Martin v Repeller Nominees Pty Limited & Ors (No.2)
[2019] FCCA 2102
•29 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTIN v REPELLER NOMINEES PTY LIMITED & ORS (No.2) | [2019] FCCA 2102 |
| Catchwords: INDUSTRIAL LAW – Accessorial liability. |
| Legislation: Fair Work Act 2009, ss.45, 535, 545, 550 |
| United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board (2006) 152 FCR 18 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 Kucks v CSR Ltd (1996) 66 IR 182 Boreland v Reserve Hotels Pty Ltd [2013] FWC 2063 Staples v Omnibell Pty Ltd t/as The Grove Inn Hotel (2005) 147 IR 433 Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd [2014] FCCA 1115 Potter v Fair Work Ombudsman [2014] FCA 187 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Yorke v Lucas (1985) 158 CLR 661 Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302 Rural Press Ltd v Australian Competition & Consumer Commission (2002) 118 FCR 236 Heydon v NRMA Ltd (2000) 51 NSWLR 1 Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 Giorgianni v The Queen (1985) 156 CLR 473 |
| Applicant: | TANYA MARTIN |
| First Respondent: | REPELLER NOMINEES PTY LIMITED |
| Second Respondent: | BRIAN PERRY |
| Third Respondent: | ANGELA PEACE |
| File Number: | SYG 1091 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing date: | 10 – 12 April 2017, 31 October – 2 November 2017 |
| Date of Last Submission: | 2 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Miles |
| Solicitors for the Applicant: | Clark McNamara |
| Counsel for the Respondents: | Ms R.L. Gall |
| Solicitors for the Respondents: | Crowther Sim |
THE COURT DECLARES THAT:
The first respondent contravened s.535 of the Fair Work Act 2009 and regs.3.33, 3.34 and 3.42 of the Fair Work Regulations 2009 by failing to make, keep and have available for inspection records of any overtime worked by the applicant in the period of 1 July 2010 to 10 April 2012.
The second and third respondents were involved in the first respondent’s contraventions of s.535 of the Fair Work Act 2009 and regs.3.33, 3.34 and 3.42 of the Fair Work Regulations 2009 and so are taken to have contravened those provisions.
THE COURT ORDERS THAT:
The matter be listed for further directions on 20 September 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1091 of 2016
| TANYA MARTIN |
Applicant
And
| repeller nominees pty limited |
First Respondent
| brian perry |
Second Respondent
| angela peace |
Third Respondent
REASONS FOR JUDGMENT
ALLEGATIONS
The parties
The first respondent (“Repeller”) operates a hotel called the Harbour View Hotel (“Hotel”) in The Rocks, Sydney. The second respondent, Mr Perry, and the third respondent, Ms Peace, are the directors of Repeller.
The applicant, Ms Martin, alleged that she was employed by Repeller as the Hotel’s functions manager from 7 April 2008 to 16 February 2015. This proceeding was commenced on 4 May 2016.
Award coverage
Ms Martin alleged that from 1 January 2010 in her employment she was covered by the Hospitality Industry (General) Award 2010 (“Award”) and that her duties and position were within the managerial staff classification set out in in sch.D.2.9 to the Award.
Terms and breaches of the Award
Ms Martin alleged that she had had the following entitlements under the Award:
a)pursuant to cl.33.2(a) – overtime for work performed in excess of her ordinary hours of work on any day between Monday and Friday, at 150% of the normal rate of pay for the first two hours of overtime and twice the normal rate of pay for any overtime thereafter;
b)pursuant to cl.33.3(a) – overtime for work performed in excess of her ordinary hours of work between midnight Friday and midnight Sunday, at twice the normal rate of pay;
c)pursuant to cl.32.1 – penalty rates for work performed on a Saturday at the rate of 125% of the minimum wage for her classification;
d)pursuant to cl.32.1 – penalty rates for work performed on a Sunday at the rate of 175% of the minimum wage for her classification; and
e)pursuant to cl.32.1 – penalty rates for work performed on a public holiday at the rate of 250% of the minimum wage for her classification.
Ms Martin also alleged that, pursuant to cl.31.2 of the Award, she had been entitled to be released from work for an unpaid meal break of 30 minutes if required to work a shift of between six to eight hours, and an additional 20 minute paid break if required to work a shift of between eight and ten hours. Otherwise, pursuant to cl.31.4 of the Award, she had been entitled to be paid a loading of 50% for each hour worked in excess of six hours without a meal break.
Ms Martin alleged that during the period 1 January 2010 to 16 February 2015 the respondents contravened those Award provisions, resulting in the following underpayments:
Entitlement
Underpayment
Overtime
$72,697.31
Penalty rates for work performed on Saturdays and Sundays
$66,562.24
Penalty rates for work performed on public holidays
$6,683.62
Loading on hours worked without a meal break
$17,257.01
Total
$163,200.18
Breaches of the Fair Work Act
Ms Martin alleged that Repeller also contravened s.535 of the Fair Work Act 2009 (“FW Act”) and regs.3.33, 3.34 and 3.42 of the Fair Work Regulations 2009 (“FW Regulations”) because it had failed to make, and keep for seven years, employee records containing details of her overtime hours and remuneration (including penalty rates and loadings), and had failed to make a copy of the records available for her inspection and copying.
Ms Martin also alleged that Repeller had unreasonably failed to disclose her employment records to her.
Accessorial liability
Ms Martin alleged that Mr Perry and Ms Peace were knowingly concerned in, or parties to, the contraventions of the FW Act committed by Repeller. In relation to Mr Perry, Ms Martin alleged:
a)he was a director of Repeller and was involved in its daily operations;
b)he had knowledge of the staffing arrangements of the Hotel, including her hours of work;
c)he communicated to her the hours she was required to work; and
d)he observed her hours of work on a regular basis.
In relation to Ms Peace, Ms Martin alleged that she:
a)was a director of Repeller and was involved in its daily financial operations;
b)communicated to her the hours she was required to work; and
c)observed her hours of work on a regular basis.
Relief
Ms Martin sought declarations that Repeller had contravened s.45 of the FW Act by failing to comply with the provisions of the Award, and that pursuant to s.550 of the FW Act Mr Perry and Ms Peace were involved in those contraventions. She also sought payment by the first respondent of amounts allegedly underpaid, interest on those amounts, and declarations under s.545(2)(b) of the FW Act that Mr Perry and Ms Peace were jointly and severally liable to pay those amounts. Ms Martin also sought the imposition of pecuniary penalties on all the respondents.
In her written submissions, Ms Martin abandoned any claim for underpayment that related to the period prior to 1 July 2010.
RESPONSE
Employment and Award coverage
The respondents alleged that Ms Martin held the following positions during her employment:
a)from 7 April 2008 to 31 January 2012 – functions manager of the Hotel;
b)from 1 February 2012 to 10 April 2012 – acting licensee of the Hotel; and
c)from 11 April 2012 to 13 February 2015 – licensee of the Hotel.
The respondents alleged that as the functions manager and later the Hotel’s licensee, Ms Martin had occupied senior management positions and was therefore excluded from the Award’s coverage.
The respondents also alleged that Ms Martin did not work the hours alleged in her application.
Directors’ roles
The respondents admitted that Mr Perry was engaged in the daily operations of the Hotel. However, they alleged that Ms Peace’s involvement was limited to payroll and that she was not otherwise involved in the Hotel’s daily operations.
Estoppel
The respondents alleged that Ms Martin was estopped from bringing this application because she had previously commenced separate proceedings for unfair dismissal and unpaid employment entitlements, both of which had been settled by Deed of Settlement and Release.
RELEVANT LEGISLATION
Fair Work Act
At all material times, the FW Act relevantly provided:
45Contravening a modern award
A person must not contravene a term of a modern award.
535Employer obligations in relation to employee records
(1)An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
(2)The records must:
(a) if a form is prescribed by the regulations—be in that form; and
(b) include any information prescribed by the regulations.
(3)The regulations may provide for the inspection of those records.
…
545 Orders that can be made by particular courts
Federal Court and Federal Circuit Court
(1)The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
(2)Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
…
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
…
550Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
At all material times, the FW Regulations relevantly provided:
3.33Records — pay
(1)For subsection 535 (1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:
(a) the rate of remuneration paid to the employee; and
(b) the gross and net amounts paid to the employee; and
(c) any deductions made from the gross amount paid to the employee.
…
(3) If the employee is entitled to be paid:
(a) an incentive-based payment; or
(b) a bonus; or
(c) a loading; or
(d) a penalty rate; or
(e) another monetary allowance or separately identifiable entitlement;
the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.
3.34 Records — overtime
For subsection 535 (1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies:
(a)the number of overtime hours worked by the employee during each day; or
(b)when the employee started and ceased working overtime hours.
3.42 Records — inspection and copying of a record
(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.
Hospitality Industry (General) Award 2010 provisions
As at 1 July 2010 Part 4 of the Award relevantly provided as follows:
Part 4 - Classifications and Minimum Wage Rates
…
19. Classifications
The definitions of the classification levels in clause 20 - Minimum wages are contained in Schedule D - Classification Definitions.
20. Minimum wages
20.1 General
An adult employee within a level specified in the following table (other than an apprentice) will be paid not less than the rate per week assigned to the classification, as defined in Schedule D - Classification Definitions, for the area in which such employee is working. An employee's rate of pay is inclusive of the award rate set out in this clause and the additional allowance for a fork - lift driver set out in clause 21.2(a).
…
20.2 Managerial staff - hotels
(a)The minimum annual salary payable to employees within the Managerial staff - hotels classification level within Schedule D, will be $37,722 per annum.
(b)Salaries absorption
Employees within the Manager classification level within clause 20.2(a), who are in receipt of a salary of 25% in excess of the minimum annual salary rate of $37,722 per annum (in receipt of a salary of at least $47,152.50 per annum), will not be entitled to the benefit of the terms and conditions within the following clauses:
· clause 12 - Part - time employment;
· clause 21 - Allowances;
· clause 29 - Ordinary hours of work;
· clause 31 - Breaks;
· clause 32 - Penalty rates;
· clause 33 - Overtime;
· clause 34.2 - Payment for annual leave;
· clause 37.1(b)(i) - additional arrangements for full - time employees (on public holidays);
· clause 39 - Provision of employee accommodation and meals.
…
As at 1 July 2010 Part 5 of the Award relevantly provided as follows:
Part 5 - Hours of Work and Related Matters
29. Ordinary hours of work
29.1The hours of work of a full - time employee are an average of 38 per week.
…
31. Breaks
…
31.2If the unpaid meal break is rostered to be taken after five hours of starting work, the employee must be given an additional 20 minute paid meal break. The employer must allow the employee to take this additional meal break no earlier than two hours after starting work and no later than five hours after starting work.
…
32. Penalty rates
32.1An employee performing work on the following days will be paid the following percentage of the minimum wage rate in clause 20 - Minimum wages for the relevant classification:
…
33. Overtime
…
33.2 Entitlement to overtime rates
(a)A full - time employee is paid at overtime rates for any work done outside of the hours set out in clause 29 - Ordinary hours of work.
…
Schedule D - Classification Definitions
…
D.2 General classification definitions
…
D.2.9 Managerial staff - hotels
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:
·Company secretary;
·Chief accountant;
·Personnel or human resources manager;
·Financial controller;
·Industrial relations manager;
·Venue manager;
·General/hotel manager;
·Executive assistant manager;
·Regional manager; or
·a Manager to whom any of those positions report or are responsible.
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; Assistant food and beverage manager; Assistant rooms division manager; Assistant front office manager or equivalent position.
APPLICANT’S EVIDENCE
Tanya Martin
Recruitment
Ms Martin deposed that she started working at the Hotel on 7 April 2008 on a salary of $46,000 per annum. At her initial interview for the job, Mr Perry had advised her that the position was available because the Hotel’s then-functions manager, Marika Mothersole, was moving to a new position at the Kings Cross Hotel, which Mr Perry and Ms Peace also owned. Ms Martin deposed that at no time was she given a written contract of employment.
Ms Martin deposed that she was employed by Repeller from 7 April 2008 to 16 February 2015 and was the Hotel’s functions manager throughout that period. Over time her role expanded and she absorbed additional duties, including duties as the Hotel’s licensee. Ms Martin also deposed that her initial title was “functions co-ordinator” but in 2014 she began training another employee (Lucy Hurren) in her role and, with Mr Perry’s approval, changed her title to “functions manager”.
Ms Martin deposed that a functions manager was not the same as a venue manager. As functions manager, she was responsible for the co-ordination and booking of venue functions, not the venue itself or its operations. She deposed that she was never employed as a venue manager.
Ms Martin deposed that during her employment she had almost daily contact with Mr Perry in person and Ms Peace on the telephone who, between them, ran the Hotel through Repeller.
Mr Perry’s role
Ms Martin deposed that between the start of her employment in 2008 and the sale of the Kings Cross Hotel in 2010, Mr Perry worked mostly at the Kings Cross Hotel. Following the sale of that Hotel and until the termination of her employment, Mr Perry was based permanently at the Hotel and directed its operations. Ms Martin deposed that Mr Perry was there every day and she reported directly to him.
Ms Martin deposed that Mr Perry’s role and responsibilities included:
a)all maintenance of the Hotel, which as a heritage listed building required substantial upkeep. Mr Perry would arrange plumbing, painting, electrical work and ongoing maintenance;
b)hiring and firing of all senior persons at the Hotel including managers, the cellarman, the licensee, the chefs and the functions managers. Ms Martin deposed that low-level cooks, kitchen staff and bar staff were usually hired by the Hotel’s managers and chefs;
c)overseeing the cellarman and looking after the cellar, beer lines and all utilities; and
d)attending to all financial matters and Hotel payments for entertainment and to suppliers, security contractors and cleaners.
Ms Peace’s role
Ms Martin deposed that Ms Peace was responsible for the Hotel’s accounts, which were managed off-site at an office in Hornsby. She also exercised authority as a director of the Hotel, was responsible for the Hotel’s occupational health and safety (“OH&S”), exercised common human resources functions and correspondence would be forwarded to her. She would also occasionally be involved in other aspects of the business, such as maintenance decisions, choice of carpets and, when in attendance at the Hotel, would give directions to staff if she saw something requiring attention.
Ms Martin said that she was aware of what Ms Peace did on a day-to-day basis through telephone conversations, email and a “dropbox”.
Ms Martin said that Ms Peace was very much involved in the business and would often called her to discuss the Hotel’s functions and function “run sheets”. She and her accounts staff would also often contact Ms Martin regarding figures, performance of tasks and general supervision of tasks.
Functions manager
Ms Martin deposed that she was instructed that her regular hours of work would be 9:00am to 5:00pm, Monday to Friday, with a one hour break for lunch. She deposed that she was able to have lunch breaks while Ms Mothersole remained at the Hotel. However, when Ms Mothersole moved to the Kings Cross Hotel in November 2008 Ms Martin was required to eat lunch at her desk because the telephone could not be left unattended. Ms Martin deposed that there was no one else on staff who could deal with phone inquiries so she was not allowed to leave the Hotel. However, from time to time, Mr Hunter or Mr Perry would cover the telephone and give her a break.
Ms Martin deposed that even though Ms Mothersole remained at the Hotel for a period of approximately eight months from the commencement of her employment, after the first three months she assumed full responsibility as the functions manager because Ms Mothersole was occupied with tasks for the Kings Cross Hotel.
Ms Martin deposed that her responsibilities as functions manager included the following:
a)meeting and having telephone conversations with clients and potential clients for the use of the Hotel, including function prices, room hire and whether the Hotel would accept their booking. Bookings were refused if they fell outside the Hotel’s guidelines;
b)receiving and responding to correspondence and emails that came through the Hotel and forwarding all correspondence to Mr Perry and Ms Peace;
c)weekly planning for the Hotel’s functions and finalising “run sheets” detailing the events during the week and particular food and drink requirements for staff and management to attend to;
d)arranging the format of functions according to client specifications, as well as decorations;
e)cleaning, clearing and balancing the poker machines, of which there were fifteen, and the ATM;
f)collecting money by making telephone calls to clients with overdue invoices; and
g)administration associated with the functions at the Hotel.
Ms Martin deposed that she was responsible for putting events together but was not responsible for running them; that job fell to the managers. She had no control over staff allocations for events and, while she would advise the chef of any dietary requirements, the chef did not report to her. Even so, Ms Martin occasionally attended events to make sure that they ran according to plan.
Ms Martin said that each morning the previous day’s takings were counted, balanced and reconciled in preparation for the restocking of the tills and the daily banking. In her affidavit sworn 2 February 2017 Ms Martin deposed that she arrived at work every morning at around 7:30am to take care of any tasks that involved money as Mr Perry required all cash to be provided to him upon his arrival between 9:00am and 10:30am so he could attend to the banking. This included petty cash, emptying/balancing the poker machines and ATM, checking the takings from the previous night and preparing the breakdown of the figures. In cross-examination Ms Martin described this activity as follows:
So at the end of each night, the restaurant, the cocktail bar, the two function rooms, the main bar downstairs – the managers would empty all the tills, run off all of the printouts of what they’ve collected and made for the day, and balanced the tills back, and had the surplus of the cash. So I would, basically, be balancing the – all the credit cards that were taken from that particular till, together with the cash that was taken from the till, and marrying that up to the – the till was in the reports that the managers had printed. To then be able to put it in the Dropbox so Angela could see the figures from the day before. And then Brian could then take the banking to the bank to bank it. So that’s why it was a morning thing. Every morning.
In her examination in chief she had described the process in the following terms:
All of the different bar areas, restaurants and the different function rooms, all of the tills would be tallied off and the surplus out of each of those tills would be all bagged up. So I would be given bags per bar per function room and then I would have a – my own little, sort of, trial balance spreadsheet on the computer in which I would punch in the figures, depending on which bar, which event when it all, sort of, crossed and balanced. That was then put into a drop box so that Repeller, the minute it was finished, would be able to cite what the figures were.
Ms Martin deposed that Mr Perry would review the figures against an updated trial balance and would call Ms Peace to tell her which of the Hotel’s suppliers needed to be paid, a process which would take Mr Perry most of the morning.
Ms Martin deposed that after providing Mr Perry with the money, she had to be ready to begin her work as functions manager at 9:00am.
Ms Martin deposed that from 2010 onwards, she would have lunch meetings with Mr Perry at least once or twice a week. As she worked there longer, and particularly in 2014 and the start of 2015, these meetings would occur almost every day. Ms Martin deposed that Mr Perry would finish his accounts at lunchtime and then call her for a meeting. She deposed that she would provide him with updates on the accounts, figures, functions, and takings for the day so far, with lunch being served somewhere in the midst. However, in cross-examination Ms Martin said that although she and Mr Perry updated each other as to what had been going on in the Hotel, she said she was not across all finances because she did not know the Hotel’s outgoings. She did see some invoices which were sent to Repeller but she never ordered anything which would generate an invoice.
In her affidavit sworn 2 February 2017 Ms Martin deposed that during these meetings, Mr Perry would receive reports from sub-contractors and staff about Hotel matters, while she would receive reports regarding functions. In cross-examination Ms Martin denied that staff reported to her regarding functions but said they did let her know how events had gone because, she seems to have assumed, they viewed her as some sort of senior employee. They discussed and shared information because they worked together as a team with the sole goal of making sure that the functions worked well. In cross examination she also said that other staff participated only sometimes and generally it was just Mr Perry and her in the meeting.
Ms Martin deposed that the meetings could take up to two or three hours and during this time she was also expected to answer the phone and see clients.
Transition to licensee
Ms Martin deposed that when the then-licensee, Mr Hunter, left the Hotel in December 2010 she was acting licensee until January 2011, whilst also performing her duties as functions manager. On 26 December 2010 Ms Martin moved into the manager’s flat in the Hotel as a result, she deposed, of her personal relationship with Mr Perry.
Ms Martin deposed that a CCTV viewing program was installed on her personal computer and was meant to be a security device for her while the Hotel was closed so that she would know that she was safe in the building. Practically, this meant that she was always looking at the monitor when she was not on duty.
Ms Martin deposed that a telephone was also installed in her flat and she was instructed by Mr Perry to answer the phone when no one else was available. She deposed that the phone would ring at all hours of the night when she was not on duty and, if no one responded, she would have to answer it. She deposed that she often answered the phone in her pyjamas or while she was in the middle of dinner to take reservations for the restaurant in the Hotel.
Ms Martin deposed that after Mr Hunter left she would come in even earlier than previously, around 5:30am to 6:30am, to give sub-contractors, beer-line cleaners, repairs and maintenance personnel access to the Hotel and to supervise them while they were on the premises.
Ms Martin deposed that the Hotel’s alarm would regularly go off when a contractor, sub-contractor or service staff commenced work in the early morning. She deposed that this occurred on a weekly basis, usually at around 5:00am, and she would have to get up and turn it off. Ms Martin deposed that she was very concerned that the alarm never went on for too long as the Hotel was in a residential area and noise complaints and other social issues with the neighbours were to be addressed immediately.
In January 2011 George Poulos was appointed as the new licensee. However, following his departure in January 2012, Mr Perry asked Ms Martin to act in the licensee role again. She deposed that she accepted the appointment but said to Mr Perry words to the effect of:
If you want me to be licensee, you need to help me, you need to be here. I couldn’t be left on my own.
Ms Martin deposed that she was the acting licensee until 11 April 2012, when she became the registered licensee of the Hotel.She said that had been asked to hold the licence for a temporary period until Repeller found a more appropriate person to take the role. She also said that she preferred to be a nine-to-five worker rather than cope with the additional demands of being a Hotel licensee. Ms Martin said that as she was still the functions manager she spent a lot of her time in her office performing that role but was also:
… up and down those stairs like a yoyo all day, in and out of my office delivering run sheets, changes to events that were coming, updating people about phone calls that I … received. I was all over the shop.
She remained the licensee until her termination in February 2015.
Licensee duties
Ms Martin deposed that the statutory responsibilities of a licensee under the Liquor Act 2007 (NSW) and the Liquor Regulation 2008 (NSW), did not did not include having “personal” responsibility for the management and operations of licensed premises or principal responsibility for the conduct of the Hotel business. However, she accepted in cross-examination that in fact she was responsible for the personal supervision and management of the conduct of the business of the Hotel under the licence, albeit with the assistance of the managers, and that in some cases she could be held liable if the Hotel breached the Liquor Act or the Liquor Regulations and so she made a point of making sure that staff complied with their legal obligations through signage, memos and notices.
Ms Martin deposed that as licensee she was rostered to work from 9:00am to 5:00pm, Monday to Friday. However, because she lived at the Hotel and her role expanded, her hours of work were significantly in excess of her ordinary hours. She also deposed that her hours were not ordinary in the sense that she had to adapt her hours to the business’s needs.
Ms Martin deposed that her statutory obligations as licensee relevantly included:
a)in some cases, the obligation to undertake a course of training and instruction;
b)complying with directions issued by the Department of Trade and Investment, Regional Infrastructure and Services;
c)not allowing minors to be served alcohol on licensed premises;
d)not allowing minors to enter and remain in certain licensed premises;
e)being liable for the acts of employees; and
f)holding a current RSA certification.
Ms Martin agreed that, as licensee, she attended meetings of the Liquor Accord which took place before significant public occasions or events, such as St Patrick’s Day, ANZAC Day and New Year’s Eve, which might affect trading at the Hotel, in particular through significantly increased patronage. As licensee she also met with the police, including the local licensing sergeant, and the Liquor and Gaming Authority.
Ms Martin said that it was a condition of the Hotel’s licence that it have security guards. She said that the guards at the Hotel were on a standard, permanent roster which was monitored by the managers. She said that any changes to the roster would have been agreed by Mr Perry because roster changes affected the Hotel’s finances. She also said that she did not have discretion to add extra guards and could only do so with Mr Perry’s permission.
Ms Martin deposed that from December 2010 (when she moved into the manager’s flat at the Hotel), whenever the police arrived at the Hotel and required the licensee’s presence, she was required to turn up. If the police arrived when she was not on duty, she would get out of bed, get dressed and go down to the Hotel to meet them. She deposed that all correspondence with the police and the city council also came to her as the licensee.
Ms Martin said that when first performing the role of licensee, the document setting out the Hotel’s licence conditions was her working guide. From there it was trial and error. Ms Martin spoke of her understanding that Mr Perry had many years’ experience in the Hotel industry and how she would rely on his advice to discharge her duties as licensee. For instance, if she needed to apply for an extension of the licence for a special occasion, he would complete the necessary forms and she would sign them or she would copy them out and sign them. Ms Martin said that when the Hotel received noise complaints, which were matters which needed to be addressed quickly, on most occasions she would consult with Mr Perry before acting.
Ms Martin deposed that while on paper she was the licensee and took on some of the licensee’s duties, she did so strictly under Mr Perry’s direction and he carried out all the management and senior management functions of the Hotel without reference to her. Ms Martin also said that she had nevertheless taken her responsibilities seriously.
Ms Martin deposed that she had had no supervisory role at the Hotel and that the functions manager, head chef, and managers did not report to her as licensee but to Mr Perry instead. Ms Martin deposed that no one reported to her apart from Ms Hurren who, for a short period, was being trained in the functions co-ordinator role. She deposed that she had limited contact with suppliers.
As she was both licensee and the functions manager, she had to be at the Hotel from 9:00am to 5:00pm, although she was generally there from 7:30am. She deposed that she was always required to be at the premises before the Hotel opened for trading because she lived at the Hotel and her role expanded, her hours of work were significantly in excess of her ordinary hours. She deposed that she had to adapt her hours to the business’s needs.
Ms Martin deposed that she was always required to work on public holidays such as ANZAC Day, Labour Day and Boxing Day. As licensee, she was legally responsible for the Hotel’s compliance with liquor laws and often worked double shifts or prolonged shifts on these days. She also did extra work after hours in her flat to prepare for certain events.
Ms Martin deposed that Mr Perry and Ms Peace instructed her and the other managers to constantly monitor the numbers of customers against staffing levels and to end staff shifts if customer numbers dropped. Ms Martin deposed that she was expected to pick up any shortfall in staffing on these days. Further, Mr Perry and Ms Peace expected her to “bump off” managers as much as possible as they were the Hotel’s biggest expense, leaving her as “the last man standing” at the Hotel. As a result, on quieter days or in periods in which the other managers would take their holidays, she was required to work the managers’ shifts. Ms Martin deposed that these shifts would always be long and busy due to the reduced number of staff and she was often required to work multiple ten hour shifts in addition to working as functions co-ordinator.
On public holidays Mr Perry would ask Ms Martin to do as many shifts as possible “to help … save money”, because the managers were paid overtime but she was not.
Ms Martin deposed that contrary to claims made in the respondents’ affidavits:
a)she did not assist staff with accounts or with resolving discrepancies;
b)she did not have any OH&S responsibilities because these belonged to Mr Perry and Ms Peace as owners of the Hotel;
c)she was not the point of contact for staff in respect of pay enquiries or disputes and had no role in respect of pay matters generally. She deposed that all staff were instructed to ring the office in Hornsby if they had any queries regarding their pay;
d)she did not counter-sign staff timesheets, which were sent off-site to Repeller. Timesheets were counter-signed by managers, who would know what hours individual staff members had worked under their direction;
e)she performed no human resources duties. Specifically, she took no part in ensuring that staff wages complied with the Award;
f)she did not conduct employee training, except with Ms Hurren.However, when she moved into the Hotel and began to live there on her own, for her own security she would train people on how to lock the Hotel at night;
g)she did not recruit, hire or select candidates, nor was she responsible for dismissing employees;
h)she exercised no authority over assistant managers and no one reported to her other than Ms Hurren. Everyone reported to Mr Perry;
i)she never processed leave requests and did not have authority to;
j)she was not the point of contact for the Australian Hotels Association (“AHA”). She was not responsible for reading AHA correspondence and rarely did so. Further, although she sometimes attended AHA meetings (either on her own or with Mr Perry), she could not become a member of the organisation because she was not a hotel proprietor.She deposed that both Mr Perry and Ms Peace were members; and
k)she had no rostering responsibilities. These duties rested exclusively with the Hotel’s managers.
Other responsibilities
Ms Martin’s evidence was that between October 2010 and October 2012 and October 2013 and February 2014, she was required to drive Mr Perry to and from work. In relation to the first period, she deposed that she had lived in Epping and would leave home at around 7:00am, drive to Mr Perry’s home in Linley Point and take him to the Hotel. She would then drive him home in the evenings, often waiting until 8:00pm for him to finish his work.
Ms Martin deposed that in the second period, after she had moved into the manager’s flat, she had to wake up every morning at around 5:30am-6:00am to complete her daily tasks involving money (referred to above at [35]). Upon the arrival of the chef or another staff member at the Hotel at around 9:00am, she would drive to Mr Perry’s home to collect him, bringing the banking with her so that Mr Perry could deposit the takings on the way to the Hotel. She deposed that they usually arrived at the Hotel at or before 11:00am. She deposed that she would then be required to drive Mr Perry home at night and then return to her flat in the Hotel.
Ms Martin deposed that she also drove Mr Perry to the bank on Saturdays as he did not like to leave the generally large Friday night takings on the premises. She deposed that she was never reimbursed for tolls or for petrol and was never paid an allowance for authorised travel.
She said that Mr Perry was drunk by about 2pm to 4pm each day and, when in that condition, he would walk through the Hotel, smoking and letting people know that he was the proprietor. Ms Martin said that Mr Perry was not much help when he was drunk, which was often. Ms Martin also deposed that Mr Perry was frequently violent when drunk and would trash the Hotel’s office that she shared with him. She deposed that she would spend hours repairing the damage done to her office and would have to stay late and/or arrive early to finish her work as functions manager.
Management of Hotel operations
Ms Martin deposed that although her duties expanded when she was the licensee, she always reported to Mr Perry and Ms Peace. She deposed that Mr Perry described himself as the managing director and carried out all the management and senior management functions of the Hotel without reference to her.
Mr Perry would question and direct staff and would speak to the security guards if the police had been called. By comparison, Ms Martin said that she would do “a lap” twice a day.
Ms Martin spoke of Mr Perry and Ms Peace employing family members at the Hotel including a niece and a nephew by marriage.
Ms Martin agreed that she, like any other employee, could exclude patrons and refuse service to individuals. Further, like any other manager, she could and did open and shut the Hotel. However she denied having been ultimately responsible for running the Hotel.
Rosters & Calendars
Ms Martin deposed that her rostered hours were produced automatically as part of the standard form roster and did not reflect her true hours of work. She deposed that the staff knew that she lived at the Hotel so her hours of work were not relevant to when they could contact her and she was called at all hours to answer questions and cover shifts. Generally, her name would only appear on the roster if she had to cover a shift for another manger.
Ms Martin also deposed that after she moved into the manager’s apartment in December 2010, when the managers prepared the rosters she said to them words to the effect of “don’t worry about me, I live here” and “just let me know when you need me”. She said that she was a team-player and would have assisted whether or not she was the licensee.
Calendar and Diaries
Annexed to Ms Martin’s affidavit of 7 April 2016 was a calendar of the hours Ms Martin deposed she worked during her employment at the Hotel. She deposed that the hours the calendar purported to record were her best recollection supplemented by telephone records, doctors’ records and emails.In her affidavit of 23 March 2017 Ms Martin confirmed that although there were inaccuracies in the calendar she had worked the hours it recorded.
Ms Martin said that she had kept or worked with three sets of diaries, the functions diary, the managers’ diary and her personal diary. Her personal diaries were produced to the Court in answer to a notice to produce and Ms Martin was cross-examined extensively in relation to them. It emerged that copies of various pages of the personal diaries exhibited to Ms Martin at the time she swore her third affidavit had been redacted to exclude matters which she said were not relevant to the proceeding and that Ms Martin had also continued to add entries to the diaries after those copies were made. Her evidence was that, although her personal diaries were a primary historical source as far as the events of this case were concerned, they were also her principal record and, in effect, a notebook of events she considered relevant to this proceeding (“one master document”). Consequently, she said, when in the preparation of the case she became aware of an event which she thought needed to be recorded, even if it was a late discovery of information or recollection, she would put it in the diary. When asked how any individual entry could be identified as a contemporaneous record or a subsequent note, Ms Martin’s answer was that she would be able to tell which was which if she sat down with all her source material.
Ms Martin said that she had used her diary as a resource because the respondents had no record of her hours of work. She said that the consequence of that failure to maintain records was that all she had to work with concerning when she had worked were her diaries, friends, text messages and photographs. She kept gathering information and adding it to her diary as her master document.
Ms Martin said that she had not expected her diaries would be called for and so she had seen no problem in updating them. However, she said that when she told her legal advisers of what she was doing, they advised her to stop writing in her diary. Ms Martin would not speculate on how many late-made notes were included in her diaries although she said that the contemporaneous notes made up 95% of the information in them.
Ms Martin was also cross-examined on the redactions to her diaries and denied that she had deliberately omitted matters which had not been helpful to her case. She was taken to various redacted entries which, although they appeared to refer to her work at the Hotel, she said were personal and therefore irrelevant to the case or not relevant to overtime issues. For example, she said that she had redacted the note “check roster for next week” from her diary entry of 23 July 2013 because that had been a reminder to herself to check whether the managers who were running the staff were aware that an additional function had been booked which would require them to review the roster or to check if she, personally, had been rostered to a manager’s shift. She denied that she had redacted those words because they were contrary to her claim that she had had no rostering duties. She said that the fact that she had been willing to provide her original diaries indicated that she had nothing to hide.
The functions diary was an annual appointments diary in which each day’s functions could be recorded and the room in which they were to take place. The managers’ diary was kept in the manager’s office. Amongst other things, it was used for communication between people who were not at work at the same time. However, she did not have access to those diaries.
Salary
Ms Martin was paid an annual salary of $46,001. She deposed that, despite repeated requests, her salary was never reviewed and she was not paid overtime, penalty rates or other non-salary employee entitlements.
Ms Martin said that she had many conversations with Mr Perry about the level of her wages, which she described as “poor”. During one of these conversations, Mr Perry provided her with a document recording the higher salaries of the two previous licensees. Ms Martin said that Mr Perry kept saying that he would raise her pay but would then say that Ms Peace would not agree. Ms Martin said that Mr Perry asked that the resolution of the issue be delayed until he had settled his separation from Ms Peace.
Ms Martin spent a lot of time asking for a pay rise and claiming overtime but Mr Perry said that she was not covered by the Award (or any award) because she was the Hotel’s licensee. Ms Martin also spoke to Ms Peace about her pay but Ms Peace would refuse to discuss the matter and would refer her to Mr Perry.
Termination of employment
Ms Martin deposed that she and Mr Perry lived together in the Hotel flat for a period of about nine months from 23 April 2014 to February 2015.
In around October 2014 Ms Peace sought to terminate Ms Martin’s employment with Repeller. The termination was rescinded by Mr Perry who, in a letter to Ms Peace dated 19 October 2014, stated as follows:
As a working director and giving my full time attention to the running of the business The Harbour View Hotel.
I draw your attention to a document of Horowitz & Bilinsky of October 7, 2014 stating “Mr Perry is in effective management and control of the hotel and its business and has been for a considerable period’ [sic]
Reflecting on their statement staffing issues would fall under this assertion by your solicitors, let alone the well known fact that I have controlled the hotel for a long period of time.
…
Its [sic] not my intent to dispense with her services at this time.
Ms Martin deposed that on 9 February 2015 Mr Perry, whilst intoxicated, hit her on the head with a plate. The police issued an apprehended domestic violence order prohibiting Mr Perry from getting close to her.
Ms Martin deposed that her employment was terminated on 16 February 2015.
Documents
Numerous documents were referred to in Ms Martin’s second and third affidavits as having been exhibited to her when swearing those affidavits. These documents were, presumably through oversight, not tendered but instead treated as if they had been annexed. As the parties treated them as if they had been annexed to Ms Martin’s affidavits so have I.
Allison Ianna
Ms Ianna was employed at the Hotel in March 2013 originally as a bar-hand and later as a restaurant manager and a duty manager.
Dealings with Mr Perry
Ms Ianna said that she saw Mr Perry at the Hotel almost daily. She said that he drank and when drunk would order the staff around. He did not start drinking until the afternoon and would perform useful work in the morning. He did not become belligerent until his drinking reached a certain point, which could be as early as 2pm or as late as 5pm and then he needed to be cared for. Mr Perry also smoked in almost every one of the Hotel’s bars.
Ms Ianna said that orders which she would wish to place for the restaurant, when she was manager, would be scrutinised by Mr Perry and, on occasion, overruled. She said she did not have a real relationship with suppliers; James the cook would order for the kitchen and beer and wine would be ordered by the cellarman or the general manager, a man called Martin.
Dealings with Ms Peace
When Ms Peace and Mr Perry were still in a relationship, they would visit the Hotel together on Sundays. Ms Ianna described Ms Peace as a co-owner of the business, responsible for bookkeeping, accounting, and wages, and who would also assist on big days, like St Patrick’s Day. Ms Peace was the bottom line on financial arrangements although other accountants were also employed by Repeller. Ms Ianna said that she would call Ms Peace or the other Repeller staff to discuss occasional underpayments.
Dealings with Mr Yu
Ms Ianna deposed that Mr Yu was the head chef at the Hotel while she worked there. She deposed that Mr Yu generally did not leave the kitchen or the restaurant area of the Hotel and the only times she saw him and Ms Martin liaise with each other was when Ms Martin was co-ordinating functions.
Ms Ianna deposed that Mr Yu was the only person at the Hotel who was left alone by Mr Perry. She deposed that he had worked for Mr Perry for many years and was given more freedom than anyone else.
Dealings with Ms Martin
Ms Ianna deposed that she witnessed Ms Martin acting as both licensee and functions manager until the time of her termination in February 2015. Ms Martin went “above and beyond” as functions manager and licensee, working long hours most days and taking her obligations as licensee seriously. Ms Ianna deposed that she observed Ms Martin working long hours, both day and night. She deposed that Ms Martin regularly worked outside 9am to 5pm hours and also took on manager’s shifts when there were no managers available.
As functions manager Ms Martin spoke to customers, managed events, informed the kitchen when food was needed and would co-ordinate with the manager who would do the appropriate rostering.Ms Ianna recalled Ms Martin always being very involved in running events/functions on days like Melbourne Cup, St Patrick’s Day and public holidays and would be present during the day to run the events. She deposed that Ms Martin also occasionally attended the events she co-ordinated. Ms Ianna deposed that for a period, Ms Hurren was employed to assist Ms Martin with the functions part of her role. While this allowed Ms Martin to spend more time on her role as licensee, Ms Martin nevertheless continued to manage events.
Ms Ianna deposed that Ms Martin also spent a lot of time assisting Mr Perry when he drank too much. She also drove him around when he required it and ran errands for the Hotel as needed. She deposed that Ms Martin acted as a middleman between the staff and Mr Perry and put up with more than anyone else there.
Staff would go to Ms Martin with questions or concerns and she would help them. Even when she had finished for the day, she also took an interest in things, for instance when getting her dinner from the kitchen she would ask how things were going.
Ms Ianna did not recall Ms Martin doing rosters, they were done by the general manager and later Adam O’Donnell. Similarly, the only hiring which Ms Martin did was of Lucy Hurren, the assistant functions co-ordinator.
RESPONDENTS’ EVIDENCE
Brian Perry
Repeller
Mr Perry deposed that he and Ms Peace had been in a de facto relationship since 1984 and were the only shareholders, directors and secretaries of Repeller. Over the years, the company had operated various businesses including, relevantly, the Exchange Hotel in Balmain, the Harbour View Hotel in The Rocks and the Kings Cross Hotel in Kings Cross. Repeller sold the Exchange Hotel and the Kings Cross Hotel in 2008 and 2010 respectively.
Mr Perry deposed that his responsibilities as director of Repeller included:
a)the maintenance of the façade and interiors of the Hotel, which was a heritage listed building;
b)as the need arose, the recruitment of a licensee for the Hotel;
c)the vetting of candidates for senior positions at the Hotel; and
d)attending to various financial matters for the Hotel.
He deposed that the above work consumed most of his working time. He said he had “financial control, all sorts of control” and from 2010 worked full time at the Hotel.
As for Ms Peace, Mr Perry deposed that she was responsible for managing the company’s accounts. At the relevant times, Repeller employed two permanent staff members to attend to all accounting matters, including expenses incurred by the Hotel.
Harbour View Hotel
Mr Perry deposed that the Hotel was a purpose-built pub that consisted of a cellar, ground floor public bar, and pool and gaming rooms. He deposed that the first floor had two dedicated functions rooms and a residential flat that was generally occupied by the manager or licensee. The second floor had a cocktail bar and separate restaurant.
Employment structure
Mr Perry deposed that the Hotel was normally operated by four to six permanent salaried staff in the following senior positions: licensee, functions manager, hotel manager, head chef, sous chef, and sometimes another manager. The functions manager, head chef and manager(s) reported directly to the licensee, who had overall responsibility for all aspects of the Hotel, while the sous chef reported directly to the head chef.
The Hotel also employed junior staff on a casual basis. They normally included two or three assistant managers who reported to the licensee and assisted in running the Hotel, three to five bar staff, and one to three restaurant staff. Mr Perry deposed that the number of bar and restaurant staff on duty varied between three at opening times and eight during peak periods. On special event days, such as New Year’s Day and St Patrick’s Day, normally there would be approximately ten bar staff on each shift and a full restaurant staff.
Mr Perry deposed that the Hotel also employed contracted security staff on Friday and Saturday evenings and for special occasions. They reported to the licensee.
Operating hours
Mr Perry deposed that the Hotel’s approved trading hours were 10:00am to midnight, although the licensee could make an application to extend the trading hours for special occasions. He deposed that the Hotel opened for trading at 11:00am.
Mr Perry deposed that a beer-line cleaner attended the Hotel on a fortnightly basis to maintain the lines. In mid-2013, Ms Martin agreed, as licensee, to allow the cleaner access to the building at 6:30am. She would let the cleaner in and then return to her apartment. Mr Perry deposed that other than to allow access for this person, there was no other reason for any employee of the Hotel to commence work before 9:00am (other than the cellarman who sometimes arrived early and had his own keys).
Mr Perry deposed that he normally arrived at the Hotel at about 9:00am, when the Hotel’s permanent staff would also begin arriving, to take calls and to allow access for deliveries of supplies. At 10:00am the bar staff commenced their shifts, assisting with liquor deliveries and ensuring that the Hotel was clean and tidy ready for trading at 11:00am. Mr Perry deposed that the manager on duty and head chef were responsible for recording the arrival times of their respective staff.
Mr Perry deposed that the Hotel’s peak trading occurred after 5:00pm and on weekends. For this reason, managerial work, involving planning and logistics, primarily occurred between 9:00am and 5:00pm Mondays to Fridays. Mr Perry deposed that managers assumed supervisory responsibilities during peak trading hours and that most of the supervisory work was performed by the head chef and assistant managers reporting to the licensee.
Mr Perry deposed that sometimes employees continued working after the conclusion of trading hours. Work after the close of business included cleaning, tidying and doing cash counts in readiness for banking on the next business day. Mr Perry said that part of the latter procedure involved looking at the till rolls.He deposed that the manager would also record when the casual employees’ shifts ended.
Ms Martin’s employment positions
Mr Perry deposed that Ms Martin was employed as a functions/venue manager from 7 April 2008 to 31 January 2012. In cross examination he conceded that “venue manager” had never been Ms Martin’s title.
Ms Martin was employed on a permanent full-time basis and was not paid overtime or penalty rates but she was provided with free meals and meal breaks.
Mr Perry deposed that Mr Hunter’s employment ended in December 2010. At the time, Ms Martin became the most senior person at the Hotel and assisted as unofficial licensee from about December 2010 to January 2011.
Mr Perry deposed that from about 26 December 2010, commensurate with her seniority, Ms Martin was provided with free accommodation in the Hotel’s manager’s flat. He conceded that it also suited Repeller to have her living there.
On 4 January 2011 a new licensee, George Poulos, was appointed. He continued as licensee until January 2012. Ms Martin was then employed as acting general manager from 1 February 2012 to 10 April 2012 and as the most senior member of staff, she was also the acting licensee during this period.
Mr Perry deposed that Ms Martin was formally employed as licensee from 11 April 2012 to the termination of her employment on 16 February 2015 (although she continued to be the registered licensee until 13 April 2015). During this period, no other person was authorised to exercise the licensee’s powers and responsibilities.
Mr Perry deposed that the following table detailed the functions manager and licensee positions during Ms Martin’s employment at the Hotel:
Period
Functions Manager
Licensee/Acting General Manager*
April 2008 – December 2010
Ms Martin
Mr Hunter
December 2010 – 3 January 2011
Ms Martin
Ms Martin*
4 January 2011 – January 2012
Ms Martin
Mr Poulos
1 February 2012 – 10 April 2012
Ms Martin
Ms Martin*
11 April 2012 – 11 June 2013
Ms Martin
Ms Martin
12 June 2013 – 23 May 2014
Lucy Hurren
Ms Martin
24 May 2014 – 16 February 2015
Ms Martin
Ms Martin
As to the business management part of the role, Mr Poulos said his responsibilities had included:
a)financial performance;
b)recruitment of bar staff;
c)recruitment of senior staff in consultation with Mr Perry;
d)rostering;
e)wage control;
f)staff motivation and resolving staff conflicts;
g)ordering and controlling stock purchases and acquisitions;
h)upholding customer service standards;
i)engaging in daily front line customer service with bar staff;
j)ensuring the safety of all patrons, including by engaging the services of a security guard firm when appropriate;
k)ensuring that all daily bar and cleaning duties were performed; and
l)working with the functions manager, Ms Martin, to resolve functions enquiries and to ensure that there were sufficient staff available to comply with Ms Martin’s run sheets.
The evidence given by Ms Martin and Mr Perry does not suggest any persuasive reason why those duties would have been any different when Ms Martin was licensee. Although I accept that Ms Martin had received no particular training in the licensee’s role, she had worked at the Hotel for four years before becoming licensee and so had seen her predecessors’ daily performance of their duties running the business. As to her statutory obligations, the burden of her evidence was that Mr Perry had assisted her in discharging them. Moreover, in cross-examination Ms Martin agreed that, as licensee, she:
a)had been responsible for the personal supervision and management of the conduct of the business of the Hotel under the licence;
b)attended meetings of the Liquor Accord;
c)attended AHA meetings;
d)met with the local licensing sergeant and other police;
e)met with the Liquor and Gaming Authority;
f)made a point of making sure that staff complied with their legal obligations through signage, memos and notices;
g)did “a lap” of the Hotel twice a day; and
h)had taken her responsibilities seriously.
Ms Martin also confirmed that she had participated in the meetings with Mr Perry at which Hotel staff presented reports and to which reference has already been made.
Discussion
Upon appointment as licensee Ms Martin assumed various important responsibilities under the Liquor Act, the performance of which was central to the continuing operation of the Hotel’s core activity, the sale and service of alcohol. Whether or not a licensee has extensive discretion in the operation of a hotel’s business, as the respondents contend Ms Martin had, or has little discretion and operates under the supervision of the proprietor, as Ms Martin said was the case, the fact remains that the sale and service of alcohol is “a significant area of the operations” of a hotel and that the licensee is responsible for ensuring that it can continue. That responsibility alone satisfies one part of the test of “senior manager”.
Moreover, even if she was assisted by Mr Perry, Ms Martin’s job of representing the Hotel in interactions with the licensing authorities was one of considerable responsibility and was inconsistent with the duties of a “hotel manager” covered by the Award. The instruction of staff about their obligations under the Liquor Act also points to Ms Martin being responsible for those employees’ discharge of their duties, a matter of real seriousness and a level of responsibility more appurtenant to a senior managerial role than to that of a “hotel manager”.
I have also concluded that the business-related duties and responsibilities which Ms Martin assumed when she became licensee marks the job out as part of senior management. For instance, the impression given by Mr Perry and Ms Martin conducting their daytime meetings together is that they were the two most senior people in the Hotel and were managing the day-to-day operations of the business together, even if not equally. It is appropriate to consider them to have been at this time the “management team”, as Mr O’Donnell described them.
I suspect that in practice Ms Martin’s authority was somewhat circumscribed by the fact that following the sale of the Kings Cross Hotel in 2010, Mr Perry worked full time, Monday to Friday, at the Hotel and so was a constant presence as proprietor. Consequently, although I accept Mr Perry’s evidence that Mr Yu and the assistant managers reported to Ms Martin, noting that Mr Yu also said that he reported to Ms Martin when she was licensee, I also accept Ms Martin’s evidence that Mr Yu and the managers also reported to Mr Perry. I also note Mr O’Donnell’s evidence that he reported to the general manager and to Ms Martin and that the general manager reported directly to Ms Martin.
The impression I have gained of the Hotel’s operations was that, while happy to let Ms Martin run things generally, Mr Perry would also involve himself and trespass into what were ostensibly areas of Ms Martin’s responsibility.
It can be accepted that Mr Perry maintained ultimate control over the day-to-day operation of the Hotel and made decisions without reference to Ms Martin, but that does not say much about what Ms Martin’s responsibilities actually were. As noted earlier, a role retains its characteristics even if the person employed to fill it is closely managed by someone else. I accept that Ms Martin had the most senior role in the Hotel apart from the proprietor, that she worked harder than most, or even all, assumed a real degree of responsibility for the efficient operation of the Hotel and was not afraid to exercise her authority, such as when she closed the Hotel on the Labour Day holiday in 2014.
I find that during her period as licensee, Ms Martin was a “senior manager” and not covered by the Award.
By contrast, in her periods as acting licensee, she was only “acting up” and her formal role remained functions manager. As such, at those times she remained a “hotel manager” covered by the Award.
Contraventions
Given the findings I have made concerning the proper classification of the roles Ms Martin performed, consideration now turns to whether the respondents contravened the Award, the FW Act and Regulations or any of them in the relevant period of Award coverage of Ms Martin’s employment, 1 July 2010 to 10 April 2012.
I accept Ms Martin’s submission that from the amendment of the Award which was effective on 1 July 2010, her salary of $46,001.80 was less than the amount mentioned in the salary absorption provision which was then cl.20.2 and later cl.27.2 of the Award and so from that point she was entitled to the benefit of, relevantly, the following provisions of the Award:
• clause 21 - Allowances;
• clause 29 - [Ordinary hours of work (Full-time and part-time employees)];
• clause 31 - Breaks;
• clause 32 - Penalty rates;
• clause 33 - Overtime;
…
Under the Award, Ms Martin’s ordinary hours were 38 hours per week.
Overtime, penalty rates and meal breaks – 1 July 2010 to 10 April 2012
Although in her affidavit sworn 2 February 2017 Ms Martin said that she arrived every day at work at 7.30am, this is not corroborated by the reconstructed calendar which was annexed to her affidavit sworn 7 April 2016. Although not purporting to record when Ms Martin arrived at the Hotel, it did purport to record her hours of work and stated that her start times in the period 1 July 2010 to 11 April 2012, were variously 7.00am, 7.30am, 8.00am, 8.15am, 8.30am, 8.45am, 9.00am, 9:30am, 10.00am, 10:30am, 11.00am and 11.30am, the later starts generally being on weekends.
Ms Martin also sought to rely on electronic toll accounts which recorded tolls she incurred, she said, in the period when she was ferrying Mr Perry to work in the morning and home again in the evening. Accepting that they record harbour crossings it must first be observed that it is a notorious fact that for many years, tolls to cross the Sydney Harbour Bridge or travel in the Sydney Harbour Tunnel have been levied on the southward journey only. On that basis, the morning toll entries upon which Ms Martin relies should be understood to record when she was travelling towards the Hotel from the North Shore, which is where Mr Perry lived in the period when Ms Martin was solely the functions manager.
However, the toll records do not corroborate Ms Martin’s calendar entries. Particularly in respect of the period before she moved into the Hotel, they often, and to a material degree, record a harbour crossing later than the calendar states Ms Martin started work on that day. Further, in the period after Ms Martin moved into the Hotel, the records of morning trips across the harbour become thin, to the point that in some months there are no records of such trips at all, which tends to contradict Ms Martin’s claims that after she moved into the Hotel she continued to give Mr Perry a morning lift after she had first checked and reconciled the previous day’s takings early in the morning, which I have already concluded did not occur.
Because the independent toll records contradict numerous entries in the reconstructed calendar I place no weight on the latter’s purported record of the hours Ms Martin worked. Further, because the toll records provide negligible support for Ms Martin’s claims that she continued to take Mr Perry to work after she moved into the Hotel, I conclude that she did not do that and so, even if she had had to check and reconcile the previous day’s takings, which I have found was not the case, it would not have required the early start she claimed it involved.
The toll records for the period between 1 July 2010 and 26 December 2010, when Ms Martin moved into the Hotel, also contradict entries in her diary for that time. Therefore, I do not accept that the diaries accurately record her hours of work.
Further on the latter point, it should be recorded that the diary entries, which one might have thought would have been contemporaneous, had been added to during the preparation of this matter as Ms Martin allegedly remembered things she said had happened, which is an added basis to question their reliability. However, I reject the respondents’ submission that there was a degree of contrivance in Ms Martin’s conduct. In this regard it is to be kept in mind that the diaries were tendered by the respondents following their production to the Court in answer to a notice to produce and had not formed part of Ms Martin’s evidentiary case. It is also to be noted that the additions were freely conceded by Ms Martin in cross-examination, and were volunteered by her at that time, and so I do not accept that any artifice attaches to them or that entries had been created to bolster her case. I accept Ms Martin’s evidence that she had used the diaries as a “master document” for her own use and that once the notice to produce was served, which caused her to tell her solicitors what she had been doing and to be told to stop, she did stop adding entries to her diaries.
Given the shortcomings of the documents created by Ms Martin, together with her own lack of a comprehensive recollection of the details of when she worked on every day when she was the Hotel’s functions manager, which was evidenced by the way she added to her diaries as her memory was jogged or she came across particular information, I am not persuaded that she was entitled to any particular overtime, penalty rate or meal break loading payments in the relevant period. Indeed, the somewhat clearer evidence of Mr Poulos suggests that Ms Martin was not, in fact, due such payments, at least not as a matter of routine. Even Ms Martin’s calendar suggests that she worked something like eight hours a day if she took a one hour break for lunch as Mr Poulos said she did. I find that Ms Martin has not discharged her onus of proving she was entitled to particular payments which were not made.
In reaching that conclusion I have not overlooked Ms Martin’s claims to have emptied and balanced the poker machines on Tuesday mornings, given that the purported regularity of this commitment might lend some credence to Ms Martin’s claimed recollections in this regard. In para.14(d) of her affidavit of 2 February 2017, without suggesting that this occurred on any particular day or at any particular time of day, Ms Martin deposed that when she started as functions manager one of her jobs was to clear and balance the poker machines. At para.11 of her affidavit of 23 March 2017, Ms Martin deposed that she typically emptied and balanced the poker machines on Tuesday mornings, apparently in the period when she was living in the Hotel’s flat. In both of those affidavits she also referred to the more extensive morning activities of checking and reconciling the previous day’s takings to which reference has already been made.
It was not made clear, nor is it obvious, why the Hotel’s functions manager would be expected to empty the poker machines. Mr Poulos’s evidence, which relevantly concerned the first year of Ms Martin’s occupation of the Hotel’s flat, makes no mention of such a duty and indeed supports a contrary finding. Significantly, he was not challenged on his recollection of Ms Martin’s duties or work hours during that period although he did concede that it might have been Ms Martin who let the beer-line cleaner into the Hotel for his fortnightly early morning servicing of the beer-lines. Given that evidence and the evidence of the toll records, regardless of whether she performed a morning check of the previous night’s takings on a more or less daily basis, I am not persuaded that Ms Martin emptied and balanced the poker machines on Tuesday mornings when she was functions manager.
I have also not overlooked Ms Martin’s submission that an adverse inference should be drawn from the fact that Repeller did not seek to identify and present all potentially relevant records of staff rostering and of work performed by the Hotel’s employees in the relevant period. However, any inference that such records would not have assisted the respondents can be of no practical assistance to Ms Martin. Earlier I found that Ms Martin’s evidence on contested issues was to be treated with caution and I have found the calendar she relied on to support her claims regarding working hours, and the diaries which purported to record relevantly the same period, are unreliable. An inference that the Hotel’s staffing records for the period when Ms Martin was solely the functions manager would not have assisted the respondents’ case would not assist me to conclude that Ms Martin was entitled to any particular payment or payments in addition to her standard wages.
Failure to keep records
It has been found that the business was too small for its functions manager, performing the tasks she performed, to be properly classified as a senior manager. Mr Perry conceded that because Repeller had at all times believed Ms Martin to have been a senior manager, no comprehensive record of the hours she had worked had been kept. By its failure to keep such records Repeller breached s.535 of the FW Act and regs.3.33, 3.34 and 3.42 of the FW Regulations.
The fact that Ms Martin has not proved that she earned but did not receive loading, overtime or penalty rate payments for working for particular periods or at particular times is not proof that she did not do that work and earn such payments. The probability is that at some point between 1 July 2010 and 10 April 2012 she did. However, she has been unable to demonstrate any particular entitlement and Repeller’s failure to keep proper records should not be overlooked in that context.
Liability as accessories
As no breach of the Award has been proved, it is not necessary to consider the parties’ submissions on accessorial liability for breaches of an award, which canvassed the reasons for judgment in Potter v Fair Work Ombudsman [2014] FCA 187 and Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365.
Turning to the allegations of accessorial liability for Repeller’s breach of the FW Act and the FW Regulations, it must be noted that before a person can be found liable under s.550 of the FW Act for having been “knowingly concerned” in a contravention it must be proved that that person had knowledge of the essential facts constituting the contravention and was an intentional participant in it, the necessary intent being based on knowledge of the essential elements of the contravention: Yorke v Lucas (1985) 158 CLR 661 at 670; Australian Competition & Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; Rural Press Ltd v Australian Competition & Consumer Commission (2002) 118 FCR 236; Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 109 ff [334] ff, 150 [435]. The accessory need not know that the conduct constituted a contravention: ACCC v Giraffe World at 346 [186]; Rural Press v ACCC at 282, 283 [159], [160]; Heydon v NRMA at 109 [334]. Wilful blindness in relation to an element of a contravention will be treated as equivalent to knowledge of it: Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 at [135]; Giorgianni v The Queen (1985) 156 CLR 473 at 487-488.
Repeller’s contraventions are factually uncomplicated and simply involve the failure to keep particular records in relation to an employee who was entitled, if the prescribed circumstances obtained, to earn loadings on her ordinary rate of pay, overtime rates and penalty rates. I conclude that both Mr Perry and Ms Peace knew that such records were not kept in relation to Ms Martin and also that such records were not available for inspection. That being so, they were involved in Repeller’s contraventions and are taken to have committed the same contraventions.
Issue estoppel
As Ms Martin has not made out her claims to monetary compensation, it is not necessary to consider the respondents’ estoppel allegation.
CONCLUSION
There will be declarations of the contraventions which I have found have been committed.
The matter will be listed for further directions on 20 September 2019.
I certify that the preceding two hundred and eighty-nine (289) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 29 August 2019
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