A
N/A
2016
21 September – 4 October
21 September – 4 October
By further email dated 6 April 2017, the second respondent provided the applicants’ representative with a copy of the applicant’s unsigned contract of employment dated 7 December 2012 and said it ‘is all we have on record and is inexplicably, unsigned.’[103] The second respondent also provided some additional payslips as requested and went on to say:
[103] Exhibit V.
Regarding 2011 & 2012 payroll records – during this period Punthill used a third party service… for payroll processing. Punthill stopped using ADP Employer Services in November 2012. Punthill does not have access to digital records for the financial years 2011 to 30/11/2012. We understand that ADP Employer Services does not hold these digital records and would not be able to furnish same. We are accordingly unable to provide records in a digital format. Punthill does retain hardcopy payroll reports for this period; however these have been archived and are in storage. They can be accessed by this would take some time and cannot be done immediately.
…
Regarding the hardcopy payroll reports referred to above, we propose that we schedule a meeting in the interim and we will use our best endeavours to access these records prior to the meeting.[104]
[104] Exhibit V.
The issues for consideration in dealing with this aspect of the applicants’ claim include:
a)are employment contracts employee records such that a request for them triggers the obligation to provide them within timeframes specified in the regulations?
b)to the extent that the 29 March 2017 letter from their solicitor included a request for their respective employee records, was this general request abandoned by the letter dated 14 April 2017?; and
c)if so, did the continued request in the letter dated 14 April 2017 for outstanding pay slips amount to a request for employee records?
Contract of employment
The obligation under section 535 of the FW Act is for an employer to make and keep for 7 years ‘employee records of the kind prescribed by the regulations’. Regulation 3.31of the Regulations relevantly provides that:
… an employee record made and kept by an employer for this Subdivision must be of the following kind:
(a) a record in a legible form and in the English language;
(b) a record in a form that is readily accessible to an inspector.
Regulations 3.32 to 3.40 then deal with the content of an employee record.
Whilst it is possible that an employee’s employment contract may form part of an employee’s employment record, there is no requirement that the employee records required to be made and kept pursuant to section 535 be kept in such a contract. Indeed, in some cases, as submitted by the respondents, the employment contract may be partly or wholly oral. There is no breach in the obligations under section 535, provided that the employer make and keep an employment record which deals with the information required in the Regulations.
The applicants seemed to appreciate the distinction between the employment contract itself and the information which an employer is required to make and keep. In the letter of 4 April 2017, the applicants solicitor said:
As you are no doubt aware, our client’s (sic) individual employment contracts with Punthill contain information of the nature required to be kept by an employer and made available to an employee under the provisions of the Fair Work Act 2009 (Cth) and associated regulations.[105]
[105] Exhibit P.
Regulation 3.40 deals with the types of employee records that an employer must make and keep which relates to the termination of an employee’s employment. There is no requirement that the employee records are contained in an employment contract per se; rather, the obligation is to keep a record of the prescribed information.
I therefore find that the failure by the first respondent to keep the applicants’ employment contracts is not in itself a breach of the requirements of section 535 or the Regulations, provided they have made and retained records of that information elsewhere.
Was the request for the applicants’ employee records abandoned?
It was conceded that by letter dated 29 March 2017, the applicants’ solicitor requested, among other things, ‘each of (the applicants’) employee records with Punthill.’[106] That is a request for employee records pursuant to regulation 3.42.
[106] Exhibit P.
It was submitted by the respondents that, when viewed in context, it is apparent from the chain of correspondence between the applicants’ solicitor and the respondents that the applicants abandoned their initial request for ‘employee records’ generally and simply pursued a request for ‘pay slips’ being those payslips which had not been provided to date.
Having regard to the communication in its entirety, I accept this submission.
By letter dated 4 April 2017 under the heading ‘2. Request for Employee Records and Pay Slips’ the applicants’ solicitor acknowledged that some pay slips were provided to the applicants on 3 February 2017.[107]
[107] Exhibit P.
After listing the outstanding pay slips in relation to each of the applicants, the applicants’ solicitor stated:
We again refer to Punhill’s obligations to provide the above pursuant to the Fair Work Act 2009 (Cth) and associated regulations. Please provide a copies (sic) of the requested pay slips as a matter of urgency.[108]
[108] Exhibit P.
In light of correspondence which expressly continues to seek the production of employment contracts and outstanding pay slips, it is open to the court to conclude that these were the only documents that the applicant sought after 4 April 2014. To the extent that there was a broader and more general request for the production of employment records, this request was no longer pressed after the letter of 4 April 2017.
For each of these reasons, when viewed in context and having regard to the fact that the applicants were legally represented at the time, I find that the applicants abandoned their request for any employee records at large. The only requests which were pressed following the 4 April 2017 letter were for the applicants’ employment contracts and outstanding pay slips.
Is the request for outstanding pay slips a request for employee records?
The FW Act and the Regulations distinguish between employee records and pay slips. Importantly, the FW Act distinguish between the timing and manner in which employee records and pay slips are to be provided to employees. The former are to be provided upon request within specified timeframes, whereas the latter are to be provided within a specified timeframe after payment is made for work performed.
The consequences of a breach of the employment record provisions is the exposure to the imposition of a penalty. It is therefore important that an employer is clearly put on notice of what is being sought.
That is, an employer is required under section 536(1) to provide a pay slip to an employee within one working day of paying the employee for their work. The pay slip must also contain information prescribed by the Regulations.[109] Regulation 3.46 then sets out the information which must be included in pay slips, some of which is also information an employer is required to maintain as an employee record.
[109] Fair Work Act 2009 (Cth) s 536(2)(b).
There is no obligation either in the FW Act or in the Regulations that an employer retain copies of or provide pay slips to an employee upon request. Once provided to the employee at the time of payment, the employer has discharged their obligation under section 536(1).
Having found therefore that the only claim subsisting after 4 April 2017 was a request for pay slips, I find that such a request is not of itself a request for employee records per se. A failure to provide pay slip records therefore cannot therefore amount to a breach of section 535 of the FW Act.
For these reasons, the applicants have not established a breach of section 535 of the FW Act or the Regulations.
Liability of the second respondent
In light of my findings regarding the liability of the first respondent, there is no contravention in which the second respondent could be involved.
First applicant’s contractual claim
The first applicant’s evidence, which was not disputed, was that she initially commenced working for the first respondent in about November 2010 in an administrative role. She remained in that role until about April 2011.[110] At that time she was in Australia on a working holiday visa, which she said was due to expire in June 2011.[111] She discussed this with the second respondent in about December 2010 and said that she and the second applicant were interested in hotel manager roles if such become available.
[110] Affidavit of Lilli Kramer sworn 14 June 2019 and filed 17 June 2019 at paragraph 11.
[111] Affidavit of Lilli Kramer sworn 14 June 2019 and filed 17 June 2019 at paragraph 12.
In or about February 2011, the applicants were offered positions as relief hotel managers by the second respondent. They accepted these positions and did not commence until April and May 2011.[112] Also in about February 2011, the second respondent introduced the first applicant to Ms Abrahams to assist with her visa application.[113] The first applicant was ultimately granted a subclass 457 visa.
[112] Affidavit of Lilli Kramer sworn 14 June 2019 and filed 17 June 2019 at paragraphs 17 to 19.
[113] Affidavit of Lilli Kramer sworn 14 June 2019 and filed 17 June 2019 at paragraph 16.
The first applicant gave extensive evidence about various enquiries made during her employment about the terms and conditions of her employment. These enquiries and complaints were at all times directed to either the second respondent, her husband, or subsequently, the second respondent’s son.
It was common ground that the applicants commenced in the resident hotel manager roles at Punthill Burwood on 3 January 2013.[114]
[114] Affidavit of Lilli Kramer sworn 14 June 2019 and filed 17 June 2019 at paragraph 36.
In this context, the first applicant gave the following evidence:
My application to work and live in Australia permanently was started to be prepared in around August 2014 by Lorraine Abraham … who was involved in the earlier visa applications.
In October 2014 I was provided with a new employment contract letter from Punthill dated 8 October 2014 and signed by Robin. I accepted and signed it.[115]
[115] Affidavit of Lilli Kramer sworn 14 June 2019 and filed 17 June 2019 at paragraphs 49 and 50.
It was also common ground that the first applicant’s application to work and live in Australia was successful and she was ‘granted a subclass-186 visa, sponsored by Punthill, on 27 August 2015.’[116]
[116] Affidavit of Lilli Kramer sworn 14 June 2019 and filed 17 June 2019 at paragraph 51.
It was in this context that the first applicant’s contractual underpayment claim arose.
The first applicant claimed that on or about 8 October 2014, she was offered an increase to her salary to $55,000 per annum plus 9.5% superannuation. The first applicant further claimed that on or about 9 October 2014, she accepted that offer by signing the offer letter and returning it to the respondent.[117]
[117] Applicants’ amended statement of claim filed 21 December 2018 at paragraphs 57 and 58.
The first applicant further claimed that in breach of this express term of her contract of employment, the first respondent did not pay her at the rate of $55,000 per annum plus 9.5% superannuation, and as a consequence, she suffered and continued to suffer loss and damage.[118]
[118] Applicants’ amended statement of claim filed 21 December 2018 at paragraphs 60 to 61.
It was not in dispute that Mr Caras became involved in the first respondent’s business from about June 2014, following the death of his father. His evidence, which I accept, was that from this time, he shared the overall management of Punthill with the second respondent.[119]
[119] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraphs 3 to 5.
It was also not in dispute that the applicants’ employment contracts dated 7 December 2012 provided that each of the applicants received a package of $45,235 gross per annum consisting of:
a)a base salary of $41,500 per annum;
b)superannuation;
c)accommodation of a one bedroom unit in Punthill Burwood; and
d)associated utilities.[120]
[120] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-6.
Mr Caras’ evidence, which I accept, was that the applicants received a pay increase in June 2014 resulting in their combined annual salary increasing to $87,000 plus superannuation, plus accommodation and utilities.[121]
[121] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexures AC-9 and AC-10.
It was also common ground that the first respondent sponsored the first applicant’s application for permanent residency. Mr Caras stated that:
From September 2014, I spent many hours corresponding with Lorraine and Lilli, preparing documents and collating supporting information to support Lilli to obtain a permanent resident visa. I did this at a time when I was learning the business, recovering from the loss of my father, supporting my mother and working long hours to learn and manage the business.[122]
[122] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at paragraph 77.
Mr Caras’ evidence, which I accept, was that it was in this context that he sent an email to Ms Abrahams on 8 October 2014 attaching a copy of an employment contract for the first applicant providing for a gross annual salary of $55,000. The email to Ms Abrahams stated:
Please find the requisite documents attached. Let me know if any of these need to be adjusted.
Lilli’s $55,000 (sic) is partly from wages and partly from accommodation that Punthill provides her.[123]
[123] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-15.
In response to Mr Caras on the same day, Ms Abraham stated:
Thank you!
Attached please find 3 forms to check.
…
One last question: do you have any other managers that re on the same packages as Lilli and Jo?[124]
[124] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-16.
The three forms attached to Ms Abraham’s email were migration documents relevant to the first applicant’s visa application.[125]
[125] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-16.
Ms Abrahams subsequently submitted an application for the first applicant’s class 457 visa on or about 16 October 2014.[126]
[126] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-17.
On 5 November 2019, there was further communication between Ms Abraham and Mr Caras regarding the first applicant’s visa application. Ms Abraham advised Mr Caras that the first respondent’s sponsorship had been approved and requested the following:
With regard to the nominations, Immigration requires the following:
1.The 2 contracts to be counter-signed by the employees. Attached – please arrange to be signed and return to me.
2. …
…
Any chance of getting this all back today or tomorrow?
Thanks Alan.
Regards
Lorraine[127]
[127] Court book volume 3 pages 222 to 223.
It was in this context that on 5 November 2014, Mr Caras sent an email to the first applicant in the following terms:
Hi Lilli,
Are you able to sign the attached document and return it to Lorraine Abraham. She requires it to complete the approval process for your visa (emphasis added).[128]
[128] Court book volume 3 page 227.
Attached to this email was a document which purported to be a contract of employment for the first applicant dated 8 October 2014, providing that the first applicant was entitled to a remuneration of $55,000 gross per annum plus superannuation of 9.5%.[129]
[129] Court book volume 3 pages 228 and 229.
The first applicant then replied the following day:
Hi Alan,
I will sign the document and send it to Lorraine asap.
Thank you for your help.
Lilli[130]
[130] Court book volume 3 page 231.
In February 2015, there was further correspondence between Ms Abrahams and Mr Caras regarding the documentation required for Ms Kramer’s visa application which evidenced her remuneration package.[131]
[131] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-21.
On 26 February 2015, Ms Abraham sent the application for an employer nomination for a permanent appointment documents to the first applicant and Mr Caras and asked them to review them and confirm they were correct and sought authorisation to submit the forms with the Department of Immigration and Border Protection.[132] That document relevantly stated that the first applicant’s base rate of pay was $41,500 per annum and her guaranteed annual earnings were $55,000. The following question and answer was provided:
[132] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-23.
Give details of how the base pay and guaranteed annual earnings were determined.
Punthill provides accommodation and associated expenses as part of the salary package. This is standard practice for all residential managers. See attached letter from employer.[133]
[133] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-23.
There was further correspondence between the first applicant, Mr Caras and Ms Abrahams regarding the documentation the first applicant required to progress her visa application.[134] It appears from some of this correspondence that Ms Abrahams prepared some of the versions of these documents, provided them to Mr Caras for his consideration and asked him to confirm and amend the figures if necessary.[135]
[134] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexures AC-24 to AC-29.
[135] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-25.
On 18 March 2015, the first applicant sent an email to Mr Caras following up on documentation for the purpose of pursuing her visa application.[136] In response, Mr Caras sent further documents with an email in which he said:
Please find the requested documents for Lilli[‘s] … visa applications.
Hope this is what’s required. Let me know if any adjustments are needed.
Thanks very much and sorry for the extreme delay on getting to this![137]
[136] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexure AC-26.
[137] Affidavit of Alan Rory Caras affirmed and filed 30 July 2019 at annexures AC-27 and AC-28.
Findings
Having regard to the totality of the evidence, I make the following findings:
a)the first applicant engaged Ms Abrahams to assist her with her visa application;
b)at no stage before the preparation of the 8 October 2017 letter did the first applicant and the first respondent engage in any negotiations regarding the first applicant’s employment terms and conditions; and
c)Ms Abraham’s role was to act as the first applicant’s migration agent; at no stage was she acting as the first applicant’s agent in relation to her terms and conditions of employment.
In those circumstances, I find that there was no change to the first applicant’s employment contract by the document dated 8 October 2014. There was no offer of an increase to the first applicant’s rate of remuneration. I do not find that there was any acceptance of such an offer. It is somewhat disingenuous of the first applicant to claim that correspondence by a sponsor in a migration process ought now be construed as such.
For these reasons, the first applicant’s contractual claim is not made out.
Conclusion
As none of the applicants’ claims have been made out, I order that the applicants’ applications be dismissed.
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 19 June 2020
[65] Public Health and Wellbeing Act 2008 (Vic), s. 67.
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