Lal v Biber

Riethmuller J of the Federal Court of Australia considered a dispute brought by an applicant alleging underpayment of wages and breaches of employment law. The applicant claimed to have been engaged by the first respondent, Mr Biber, and subsequently employed by the second respondent, Denali Foods Pty Ltd (in liquidation), and then another entity. The applicant alleged that both Mr Biber and the third respondent, Ms Bacon (the bookkeeper), were knowingly involved in the alleged contraventions by the employing entities. The applicant contended that he worked significantly more hours than permitted by his student visa and was paid below the minimum Award rates, without relevant penalty rates, resulting in an alleged underpayment exceeding $147,900.

The central legal issues before the court were whether the first and third respondents were knowingly involved in the contraventions of the second respondent, and consequently, whether orders could be made against them for the alleged underpayments. The court was required to determine the extent of the applicant's entitlement under the relevant Award and compare it to the amounts actually paid, considering the roles and knowledge of Mr Biber and Ms Bacon in the preparation of pay documents and the overall employment arrangements.

Riethmuller J found that the first respondent, Mr Biber, was knowingly involved in the contraventions of the second respondent. However, the court dismissed the claims against the third respondent, Ms Bacon, noting that while she prepared payslips accurately reflecting instructions given to her, these did not necessarily reflect the true employment arrangement. As the second respondent was in liquidation, the court could not make orders for payment of underpaid wages against it. Since Mr Biber was not the direct employer, orders for unpaid wages could not be made against him. The court therefore directed that the matter be listed for further hearing to consider penalty or compensation orders against the first respondent and consequential orders.