Mondal v Transclean Facilities Pty Ltd and Anor (No.2)
[2020] FCCA 2944
•30 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
MONDAL v TRANSCLEAN FACILITIES PTY LTD & ANOR (No.2) [2020] FCCA 2944
Catchwords:
INDUSTRIAL LAW – Application in a case for leave to join six additional parties as respondents to proceedings under the Fair Work Act 2009 (Cth) – whether necessary – other factors relevant to exercise of discretion – application in a case dismissed – time extended for applicant to file amended statement of claim.
Legislation:
Federal Circuit Court Rules 2001 (Cth), r.11.02
Federal Court Rules 2011 (Cth), r.16.02
Fair Work Act 2009 (Cth), ss.550, 570
Cases cited:
Mondal v Transclean Facilities Pty Ltd & Anor [2020] FCCA 1334
Lukies v SZV Counselling Pty Ltd [2018] FCCA 1431
Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2018] FCCA 634
Fewin Pty Ltd v Burke [2016] FCA 503
Aon Risk Service Australia Limited v Australia National University [2009] HCA 27
Applicant: SUBRATA KUMAR MONDAL
First Respondent: TRANSCLEAN FACILITIES PTY LTD (ACN 141 630 355)
Second Respondent: SHAYAN DATTA
File Number: MLG 744 of 2019
Judgment of: Judge O'Sullivan
Hearing date: 22 October 2020 (by telephone)
Date of Last Submission: 22 October 2020
Delivered at: Melbourne (by telephone)
Delivered on: 30 October 2020 REPRESENTATION
Counsel for the Applicant: Mr Rangi
Solicitors for the Applicant: Rangi Lawyers
Counsel for the First Respondent: Mr Catlin
Solicitors for the First Respondent: Stephen Peter Byrne
Counsel for the Second Respondent: No appearance
Solicitors for the Second Respondent: Neesham White Gentle ORDERS
(1)The application in a case filed 2 July 2020 be dismissed.
(2)Any application for costs (along with written submissions of no more than 3 pages) be filed and served within 7 days and any response thereto (along with written submissions of no more than 3 pages) be filed and served 7 days thereafter.
(3)Time be extended for a further 21 days from today’s date for the applicant to comply with order (2) of the orders of 28 May 2020 (to file and serve an amended statement of claim which must be certified by Counsel).
(4)The proceedings be adjourned for further directions on 12 March 2021.
AND THE COURT NOTES
A.Any application for costs made pursuant to order (2) of these orders will be considered on the papers unless requested otherwise in submissions.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNEMLG 744 of 2019
SUBRATA KUMAR MONDAL Applicant
And
TRANSCLEAN FACILITIES PTY LTD
(ACN 141 630 355)First Respondent
SHAYAN DATTA Second Respondent
REASONS FOR JUDGMENT
Introduction
1.By application in a case filed on 2 July 2020, Subrata Kumar Mondal (“the applicant”) applied for leave to join six additional parties to proceedings (about events between 2011 and 2017) that were first commenced in March 2019.
2.The background to the proceedings appears in an earlier interlocutory judgment published as Mondal v Transclean Facilities Pty Ltd & Anor [2020] FCCA 1334 (“the earlier reasons”). Notwithstanding the orders made in the earlier reasons, and from the respondents’ point of view rather than attending to the deficiencies identified in the pleadings as they then stood, on 1 July 2020 the applicant’s solicitor e-filed a 93 page ‘amended’ statement of claim running to 359 paragraphs which named (without leave having been granted) an additional six respondents as parties to these proceedings.
3.The present application in a case is the result of that attempt.
Background
4.In the earlier reasons delivered on 28 May 2020 the litigation history was set out at paragraphs [6] to [35] and for the sake of brevity it will not be repeated. These reasons should be read in conjunction with the earlier reasons.
5.The ‘amended’ statement of claim filed on 1 July 2020 was for the reasons referred to earlier defective (and still suffered from a number of vices, some of which had been referred to in the earlier reasons, and others which were colourfully described in the existing first respondent’s submissions to which it will be necessary to return to later in these reasons).
6.The applicant’s solicitor then filed the application in a case on 2 July 2020 which the Registry made returnable before the Court at a directions hearing on 20 August 2020.
7.On that day, and to try and bring some order to these proceedings, the following orders were made:
“1. The document purporting to be an amended statement of claim filed by the applicant on 1 July 2020, without leave of the Court, be removed from the electronic Court file.
2. The applicant’s application in a case filed 2 July 2020 be listed for hearing via telephone on 22 October 2020 commencing at 10:30am.
3. On or before 4:00pm on 3 September 2020, the first respondent file and serve any response to the application in a case filed on 2 July 2020, any affidavit in support and an outline of submissions.
4. On or before 4:00pm on 17 September 2020, the second respondent file and serve any response to the application in a case filed on 2 July 2020, any affidavit in support and an outline of submission.
5. On or before 4:00pm on 1 October 2020, the applicant file and serve any submissions in reply.
6. The applicant serve the proposed further respondents referred to in the application in a case with a copy of these orders within 14 days.
7. The proposed further respondents file and serve any response, any affidavit in support and an outline of submissions to the application in case filed 2 July 2020, 7 days prior to the adjourned date.
…”
The ‘amended’ statement of claim
8.In order to put the application in a case in proper context (and given the issues raised with the applicant’s pleadings to date in the earlier reasons) it is unfortunately necessary to refer to the ‘amended’ statement of claim (“ASOC”) referred to in paragraph 7.
9.The ASOC is attached to these reasons as Appendix A and is included only so that the criticisms of it made by the first respondent can be properly understood and the applicant’s reasons as to why it is now necessary to pursue the joinder application at this stage of the proceedings are seen in context.
The application in a case
10.The orders sought in the application in a case were:
“ 1. The First Respondent be changed to Sixth Respondent;
2. The Second Respondent be changed to Seventh Respondent;3.The Applicant be permitted to join the following persons as defendants to the proceedings:
a. CHRISTOS MITZIA as First Respondent
b. GEORGE KATSAKIS as Second Respondent
c. STAVROS NIKOLAIDIS as Third Respondent
d. MARIA TSAKOPOULOS as Fourth Respondent
e. IOANNIS MORTIS as Fifth Respondent
f. GEORGE HARITOS as Eighth Respondent”
11.The application in a case filed 2 July 2020 was supported by an affidavit of Mr Rangi (“the applicant’s solicitor”) also filed on 2 July 2020.
Evidence in relation to joinder application
12.The affidavit filed in support of the application in a case by the applicant’s solicitor was, omitting formalities:
“…
2. I am the solicitor for the Applicant in these proceedings and I prepared the original Statement of Claim. Later on statement of claim prepared by Mr James Hooper of counsel was filed on 12 December 2019. While, the Applicant suggested that the directors of the six companies (now deregistered) and the director of Transclean Services Pty Ltd should be impleaded [sic] as parties, the pleading was restricted to two respondents due to financial constraints of the Applicant.
3. On 28 May 2020, the Honourable Court struck out the statement of claim dated 12 December 2019, pointing to various deficiencies including proper pleading of provisions such as section 550 of Fair Work Act 2009, failure to plead some of the very obvious contraventions etc. The Court permitted the Applicant to file amended statement of claim on or before 30 June 2020.
4. While redrafting the statement of claim, I realised that though joining new parties will complicate the proceedings, the directors of Six entities and the director of Transclean Services Pty Ltd are necessary parties and the dispute cannot be resolved completely without joining all of them in the proceedings.
5. The First Respondent, the Second Respondent, the Third Respondent, the Fourth Respondent, the Fifth Respondent and the Eighth Respondent as mentioned in the title of the amended statement of claim are the parties whom the Applicant wants to join in the proceedings.
6. As could be seen from the amended statement of claim, joining of the parties will assist the honourable court in resolving the dispute completely.
7. Hence [sic], the interest of justice, I am seeking leave to join the directors of Six Entities and the director of Transclean Services Pty Ltd to be joined as party to the proceedings.”
Submissions opposing joinder application
13.Pursuant to the orders made on 20 August 2020 the existing first respondent’s submissions (which were only) filed on 7 September 2020 (and also said to be on behalf of the proposed eighth respondent) were:
“1. The Court kindly and thoughtfully warned the Applicant to get counsel back on 15 November 2019…Mr Rangi properly (and hopefully mindful of his duty to his client and the court), did retain counsel and substantially improved his pleadings notwithstanding that they retained fatal flaws and deficiencies. Now Mr Rangi has resumed his previous methodology of pleading himself and produced a pleading monstrosity. The Applicant should not be able to exploit the privilege of endless cost-free interlocutory hearings to continually impose the burden of his incompetence on the Respondents and the Court. He now seeks leave to impose that burden on an additional six individual Respondents. He should not be allowed to do so.
2. The Applicant obtained leave to file an amended statement of claim dealing with the defects noted by the Court in [2020] FCCA 1334. The questions for the Court on this application should not simply be confined to the application for joinder, but also to whether the Applicant has complied with the Court’s implicit direction in [2020] FCCA 1334 that he cure the defects such as maintaining statute barred claims. If the Court considers joinder solely, and as a discrete and confined issue on the present application, the First Respondent foreshadows it will bring a further application to strike out of (sic) the claim on the previous grounds: Orders 13.07 and 13.10 and re-assert the false and abusive pleading the Applicant makes regarding his independent contracting status.
3. The Applicant (sic) submits that the appropriate course at this stage is to deal with the continued defects in the pleading on the current application by ordering the pleadings be fixed.
Brief interlocutory history
4. This is already set out in [2020] FCCA1334.
5.Transclean has previously pleaded that the current SOC had five categories of fatal flaw or deficiency:
a. any losses up to 12 December 2013, are statute barred;
b. the claims of accessorial liability are confused, tenuous, do not benefit from any reverse onuses or deeming provisions under the Act and should not be allowed to proceed;
c. the hours claimed to have been worked are factually impossible;
d. the Applicant was a genuine sub-contractor by reason of, inter alia, employing people himself, having multiple ABNs, being in partnership with his wife;
e. the Applicant is refusing to disclose where he worked and what he did and simply claims to be paid under an award.
6. The Applicant filed an amended statement of claim purportedly in compliance with the orders of this court made 28 May 2020.
7. The Court granted leave to the Applicant to file an amended statement of claim. It did so having noted that the Applicant in amending its claim had omitted some allegations from earlier in the proceedings2 and then made other claims that were clearly statute barred: at [12]. The statute barred claims were part of the court’s reasons for striking out the previous statement of claim: at [47, 48].
Argument
8. The new claim should not be allowed to proceed in defiance of clear Court orders made previously the Applicant cure the defects of statute barred claims. Perhaps there are no express orders to remove statute barred claims. The First Respondent submits such orders are implicit. Certainly, the Applicant is simply ignoring the Court on this question.
9. The First Respondent has previously pressed for the pleading to be struck out on the basis that it is frivolous or vexatious or otherwise an abuse of the Court. Insofar as it is still an abuse of the Court the Applicant seeks to double down by burdening another six individuals with the claim. The burden on those individuals is a proper consideration for the court in exercising its discretion.10. The attempted filing was one day out of time. The First Respondent makes no point about that. However, in belatedly making an application to join 6 new Respondents, the Applicant again adds months to the litigation process. The First Respondent refers to the conception of prejudice from delay refined by Aon’s case.
[98] ... what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
[11] Thus, while it is true that the power to amend may be used to avoid the multiplicity of proceedings, the exercise of that power requires consideration of other matters. Such considerations include the nature of the amendment sought, the degree of delay that it will entail and the other prejudice that might flow to the other parties, the court and other litigants.11. Also, aptly:
When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty.
12. The Applicant has continued to maintain statute barred claims. The reasons why he should not be allowed to do so have been stated previously and do not need to be repeated. However, it must also be noted that in so far as they now require individuals to engage expensive legal representation and undergo the stress of litigation, the court should not regard them automatically as necessary incidents of the litigation.
Principles determining joinder13. Rule 11 of the Federal Circuit Court rules is permissive requiring only that the court be satisfied that the joinder be necessary for the complete and final determination of all matters in dispute: 11.01. Further parties can be joined without their consent: 11.03.
14. Transclean submits that such rules are naturally conditioned by the requirement that they be applied in accordance with the objects set out in 1.04 of the rules that any litigation be prosecuted in a manner that avoids undue delay, expense and technicality.
15. In that regard it is notable that the Applicant alleges that the wrong committed by the First Respondent commenced in 2011. He sat on his rights until March 2019 when he finally filed this claim.
16. The prejudice to the new Respondents is easily conceived. Statutory requirements to preserve records only go back six years. Their memories, notes and other information which might assist them in their defence is also likely to diminish substantially if not disappear.
17. It would appear that the court has pre-indicated a requirement of at least notice to the new proposed Respondents by requiring that the application for joinder be served on them. Transclean would seek that that previous order be complied with.
The stated reasons for delay in the joinder are nonsense18. The affidavit of 1 July 2020 filed in support of the application contains the statement that the directors of the six companies were not pleaded earlier “due to financial constraints”: [2]. Mr Rangi also says that at the point of re-drafting (which re-draft?), he realised that adding six new Respondents would “complicate the proceedings”: [4]. Both assertions mask what has obviously happened, which is incompetence in the various stages of
pleading5. The Applicant should have made a forensic decision early that he was obliged by his client’s failure to act promptly on the alleged breaches of the Act to not allow complex and ageing heads of claim accumulate because it would make any subsequent proceeding onerously difficult and complex.19. The First Respondent submits that in so far as the court is to have regard to some particular reason in exercising a discretion to indulge the Applicant, no real reason has been given.
What will this proceeding be like ?20. Currently there are three sets of lawyers. The Applicant seems to propose a proceeding with as many as six more.”
[emphasis added]
14.Because of the tone of some of the submissions set out in the previous paragraph my associate was instructed to email all parties to advise that unless a response to the application in a case was filed by the existing respondents (consistent with the orders of 20 August 2020) the hearing on 22 October 2020 would be limited to the issue of whether there should be an order for joinder. In response to that email, and on 8 September 2020, the solicitor for the existing second respondent sought to withdraw (and explicitly disclaimed reliance on) the bolded and underlined section of those submissions set out above.
15.The existing second respondent did not file submissions as such but advised the Court on 18 September 2020 that he opposed leave being granted for the same reasons set out in the existing first (and proposed eighth) respondents’ submissions referred to above.
16.By the date of the directions hearing on 20 August 2020 the applicant had only served four of the proposed six additional parties with the ASOC. Save for Mr Haritos who was represented by solicitors for the existing first respondent, only Mr Katsakis (of those who) had notice of the applicant’s proposal to join him had sent email correspondence to the Court on 18 August 2020 objecting to being joined as a respondent.
17.It was because of the deficiency in the applicant bringing the application in a case to the attention of the proposed (additional) respondents, so that they would have the opportunity to file any submissions on the issue that order 6 of the orders referred to in paragraph 7 above was made. As will become clear presently, notwithstanding that order there is no evidence that the applicant complied with that order either.
Submissions in support of joinder application
18.In accordance with the orders of 20 August 2020, on 30 September 2020 the applicant filed the following submissions in response to the submissions filed by the existing first and proposed eighth respondent:
“1. The Applicant lodged an Application in a Case on 1 July 2020, seeking leave to join Christos Mitzia, George Katsakis, Stavros Nikolaidis, Maria Tsakopoulos, Ioannis Mortis and George Haritosh as First, Second, Third, Fourth, Fifth and Eighth Respondent respectively to these proceedings.
2. Further, the Applicant seeks leave to redesignate the existing Respondents as Sixth and Seventh Respondent.3. The Applicant supported the said application with an affidavit which referred to and relied on a document named Amended Statement of Claim dated 29 June 2020 (ASOC) (has now been removed from the court records as it was filed prior to grant of leave). The stated ASOC was lodged on 30 June 2020 at 9:39 AM, with the Registry as ‘draft’ along with a letter to the Registrar seeking leave pursuant to Rule 7.01 of the Federal Circuit Court Rules 2001 (FCC Rules). A copy of the said document with seal of registry was served on the Respondents informing them about the delay and about the reasons for the delay.
Circumstances of filing of application without seeking leave
4. While the Applicant was waiting for a response from the Registrar, despite information about reasons for the delay, the solicitor for the Second Respondent sent an email on 1 July 2020 in terms The 30th June 2020 was the absolute deadline. You are clearly not entitled to an extension of time.
5. The Applicant acknowledges the mistake of filing a document without prior leave of the Court and sincerely apologise to the Court for it, but, states that it was filed in good faith after his attempts stated in paragraph 3 above failed. It was an attempt to comply with the timeline of the Orders of the Court.
Submissions on behalf of existing Respondents and on behalf of proposed Eighth Respondent
6. Pursuant to Order 3 of orders dated 20 August 2020, the existing First Respondent filed submissions on 7 September 2020 (instead of 3 September 2020) and the Second Respondent adopted them (the Respondents Submissions). The Respondents submissions:a. repeats many of the issues already considered by the honourable Court on previous occasions;
b. points to the purported defects in the proposed ASOC including in relation to ‘statute barred claim’ and ‘sham contracting claim’;
c. complains about the multiplicity of interlocutory steps;
d. threatens to lodge another strike out application, in particular relating to the issue of ‘sham contracting claim’;e. objects to amendment of the pleadings at this stage of proceedings;
f. objects to joinder of new respondents in the proceedings; and
g. seeks orders that the Applicant be ordered to fix his pleadings.
7. The Applicant endeavours to address the issues in order of their importance for this stage of proceedings.
JOINDER OF ADDITIONAL RESPONDENTS
8. The Affidavit affirmed on 1 July 2020 supporting the Application in a Case was relying on the contents of the ASOC. The ASOC in addition to particularising the cause of action against the proposed Respondents, also:a. addressed the issues raised by Transclean in its application for summary dismissal;
b. set out the merits of the claim demonstrating not only a prime facie case, but a sufficiently arguable case against the proposed Respondents; and
c. set out the justification for joinder of the proposed Respondents as necessary parties on the basis of claim sought against the proposed Respondents arising out of the same transactions or event or series of events that gave rise to the claim for relief against the existing Respondents.
9. However, the ASOC is no more on the Court file, hence, the Applicant seeks to be excused for reproducing some parts from the ASOC.
10. The Applicant agrees with the Respondents submissions that rules 11.01 & 11.02 of the FCC Rules deals with the issue of joinder of parties.
11. In Lewin, the Full Court of the Family Court interpreted the FCC Rules concerning joinder at [15] per Ainslie-Wallace J, ….. any person who is “necessary” to the “complete and final determination” of all matters in dispute in a proceeding must be included in the proceedings. A plain reading of the FCC Rules makes it clear that the term “included” there used means joined as a party.
12. Referring to rules 11.01 & 11.02 of FCC Rules, Justice Warnick sitting as full court of Family Court in Wayne observed at [19] … if a cause of action recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute”…..
13. The Applicant submits that pursuant to section 550 of FW Act, all the proposed Respondents have been accessorily liable for all the alleged contraventions. While discussing relationship of section 550 with the joinder issue, Judge Lucev in Lukies3 at [16] held that ….section 550 of the FW Act does not say who should be a party to an action, or who should be made party to an action, and it certainly does not mandate that every person alleged to be accessorily liable at any stage of proceedings be made party to the proceedings. If otherwise appropriate, a person who is arguably accessorily liable for conduct ought to be joined as a party.
14. The Applicant submits that he would have joined the six entities as the Respondents from the beginning, but, faced difficulty as they were deregistered by the proposed first five Respondents. Thus, it was not appropriate to join them as parties. The Applicant acknowledges that he cannot pursue action against those entities due to their deregistration status and hence will not claim any relief against them. However, as discussed below, the contraventions against those entities could still be established and the proposed accessorial claim against the proposed Respondents is likely to succeed.
Role of sections 550 & 793 of FW Act and effect of deregistration of companies15. The Applicant alleges that the proposed first five Respondents were directors and secretaries of the companies (now deregistered) and were responsible for the overall direction, management and supervision of those companies in relation to their provision of services, engagement of the Applicant, negotiation of commercial contracts, and the setting and adjusting of its pay rates and conditions of employment. Further, they were responsible for making decisions regarding operations of those companies, including decisions regarding the employment of the Applicant and Applicant’s entitlement. Additionally, they were responsible for ensuring that those companies complied with their legal obligations under the FWAct.
16. In relation to Transclean, the Applicant alleges that Transclean provided services to Metro using labor provided by the de-registered companies. The employees of Transclean and in particular proposed First, Fourth, Seventh and Eighth Respondent exercised management and supervisory control over performance of the work. At all relevant time, the Applicant was subject to direction, supervision and management of Transclean in relation to where, when and how he performed his duties including start and finish times.
17. The Applicant asserts that the conduct of Transclean in relation to all employees including the Applicant was engaged in on behalf of, at the direction of or with consent or agreement of the de-registered companies or their directors (the proposed Respondents). Further, all conduct engaged in by the proposed Respondents and by Transclean, which was engaged in on behalf of deregistered companies was within the scope of the actual or apparent authority of the proposed Respondents and of Transclean.
18. The Applicant submits that in view of his assertions in paragraphs 15 to 17 above (which are further elaborated in ASOC) and subsection 793(1)(a) of the FW Act, the conduct of the proposed Respondents and of Transclean is taken to be conduct engaged in by the de-registered companies. Further, pursuant to subsection 793(2) of the FW Act, when engaging in alleged conduct, the state of mind (including the knowledge) of the proposed Respondents and of Transclean, is taken to be the state of mind of the de-registered companies.
19. The Applicant submits that as the conduct of the proposed Respondents and of Transclean is taken to be conduct of the deregistered companies, the contraventions against the deregistered companies could be established by assessing the conduct of the proposed Respondents and conduct of Transclean. In these circumstances, the deregistration status of the companies and companies being not party to the proceedings, does not affect the process of establishing contraventions against the companies. See Australian Building & Construction where pursuant to operation of sections 793 & 550 together, Flick J made declaration 5 on the basis of declaration 2 of holding the employer liable for conduct of its employees. Once contraventions against the deregistered companies is established, there is no hurdle in establishing the accessorial liabilities of the proposed and existing Respondents.
20. Further, there are plenty of cases where by combined operation of sections 793 and 550 of the FW Act, the courts found the officer, employee or agent accessorily liable for contraventions despite the corporation itself being deregistered or where corporation was allowed to be removed from the proceedings due to it’s deregistration status. See Fair Work Ombudsman v First Group of Companies Pty Ltd (deregistered) & Ors. [2018] FCCA 1228, Fair Work Ombudsman v Han Investment Pty Ltd [2017] FCA 623 in proceedings number WAD 248 of 2016, Harper v TINGMAK PTY LTD & Ors [2020] FCCA 626.
Liability arising out of proposed First and Fourth Respondent being employees and proposed Eighth Respondent being director of Transclean21. The proposed First and Fourth Respondents in addition to being directors of the deregistered companies, were employees of Transclean. Pursuant to section 793, their conduct is deemed to be conduct of Transclean, thereby making Transclean twice (in both primary and accessorial capacities) liable for the same the contraventions. See Australian Building & Construction Commission v CFMEU [2018] FCA 42 at [55] in particular reference to Hamilton v Whitehead (1988) 166 CLR 121.
ASOC addresses concerns of Transclean raised during the course of its summary dismissal application22. The Applicant submits that allowing the joinder of proposed Respondents and allowing the corrected ASOC to be filed, will assist in addressing the issues including the following:
a. One of the main grounds for the strike out and summary dismissal application by Transclean was that the first five of the proposed Respondents should have been the parties to the proceedings5.
b. Transclean submitted that accessorial claim was confused and tenuous6 and further submitted that the relationship was not sufficient to establish involvement of Applicant with six entities7.
c. Another major issue raised by Transclean was creating doubts about the working hours8 claimed to have been worked by the Applicant. The Applicant submits that proposed Respondents paid for those hours; hence, they will be in better position to answer those concerns.
Response to submissions concerning joinder issues
23. Paragraphs 13 to 19 of submissions (filed on behalf of Transclean and proposed Eighth Respondent and adopted by the existing Second Respondent) deals with the issue of joinder and seems to makes two substantive contentions:
a. the proposed Respondents would be disadvantaged due to passage of time; and
b. that the proposed Respondents should have been served with notice. Passage of time
24. The Applicant submits that he has restricted and calculated the relief going 6 years prior from date of filing of his application.
25. The Applicant further submits that the Eighth Respondent being officer of the existing First Respondent has been aware of the proceedings from the very beginning, hence, he is not likely to suffer any prejudice due to the purported delay.
Notice to the proposed Respondents26. On the issue of notice, the Applicant submits that:
a. he served the notice on the proposed Eighth Respondent on 7 July 2020, but did not file affidavit of service as notice of address was filed on his behalf;
b. the affidavits of service filed by the Applicant affirms that documents were served on the proposed Second, Fourth and Fifth Respondents in accordance with rules; and
c. the proposed First Respondent had a fake address in the past, and no one answered the door at the last known addresses of proposed First and Third Respondents.
27. Pursuant to Court Orders, despite strict COVID restrictions, the Applicant had again tried to serve all the proposed Respondents by delivering copies of Orders in the letter boxes of their properties.
28. The Applicant refers to paragraphs 42 & 43 of Lukies9 where the court referred to the observations of Full Court of Family Court in Lewin10 that.. it was not necessary that notice be given of any amended application to join a party to proceedings under the FCC rules.
Response to other issues raised in the submissions:
Non engagement of Counsel by the Applicant29. Paragraph 1 of the submissions is disparaging and indicate arrogance, which does not assist the honourable court in deciding of the issue at hand. Additionally, it is based on misconceived notion that a litigant cannot pursue his claim unless he has financial capacity to pay fees of a counsel. It wrongly assumes that a solicitor is duty bound to engage a counsel irrespective of the instructions of his client. The Applicant respectfully submits that involvement of his solicitor on his behalf will assist the honourable court where the Applicant would be left self- represented if the solicitor withdraws from the proceedings.
Issues with proposed ASOC30. The Applicant acknowledges that there were spelling and grammatical errors in the proposed ASOC and apologise for that. If competency is to be assessed from such errors, then the counsel for the Transclean ought to look at his own submission. Further, the Transclean failed to point to any specific defects in the proposed ASOC.
31. The size of the proposed ASOC has increased as it tries to address the concerns raised by Transclean in paragraph 3 of its submissions dated 30 April 2020. The proposed ASOC provides further particulars and greater specificity including elaborating on the relationship of various entities, accessorial liabilities, application of section 793, independent contractor claim, details of each contravention separately including quantum of underpayments. Due to proposed joinder of Six additional respondents, the pleadings have multiplied in size, but, close scrutiny would reveal that there is high degree of overlap and duplicity between the factual and legal issues.
Objection regarding purported statue bar claim32. The objection is without basis as the relief sought in the proposed ASOC dates back to 6 six years prior to filing of the claim. The Applicant in reply to summary judgement expressly stated that he would not insist on any claim falling outside the statutory period and justified the contextual importance of such pleadings. Objection regarding pleading sham contracting (independent contractor) claim
33. The basis for the objection is ill-conceived as the honourable Court did not finalise the issue. Furthermore, the recent judgement of the Full Court in Jemsek shows that the issues raised by Transclean seeking summary judgement on this issue were superficial and do not go far enough. The full court after accepting that the person was conducting his own business, found that it was not inconsistent with that person being an employee. It is hard to conceive how merely holding ABN ruled out a person from being an employee. See also ACE Insurance v Trifunovski [2013] FCA 3.
Complaint about multiplicity of interlocutory proceedings34. The Applicant states that it was Transclean who filed the Application in a Case seeking summary dismissal of the proceedings, hence, blaming the Applicant for multiplicity has no basis.
Complaint about late filing of proposed ASOC and relevancy of Aon Risk Case35. As explained in paragraph 3 hereof, the Applicant lodged the proposed ASOC on morning on 30 June 2020 and informed Transclean about the problem. Transclean still chose to raise the issue though it’s own 6 pages submissions were late by 4 days. The Applicant submits that Aon Risk deals with amendment of pleadings where due to amendments, the timetable including trial date was to be vacated. Here, the proceedings are being amended pursuant to the Court order and substantial procedural steps are yet to be taken by the parties.
What will be proceedings like?36. The motive of raising this issue is not clear, but Transclean submissions seem to suggest that a proceeding with Eight Respondents (where at least two are represented by the same lawyer) is unusual feature of the proceedings. Multiplicity of Respondents is direct consequence of business model adopted by Transclean, hence, it ought not raise this issue. Further, it seems that Transclean is now suggesting that the Applicant should divide his claim and file separate claims against each of the proposed Respondents, though, Transclean itself insisted on joining the proposed Respondents.
CONCLUSION37. Transclean boasts of being engaged in ‘enormous task where it employed employees in excess of 700 at any given time and the first Five proposed Respondents billed in excess of $900,000 per fortnight.
38. In the circumstances where Transclean continue to adopt the same business model of engaging purported sub-contractor entities which are deregistered at regular intervals, there is significant public interest in deterring employers from engaging in conduct of the nature alleged in the ASOC. Withholding relief to the Applicant would reward companies for carrying on business in a manner where protections under FW Act are undermined.
39. The Applicant submits that there are serious questions to be tried as to whether the conduct of one or other of the proposed respondents contravened the relevant provisions of FW Act and Regulations. This is not a dispute which only affects the parties, the ASOC raises matters of public importance with implications beyond parties.
40. The Applicant submits that in the circumstances submitted above, it is just and proper that the Applicant be allowed to join the proposed Respondents to the proceedings. Any detriment to the existing or the proposed Respondents is outweighed by the public interest involved in protecting the rights of vulnerable employees.
41. Further, there is no basis for concluding that the Applicant is not acting in good faith in seeking the joinder of the proposed Respondents. The Applicant requests the Court to use its broad discretion and allow the relief sought.
Additional relief42. Pursuant to Rule 6.04 of FCC Rules, for further service of the documents filed in these proceedings on the proposed Respondent, the Applicant be permitted to serve the proposed Respondents by post and email and personal service be dispensed with.
Further Assurance by the Applicant43. If leave to join the proposed Respondents is granted to the Applicant, within 14 days, he will file and serve a corrected version of the ASOC.”
Further submissions opposing joinder
19.The applicant had been directed to serve the proposed additional respondents with the orders of 20 August 2020. Notwithstanding that order, the applicant provided no evidence that he had complied.
20.However, there was an affidavit filed prior to the hearing on 22 October 2020 by one of the proposed additional respondents. Whilst his position had been referred to at paragraph 16 above, the affidavit of Mr Katsakis (the proposed (rather than existing) second respondent) was:
“…4. The Company that I was a Director of Platform Cleaning Services Pty Ltd, appointed a Liquidator on the 18th March, 2016 and was placed into Voluntary Liquidation due to the company being unable to meet its expenses.
5. The affairs of the company were managed by the Liquidator Mr Raymond Sutcliffe Chartered Accountant, from the 18th March, 2016, after this date I had no active involvement in the company from this time onwards, with the exception of assisting the Liquidator with any request for information from time to time.
6. All accounting and company records were handed over to the Liquidator at the time of his appointment. I do not have in my possession any records of any description relating to the company anymore.
7. The application before the court to join me as a second respondent in my opinion has no proper basis, I say this because Platform Cleaning Services Pty Ltd had no employees on its books, all work was carried out by sub-contractors. The company had been set up this way from its inception and the business model adopted was based on having no employees, only contractors from the beginning.
8. The Company was placed into voluntary Liquidation as it was no longer viable financially and due to continued losses.
9. While I was in control of the company and subsequently when the company was placed into liquidation, I cannot ever recall being approached by the applicant to discuss the proposition that the applicant was in reality not a contractor and the alternative proposition, that the applicant was really an employee.
10. All my obligations as a Director of Platform Cleaning Services Pty Ltd officially ceased as of 18 July 2017, when the company was wound up and deregistered on or about this time.
11. While I was in control of the company, I fulfilled my obligations and duties as a Director to the best of my ability.
12. The applicant now seeks to join me and in total six additional respondents including myself, I cannot see how this could possibly assist the court, particularly as my involvement with the company ceased over four years ago, as stated and I repeat for the sake of clarity, I no longer have any records or documents whatsoever relating to the company as it has been wound up and any claim the applicant believed they may have had could have been pursued whilst the applicant was engaged as a contractor by the company or at the time the company was placed in liquidation from early in 2016.
13. In my opinion, the application before the court has all the signs that the applicant is engaging in a fishing exercise as there is a total lack of factual evidence to support joining me as second respondent in the proposed statement of claim.
14. The relationship between Platform Cleaning Services Pty Ltd and the applicant ceased when the company was deregistered and the liquidation of the company was completed in July, 2017. It was open to the applicant during their period as a contractor to Platform Cleaning Services Pty Ltd, to raise any dispute with the company then and they also could have lodged a claim with the Liquidator, but to the best of my knowledge chose not to do so.
15. For the above reasons, I object to being made a party to this proceeding, to join me would be highly prejudicial and in equitable to me. Also due to the length of time that has elapsed and based on my recent enquiries that all company records have now been destroyed. I therefore request with all due respect to the court, that the application to join me as a second respondent be dismissed by this honourable court.”
Hearing of application in a case
21.At the hearing of the application in a case on 22 October 2020 (which took place electronically due to COVID-19) Mr Rangi, Solicitor, appeared on behalf of the applicant and Mr Catlin of Counsel appeared on behalf of the (existing) first (and proposed eighth) respondent.
22.The solicitor for the (existing) second respondent, who had suffered a personal bereavement sought to be excused. Given each of the parties had filed written submissions no one suggested the matter should not proceed in his absence.
23.The applicant’s solicitor told the Court that he had not filed evidence of compliance with order 6 of the orders of 20 August 2020 because of his understanding of order 8 of those orders.
24.When pressed to provide details as to whether there had been compliance with order 6 of those orders the applicant’s solicitor referred to paragraphs [26]-[27] of the submissions extracted at paragraph [18] above. However, the applicant’s solicitor did concede, to the extent those were said to evidence compliance with the orders there had not been sufficient service (and therefore compliance).
25.Otherwise, those who appeared at the hearing on 22 October 2020 were content for the Court to take into account the affidavit referred to at paragraph [20] above and told the Court that they did not have anything to add beyond relying on the written submissions set out above. At the end of the hearing that day the decision on the application in a case was reserved.
26.Given that it is now necessary to turn to consider the application in a case in light of the material set out above.
Consideration
27.Rule 11.01 and 11.02 of the Federal Circuit Court Rules 2001 (“FCC Rules”) expressly deal with the issue of joinder (or inclusion) of parties to proceedings in this Court.
28.Those provisions (and the interpretation of them in appellate decisions of superior courts at that time) were set out in Lukies v SZV Counselling Pty Ltd [2018] FCCA 1431. That decision, which was referred to in the applicant’s submissions, deals at paragraphs [28] to [56] with those authorities and the approach to the relevant FCC Rules which also for the sake of brevity won’t be rehearsed but have been taken into account.
29.Issues germane to the determination of this application were also considered in Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2018] FCCA 634 (see also Fewin Pty Ltd v Burke [2016] FCA 503 at [40] to [48] on the approach to the same issue under the Federal Court Rules 2011).
30.In this matter the applicant requires leave of the Court to join the proposed additional parties as the application has been made (some considerable time) after the first court date (see Rule 11.02(2) FCC Rules). Whilst the FCC Rules are silent on the factors to be taken into account a relevant issue in considering whether to grant leave to the applicant to include the proposed additional parties is whether he has a sufficiently arguable case to justify joinder.
31.Moreover, whether or not to grant the leave sought in this case is a matter within the discretion of the Court having regard to all the circumstances of the case.
32.Putting to one side that there has been no explanation for the proposed change in the order of the proposed respondents in the ASOC the stated reason for joining the additional parties appears to be that it is alleged they were officers of a number of corporate entities (most now de-registered) which were somehow involved with the applicant and existing respondents. The high point of the applicant’s case for joinder appears to be in submissions filed on 30 September 2020 where it was said the additional parties are “necessary” as the claim against them as “arising out of the same transactions or events or series of events that gave rise to the claim for relief against the existing respondents.”[1]
[1] see paragraph [8] of applicant’s submissions file 30 September 2020.
33.Tellingly, it is implicitly acknowledged in those submissions that the applicant could have joined the additional parties earlier[2] where it is acknowledged that the applicant (and his solicitor) were aware those corporate entities were de-registered some time ago.[3]
[2] Ibid. see paragraph [14].
[3] Ibid.
34.The earlier reasons pointed out at least some of the deficiencies in the applicant’s pleadings. Given it appears that the applicant now acknowledges that he (and his solicitor) were aware that many of the corporate entities referred to were no longer in existence when the earlier pleadings were filed it is puzzling that he has provided no proper explanation for why the additional parties were not named at that time. This is also the case in relation to the proposed eighth respondent which given his position should have posed no barrier to him being named as a party previously.
35.There was no proper explanation as to what had changed since the pleadings (referred to in the earlier reasons) were filed such that it is now required that the named individuals be added as respondents other than an oblique and undeveloped reference to “financial constraints”[4] .
[4] see affidavit referred to in paragraph [12]
36.The ASOC is arguably deficient for the reasons referred to in the first respondent’s submissions. The ASOC is hardly a model pleading and is replete with typographical errors including for example the incorrect spelling of the suburb Bulleen as “Buleen”.[5] Furthermore, the ASOC still maintains claims which would be statute barred.[6]
[5] see also for example paras [1(b)], [2(c)],[ 2(j)], [26] (missing ‘the’), [33] (‘time’ not times), [46(e)] (f..?) etc
[6] see paragraphs [2] to [7], [74], [342], [351] for example.
37.The ASOC, at various points, alleges that the applicant was an employee[7] but then also goes on to say (in support of allegations of sham contracting) the applicant provided an ABN.[8] The ASOC appears to suggest that many of the proposed additional parties were (presumably at the same time) acting on behalf of the de-registered companies and for the existing first respondent.[9]
[7] see for example para [2(d)]
[8] see for example para [67] and following
[9] see for example para [20] and [34] to [37]
38.The ASOC alleges that these people (as officers of the de-registered companies) when acting in that capacity were also taken to be engaging in conduct on behalf of the (existing) first respondent as they were also employees of the first respondent.[10]
[10] See for e.g. para 39
39.For the purpose of these reasons it is not necessary to analyse the ASOC in further detail. Rather the matters set out above (which are not intended to be an exhaustive analysis of the ASOC) are intended to illustrate why on its face (and by virtue of its length) the ASOC is almost incognisable.
40.Aside from the option of pursing (if leave is granted) a claim for a breach of s.550 of the FW Act against the additional parties there is no other reason offered for why they are necessary. It seems that the applicant (in submissions at least) conflates necessary (for the purposes of the joinder issue) with what would be needed by way of evidence to forensically make out his allegations against the existing first respondent.
41.Given this it is difficult to see how the presence of the proposed additional parties (leaving to one side the proposed eighth respondent), as parties to the existing proceedings, is necessary to ensure that the issues in those (existing) proceedings are able to be heard and finally determined in the sense referred to in the above authorities.
42.More generally and for the following reasons the circumstances of this matter considered as a whole raise real questions as to whether there should now (and at this stage of the proceedings) be an order joining the additional parties.
43.In Aon Risk Service Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (“Aon”) which was referred to in the existing first respondent’s submissions it was said at 189:
“Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes… because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation.”
44.It is for this reason that all courts in the modern era, including this one, have adopted rigorous principles of case management to expedite litigation and streamline processes. In Aon it was also said at 214-215:
“It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case…. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates.
…Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.”
45.Aon creates a number of considerations, which are to be applied in assessing whether an application for amendment should be granted. This is what the applicant is asking for and it will (if granted) result in further elongating the interlocutory stage of these proceedings because the additional parties will need to file material. The considerations include the following:
a)whether there has been undue delay in making the application;
b)the extent to which there will be wasted public resources in granting the application;
c)whether the inefficiency, so occasioned, will require the revisiting of otherwise completed interlocutory processes;
d)will a trial need to be adjourned;
e)is there a satisfactory reason for the delay in applying;
f)whether the point to be raised by the amendment would be raised in any event at trial;
g)the likelihood of strain and uncertainty being imposed on the litigants concerned;
h)whether any further delay would undermine confidence in the administration of civil justice generally;
i)any other prejudice likely to be suffered by the other party; and
j)the additional costs likely to be incurred.
46.A preponderance of the above factors tells against the orders sought by the applicant. To that end, in this matter there has been considerable unexplained delay (which is not answered simply by saying the former corporate entities are no longer in operation or that there were earlier “financial constraints”).
47.The existing respondents argue that the ASOC is an attempt to bring a different case to that previously pleaded. A cursory examination of the ASOC (and the existing pleadings which were annexed to the earlier reasons) supports this contention. Given this point it is important to note that the application for joinder has been made after a number of unsuccessful attempts by the applicant to properly articulate his case.
48.Then there is also the issue of prejudice to the additional parties and the delay (and prejudice) to the existing respondents caused by this application and any order for joinder if it was made. Finally, it is noteworthy that the applicant has sought to make a virtue out of the lack of compliance with the orders made 28 May 2020. It is clear (and with respect regrettable) that Counsel was not engaged to prepare the ASOC. Henceforth (and because of the matters set out above) it will be necessary for the applicant to have any amended pleadings certified by Counsel.
49.Whether because of this last mentioned omission by the applicant (and his solicitor) or otherwise for the reasons set out above it has not been demonstrated why an order joining those additional parties is necessary at this stage of the proceedings to determine the matter against the existing respondents.
Conclusion
50.Therefore, and even if the applicant had a sufficiently arguable case against the proposed additional parties the Court is drawn to the conclusion in light of the factors relevant to the exercise of discretion (and given the lamentable history of this matter) that leave to do so should be refused.
51.The timing of the application, the lack of a proper explanation by either the applicant or his solicitor, the prejudice to the other parties involved and case management considerations all tell against it.
52.The defects in the applicant’s pleadings have arguably been compounded by the failure to file an amended statement of claim in conformity with the earlier reasons. Instead the applicant sought to file the ASOC naming the additional parties without leave. The document just referred to not only fails to comply with a majority of the provisions of r.16.02 of the Federal Court Rules 2011, was not prepared by Counsel but suffers from the problems referred to above and is arguably prolix.
53.Given the history of these proceedings set out in the earlier reasons, the lack of compliance by the applicant with previous orders, along with the lack of a satisfactory and proper explanation for why the joinder application has now been made, leave should be refused. Having regard to all the circumstances the applicant has not persuaded the Court that leave to join the additional parties should be granted. The application is refused and the application in a case dismissed.
54.As set out in the earlier reasons a case is possibly open to the applicant against the existing respondents. I accept the submission of the first respondent that the Court should insist the orders made in the earlier reasons be complied with. Therefore time will be extended for a further 21 days from the date of these reasons for the applicant to file an amended statement of claim (in conformity with the earlier reasons) but any such document should be certified by Counsel.
55.Finally given the conclusions arrived at in relation to the application in a case, and given the provisions of s.570 of the FW Act, any application for costs should be filed and served within 7 days. The applicant will have 7 days thereafter to file and serve any submissions in reply.
56.To minimise any further costs any application for costs will be determined on the papers unless requested otherwise in those submissions.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 30 October 2020
APPENDIX A
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
File number: MLG744/2019
REGISTRY: MELBOURNE
FAIR WORK DIVISION
SUBRATA KUMAR MONDAL
ApplicantCHRISTOS MITZIA
First RespondentGEORGE KATSAKIS
Second RespondentSTAVROS NIKOLAIDIS
Third RespondentMARIA TSAKOPOULOS
Fourth RespondentIOANNIS MORTIS
Fifth RespondentTRANSCLEAN FACILITIES PTY LTD (ABN 24 141 630 355)
Sixth RespondentSHAYAN DATTA
Seventh RespondentGEORGE HARITOS
Eighth RespondentAmended Statement of Claim
(Filed pursuant to Order 2 of Orders delivered on 28 May 2020)
Date of document:29June 2020
Filed on behalf of the Applicant Law Firm: Rangi Lawyers
Email: [email protected]Solicitors Code: CR 110822 Telephone: 0469 414 110
Ref: 607/19/MondalTHE APPLICANT
1.The Applicant is and was at all material to this proceeding:
a)a natural person capable of suing;
b)was employed by the six entities CF & Royal, Platform, SNG69, MMGT and MML (now deregistered) where first five respondents were their respective directors; and c. was also employed by the Sixth Respondent from 1 April 2016 to 30 November 2017 in the position of a supervisor to supervise the employees of MMGT and MML.
c)was also employed by the Sixth Respondent from 1 April 2016 to 30 November 2017 in the position of a supervisor to supervise the employees of MMGT and MML.
THE FIRST RESPONDENT
2.The First Respondent (Christos Mitzia) was at all material times:
a)a natural person capable of being sued;
b)a director and sole shareholder of CF Services Pty Ltd (unregistered) (CF) from 4 October 2010 to 14 March 2014 which had an oral contract with Sixth Respondent for provision of Cleaning Services to Sixth Respondent;
c)had a residential address at all relevant time being 5A Kampman Street, Buleen VIC 3105;
Dated 29 June 2020
ANNEXURE 1 - MINIMUM HOURLY RATES OF PAY
Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Employer Number of hours worked Total entitlement as
oer Award
Amount paid Underpayme nts Total for employer Applicable rates/hour Royal 17/3/13 1170.00 20638.80 1912.3. 00 1515.80 $17.05 L-1 to 30/6/13 17.64 L-2 Royal 4385.00 79324.65 72352.00 6972.65 8488.45 $17.49 L-1 1/7/13 to 18.09 L-2 30/4/14 Platform 400.00 7236.00 6600.00 636.00 $17.49 L-1 1/5/14 to 18.09 L-2 30/6/14 Platform 5376.00 100208.64 88704.00 11504.64 $18.011- 1 117/14 18.64 L-2 to30/6/15 Platform 2730.00 52143.00 45045.00 7098.00 19238.64 $18.46L-1 117/15 to 19.10 L-2 SNG69 2190.00 41829.00 37235.00 4594.00 4594.00 $18.46L-1 1/1/16to $19.10 L-2 MMGT 279.00 5328.90 6138.00 -809.10 $18.46 L-1 1/6/16 to $19.10 L-2 30/6/16 MMGT 272.00 5320.32 5984.00 -663.68 -1472.78 $18.91 L-1 117/16 to $19.56 L-2 MML 2041.50 39931.74 44913.00 -4981.26 $18.91 L-1 1/9/16 to $19.56 L-2 30/6/17 MML 1380 .00 27889.80 30360.00 -2470.20 -7451.46 $19.53 L-1 117/17 to $20 .21 L-2 30-11-17 TOTAL 20223.50 379850.85 356454.00 23396.85 23396.85
Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Employer Number of hours for which casual
loading
Entitlement Amount paid Underpaym ents Total for employer Applicable rates/hour Royal 17/3/13 to 30/6/13 1170.00 5159.70 0.00 5159.70 $4.2625 Ll
$4.41 L2
Royal
1/7 /13 to 30/4/14
4385.00 19820.20 0.00 19820.20 24979.90 $4.3725 Ll
$4.5225 L2
Platform
1/5/14 to 30/6/14
400.00 1808.00 0.00 1808.00 $4.3725 Ll
$4.5225 L2
Platform
1/7 /14 to30/6/15
5376.00 25052.16 0.00 25052.16 $4.5025 L1
$4.66 L2
Platform 1/7 /15 to
30/12/15
2730.00 13049.40 0.00 13049.40 39909.56 $4.615 Ll
$4.78
SNG69
1/1/16 to
30/5/16
2190.00 10468.20 0.00 10468.20 10468.20 $4.615 Ll
$4.775 L2
MMGT
1/6/16 to 30/6/16
279.00 1333.62 0.00 1333.62 $4.615 Ll
$4.775 L2
MMGT
1/7 /16 to 30/7/16
272.00 1330.08 0.00 1330.08 2663.70 $4.7275 L1
$4.89 L2
MML
1/9/16 to 30/6/17
2041.50 9982.94 0.00 9982.94 $4.7275 Ll
$4.89 L2
MML
1/7/17 to
30-11-17
1380.00 6969.00 0.00 6969.00 16951.94 $4.8825 Ll
$5.0525 L2
ANNEXURE 2 – CASUAL LOADING
Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Employer Number of hours for which Afternoon/nig ht shift
penalty
Entitlement Amount paid Underpayme nts Total for employer Applicable rates/hour Royal 17/3/13 to 30/6/13 360 1029.60 0.00 1029.60 $2.769 Ll
$2.865 L2
Ro yal
1/7/13 to
1320 3867.60 0.00 3867.60 4897.20 $2.8365 Ll
$2.9340 L2
Platform 1/5/14 to
30/6/14
120 325.20 0.00 325.20 $2.6235 Ll
$2.7135 L2
Platform 1/7/14 to30/6/15 1560 4352.40 0.00 4352.40 $2.7015 Ll
$2.7960 L2
Platform 1/7 /15 to
30/12/15
780 2230.80 0.00 2230.80 6908.40 $2.7690 Ll
$2.8650 L2
SNG69
1/1/16 to
714 2042.04 0.00 2042.04 2042.04 $2.769 Ll
$2.865 L2
MMGT
1/6/16 to
30/6/16
120 343.20 0.00 343.20 $2.769 Ll
$2.865 L2
MMGT
1/7 /16 to
120 351.60 0.00 351.60 694.80 $2.8365 Ll
$2.934 L2
MML
1/9/16 to
30/6/17
1134 3322.62 0.00 3322.62 $2.8365 L1
$2.9340 L2
MML
1/7/17 to
30-11-17
834 2527.02 0.00 2527.02 5849 .64 $2.9295 Ll
$3.0315 t2
TOTAL 7062 20392.08 0.00 20392.08 20392.08 ANNEXURE 3 – AFTERNOON SHIFT PENALTY
Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Employer Number of hours for which Saturday
penalty
Entitlement Amount paid Underpayme nts Total for
employer
Applicable rates/hour Royal 17 /3/13 to 15 6 4127.76 2574.00 1553.76 $25.575 L1 30/6/13 $26.46 L2
Royal 1/7/13 to
30/4/14
504 13673.52 8316.00 5357.52 6911.28 $26.235 Ll
$27.135 L2
Platform 1/5/14 to
30/6/14
48 1302.24 792.00 510.24 $26.235 Ll
$27.135 L2
Platform 1/7/14 to30/6/15 600 16776.00 9900.00 6876.00 $27.015 Ll
$27.96 L2
Platform 1/7 /15 to
30/12/15
300 8595 .00 4950.00 3645.00 11031.24 $27.69 Ll
$28.65 L2
SNG69 204 5844.60 3366.00 2478.60 $27.69 L1 1/1/16 to $28.65 L2 30/4/16 SNG69
1/5/16 to
30/5/16
40 1146.00 880.00 266.00 2744.60 $27.69 Ll
$28.65 L2
MMGT 40 1146.00 880.00 266.00 $27.69 L1 1/6/16 to $28.65 L2 30/6/16 MMGT
1/7 /16 to
30/7/16
40 1173 .60 880.00 293.60 559.60 $28.365 Ll
$29.34 L2
MML
1/9/16 to
30/6/17
352 10327.68 7744.00 2583.68 $28.365 LI
$29.34 L2
MML 270 8183.70 5940.00 2243.70 4827.38 $29.295 L1 1/7/17 to $30.315 L2 30 -11-17 TOTAL 2554 72296.10 46222.00 26074.10 26074.10 ANNEXURE 4 – SATURDAY PENALTY RATES
ANNEXURE 5 – SUNDAY PENALTY RATES
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 | Column 6 | Column 7 |
| Employer | Number of hours for which Sundav penalty | Entitlement | Amount paid | Underpayments | Total for employer | Applicable rates/hour |
| Royal 17/3/13 to 30/6/13 | 156 | 5503.68 | 2574.00 | 2929.68 | $34.10 Ll $35.28 L2 | |
| Royal 1/7/13 to 30/4/14 | 504 | 18234.72 | 8316.00 | 9918.72 | 12848 .40 | $34.98 Ll $36.18 L2 |
| Platform 1/5/14 to 30/6/14 | 48 | 1736.64 | 792.00 | 944.64 | $34.98 Ll $36.18 L2 | |
| Platform 1/7/14 to30/6/15 | 600 | 22368.00 | 9900.00 | 12468.00 | $36.02 L1 $37.28 L2 | |
| Platform 1/7 /15 to 30/12/15 | 300 | 11460.00 | 4950.00 | 6510.00 | 19922.64 | $36.92 Ll $38.20 L2 |
| SNG69 1/1/16 to 30/4/16 | 204 | 7792.80 | 3366.00 | 4426.80 | $36.92 Ll $38.20 L2 | |
| SNG69 1/5/16 to 30/5/16 | 40 | 1528.00 | 880.00 | 648.00 | 5074.80 | $36.92Ll $38.20 L2 · |
| MMGT 1/6/16 to 30/6/16 | 40 | 1528.00 | 880.00 | 648.00 | $36.92 L1 $38.20 L2 | |
| MMGT 1/7/16 to 30/7/16 | 40 | 1564.80 | 880.00 | 684.80 | 1332.80 | $37.82 Ll $39.12 L2 |
| MML 1/9/16 to 30/6/17 | 352 | 13770.24 | 7744.00 | 6026.24 | $37.82 Ll $39.12 L2 | |
| MML 1/7/17 to 30-11-17 | 270 | 10913.40 | 5940.00 | 4973.40 | 10999.64 | $39.06 Ll $40.42 L2 |
| TOTAL | 2554 | 96400.28 | 46222.00 | 50178.28 | 50178.28 |
Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Employer Number of hours for which Public Holiday penalty Entitlement Amount paid Underpaymen ts Total for employer Applicable rates/hour Royal 17/3/13 to 30/6/13 36 1587.60 594.00 993.60 $42.625 Ll Royal
1/7 /13 to 30/4/14
84 3798.48 1386.00 2412.48 3406.08 $43.725 Ll
$45.225 L2
Platform
1/5/14 to 30/6/14
12 542.64 198.00 344.64 $43.725Ll
$45.225 L2
Platform
1/7 /14 to30/6/15
120 5592.00 1980.00 3612.00 $45.025 Ll
$46 60 L2
Platform
1/7 /15 to 30/12/15
24 1146 .00 396.00 750.00 4706.64 $46.15 Ll
$47.75 L2
SNG69
1/l/16to 30/5/16
48 2292.00 792.00 1500.00 1500.00 $46.15Ll
$47.75 L2
MMGT
1/6/16 to 30/6/16
0 0.00 0.00 0.00 $46.15 L1
$47.75 L2
MMGT
1/7 /16 to 30/7/16
6 293.40 132.00 161.40 161.40 $47.275 Ll
$48.90 L2
MML
1/9/16 to 30/6/17
18 880.20 396.00 484.20 $47.275 Ll
$48.90 L2
MML
1/7/17to
30 -11 -17
6 303.12 132.00 171.12 655.32 $48.825 Ll
$50.525 L2
TOTAL 354 16435.44 6006 10429.44 10429.44 ANNEXURE 6 – PUBLIC HOLIDAY PENALTY RATES
ANNEXURE 7 – OVERTIME MON TO SAT FOR THE 1st 2 HRS
Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Employer Number of hours for which Overtime
penalty
Entitlement Amount paid Underpayme nts Total for employer Applicable rates/hour Royal 17 /3/13 to 120 3175.20 1980.00 1195.20 $25.72- $34.10 Ll 30/6/13 $26.46 $35.28 L2 Royal 440 11937.20 7260.00 4677.20 5872 .40 $26.235 34.98 Ll 1/7/13 to $27135 36.18 30/4/14 L2 Platform 40 1085.20 660.00 425.20 $26.235 34.98Ll 1/5/14 to
$27.135 36.18L2
30/6/14 Platform 520 14539.20 8580.00 5959.20 $27.015 $36.02 L1 1/7 /14 to30/6/15 $27.96 $37.28 L2 Platform 260 7449.00 4290.00 3159.00 9543.40 $27.69 $36.92 1/7 /15 to $28.65 $38.20 30/12/15 L2 SNG69 220 6303.00 3630.00 2673.00 2673.00 $27.69 $36.92Ll 1/1/16 to $28.65 $38.20 30/5/16 L2 MMGT 40 1146.00 880.00 266.00 $27.69 $36.92 L1 1/6/16 to $28.65 $38.20 30/6/16 L2 MMGT 40 1173.60 880.00 293.60 559.60 $28.365 $37.82 1/7 /16 to $29.34 $39 12 30/7/16 L2 MML 380 11149.20 8360.00 2789.20 $28.365$37.82 Ll 1/9/16 to
$29.34 $39.12
30/6/17 L2 MML 280 8486.80 6160.00 2326.80 5116.00 $29.295 $39.06 1/7/17 to $30.315 $40.42 30-11-17 TOTAL 2340 66444.40 42680.00 23764.40 23764.40 ANNEXURE 8 – OVERTIME MON TO SAT FOR EXCESS OF 9.6 HRS
Column 1 Column 2 Column 3 Column 4 Column S Column 6 Column 7 Employer Number of hours for which Overtime
penalty
Entitlement Amount paid Underpayme nts Total for employer Applicable
rates/hour
Royal 17/3/13 to 36 1270.08 594.00 676.08 $25.72 $34.10 30/6/13 Ll $26.46 $35.28 L2 Royal 1096 39653.28 18084.00 21569.28 22245.36 $26.235 34.98 1/7 /13 to 30/4/14 $27.135 36.18 L2 Platform 88 3183.84 1452.00 1731.84 $26.235 34.98Ll 1/5/14 to 30/6/14 $27.13 5 36.18L2 Platform 1364 50849.92 22506.00 28343.92 $27.015 $36.02 Ll 1/7 /14 to30/6/15 $27.96 $37.28 L2 Platform 834 31858 .80 13761.00 18097.80 48173.56 $27.69 $36.92 1/7/15 to $28.65 $38.20 30/12/15 L2 SNG69 576 22003.20 9504.00 12499.20 12499.20 $27.69 1/1/16 to $28.65 $38.20 30/5/16 L2 MMGT 239 9129.80 5258.00 3871.80 $27.69 $36.92 Ll 1/6/16 to 30/6/16 $28.65 $38.20 L2 MMGT 226 8841.12 4972.00 3869.12 7740.92 $28.365 $37.82 1/7 /16 to 30/7/16 $29.34 $39.12 L2 MM L 1643 64274.16 36146.00 28128.16 $28.365$37.82 Ll 1/9/16 to 30/6/17 $29.34 $39.12 L2 MML 1094 44219.48 24068.00 20151.48 48279.64 $29.295 $39.06 1/7/17 to $30.315 $40.42 30-11-17 TOTAL 7196 275283.68 136345.00 138938.68 138938.68
| TOTAL UNDER PAYMENTS TO CLAIM | ||||||
| ANNEXES | COMPANIES | AMOUNT IN AUD | ||||
| ROYAL | PLATFORM | SNG69 | MMGT | MML | ||
| ANNEX 1 | 8488.45 | 19238.64 | 4594.00 | -1472.78 | -7451.46 | 23396.85 |
| ANNEX 2 | 24979.90 | 39909.56 | 10468.20 | 2663.70 | 16951.94 | 94973.30 |
| ANNEX 3 | 4897.20 | 6908.40 | 2042.04 | 694.80 | 5849.64 | 20392.08 |
| ANNEX 4 | 6911.28 | 11031.24 | 2744.60 | 559.60 | 4827.38 | 26074.10 |
| ANNEX 5 | 12848.40 | 19922.64 | 5074.80 | 1332.80 | 10999.64 | 50178.28 |
| ANNEX 6 | 3406.08 | 4706.64 | 1500.00 | 161.40 | 655.32 | 10429.44 |
| ANNEX 7 | 5872.40 | 9543.40 | 2673.00 | 559.60 | 5116.00 | 23764.40 |
| ANNEX 8 | 22245.36 | 48173.56 | 12499.20 | 7740.92 | 48279.64 | 138938.68 |
| TOTAL | 89649.07 | 159434.08 | 41595.84 | 12240.04 | 85228.10 | 388147.13 |
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