Nevistic v Minister for Immigration and Ethnic Affairs

[1981] FCA 41

Re: REGINALD SCHOFIELD
And: GIOVANNI DE ROMANIS and WANDA DE ROMANIS trading as PETERSHAM MEAT MARKET
N.S.W. No. 23 of 1980
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
J.B. Sweeney J.

CATCHWORDS

Industrial law - non-observance of award - failure to pay award wages - failure to pay one week's salary in lieu of notice of termination - breaches treated as a single breach arising out of a course of conduct - classification of employee

Federal Meat Industry (Interim) Award 1962 as varied

Conciliation and Arbitration Act 1904

HEARING

SYDNEY

#DATE 15:4:1981

ORDER

1. The Court finds that the respondents committed breaches of the Federal Meat Industry (Interim) Award 1962, as varied, in that they failed to pay to Pietro Gulla the wages prescribed by that award.

2. The Court finds that the respondents committed a breach of the Federal Meat Industry (Interim) Award 1962, as varied, in that they failed to pay to the said Pietro Gulla one week's salary in lieu of notice of termination.

3. The breaches referred to in Paragraph (1) thereof appear to the Court to have arisen out of a course of conduct by the respondents. Those breaches shall be treated as constituting a single breach.

4. A penalty of $400 (Four hundred dollars) is imposed upon the respondents in respect of non-observance of the Federal Meat Industry (Interim) Award, 1962, as varied, being a failure to pay an employee award wages.

5. A penalty of $100 (One hundred dollars) is imposed upon the respondents in respect of a non-observance of the Federal Meat Industry (Interim) Award 1962, as varied, being a failure to pay to the same employee one week's salary in lieu of notice of termination.

6. The penalties be paid to the Australian Meat Industry Employees' Association.

7. It appearing to the Court that the said Pietro Gulla has not been paid amounts to which he is entitled under the said award, the Court orders that the respondents shall pay to Pietro Gulla the sum of $2,367.21 (Two thousand three hundred and sixty seven dollars and twenty one cents).

JUDGE1

This is an application for the imposition of a penalty pursuant to s.119 of the Conciliation and Arbitration Act, 1904 ("the Act") in respect of alleged breaches of the Federal Meat Industry (Interim) Award, 1962 as varied. The breaches alleged were failure to pay an employee award wages and failure to pay to the same employee one week's salary in lieu of notice of termination.

The respondents, Mr. and Mrs. De Romanis, conduct a retail butchery and trade as Petersham Meat Market. It is common ground that they employed Mr. Pietro Gulla during the period from 23 January, 1978 to 6 October, 1978.

Issues arise as to the proper classification of the employee, the hours he worked and the payment in fact received. Both counsel agree, in my view properly, that a resolution of the issues depended on the question whether I accept the evidence of Mr. Gulla or on the other hand the evidence of the two respondents.

So far as Gulla is concerned, his employment commenced shortly after his arrival in this country and his knowledge of English was somewhat limited. Part of his evidence in chief was given, as far as he was able, in English but thereafter through an interpreter. I found Gulla an impressive witness. He appeared willing to make concessions against his interest and although subject to intense cross examination, his evidence was not in my view broken down.

It was put to me that there were two matters which should lead me to a view that his credit had been successfully attacked. The first was a statement in the affidavit of Mr. Schofield, the Secretary of the Union, which Mr. Schofield said had been prepared by an officer of the organization who had had regard to a statutory declaration made by Mr. Gulla. Even if some error was made, and that does not appear clearly to me, I do not think the statement in Mr. Schofield's affidavit reflects in any way on the credit of Mr. Gulla. The second attack made on him arose from a conflict between the parties whether a sum of $200 was loaned to Gulla by Mr. De Romanis. A letter dated 10 October, 1978 was tendered. In it Gulla was sent a cheque for moneys due to him and reference was made to a deduction of $200 described as "loan to you from Mr. De Romanis". It was claimed that since Gulla did nothing other than see the union concerning this and had not taken any action to recover the amount, his denial that there had been a loan should be rejected and so his credit was impugned. I do not agree. Gulla's evidence was that he had prior to receiving the letter from De Romanis seen the union and placed the matter in their hands, that he did not understand the terms of the letter and he sought the advice of a union officer about it. That I think is all he could fairly have been expected to do.

It was further put that the fact that Gulla was dismissed in October, 1978 while the proceedings were not commenced until November, 1980 reflects on him. I do not see why it should be assumed that any delay was of his doing rather than of the union or the solicitors.

So far as the two respondents are concerned, they did not impress me in their evidence. The male respondent's evidence was in conflict with both wage records kept by or for him and an affidavit sworn by him on 8 December, 1980 while I am quite unable to accept the evidence he gave as to the keeping of other books of account. In addition he shifted ground in cross examination on matters such as hours worked. Neither of them was impressive in the witness box. Mr. De Romanis at times gave evidence fluently in cross examination and more than once answered a question without waiting for it to be interpreted. At other times he professed not to understand a question. He was able to read in English a paragraph of his affidavit of 8 December 1980, apparently without the assistance of any interpreter. I was left with the impression that he sought to take refuge behind an interpreter in giving his evidence.

Turning to the specific issues in the case, Gulla's evidence was that he sought employment a day or two after he arrived in Australia. He was taken to the shop by a cousin of his wife. His evidence was that he was a fully qualified butcher having served an apprenticeship and then been employed in a butchers shop in Rome. He said this to De Romanis. He was told that the work required was boning the meat, preparing the plates to put in the window, serving some customers and cleaning up. He was told the shop opened at 8 o'clock and only on Friday and Saturday an hour before that. There was no other discussion on hours. His evidence was that he worked from 8 a.m. to 6 p.m. Monday to Wednesday, from 8 a.m. to 6 or 6.15 p.m. on Thursday, from 7 a.m. to 6.25 p.m. on Friday and from 7 a.m. to 1.30 p.m. to 2 p.m. on Saturday and that he had about a half hour lunch break. The respondents denied that these hours were worked by Gulla.

The award requires records of hours and days worked to be kept and a form is set out in clause 28 of the award. Provision is made for a certificate that such hours are true and correct and that the payments shown are also true and for signature to the entries by the employee. No such record as this was kept. There was however tendered a form of time and pay sheets. These show starting time of 9 a.m. and finishing time of 5 p.m. for the first to fifth days of the week. The sixth and seventh days are struck out. Many of these entries according to the evidence of Mr. De Romanis were made by his accountant but on seven occasions between 13 and 27 March, 1978 there appear the figures of the commencing day of the week in Mr. De Romanis' handwriting while there also appears against the entry 23.7.78 the same figures of 9 to 5 and a total of eight ordinary hours as appear in the entries preceding. The record is obviously and indeed admittedly, incorrect. It is common ground that work was performed on the sixth day and no-one even suggests that eight unbroken hours were worked between 9 a.m. and 5 p.m. The total weekly hours are shown as forty and the gross amount due as $145.70 rising to $156.20. This purports to cover the period up to 26 June, 1978. I found Mr. De Romanis' evidence as to the manner in which these records were kept quite unsatisfactory. He suggested at one point that the entries were made daily or weekly. A separate page was put in purporting to cover the period 7.8.78 to 6.10.78 but no record appears in these figures of hours or amount. Apart from the inconsistency of his evidence with these records, his evidence is irreconcilable with an affidavit he made in these proceedings on 8 December, 1980. In that affidavit he said the working hours were from 8.30 a.m. to 5.30 p.m. Monday to Friday and 8 a.m. to 12 p.m. on Saturdays. Mr. De Romanis' evidence was that on Saturdays Gulla worked between 8 and 11 to 11.30 but under cross examination he ultimately agreed that he worked from 8 till 12 on Saturdays. Mrs. De Romanis in chief gave evidence that the hours of work on Saturdays were from 8 to 11 or 11.30 but she too when pressed agreed that Gulla worked between 8 and 12. I am satisfied that I should accept the evidence of Mr. Gulla and find that he worked the hours he detailed in his evidence.

The second issue which arose was whether he was employed as a boner, being classification 7 in division B of the award, or as a general butcher who in the course of his duties acts as shopman, being classification 4 of the same division of the award. I accept Gulla's evidence that his duties consisted of firstly breaking up the carcasses as they arrived in the shop. His evidence was that he did this with all types of carcasses - beef, veal, lamb and mutton and pork. Mr. De Romanis' evidence was that Gulla worked only on the beef and veal carcasses but I do not accept this. Gulla also gave evidence of other duties performed by him such as preparing the trays for the window display and serving customers. At one point in Mr. De Romanis' evidence at p.132 the following appears:

"Mr. De Romanis, is not this the position, that Mr. Gulla used to be in the shop and used to involve himself in cutting steaks and chops? ---He had to do the trays first; since he arrived from Italy he could not do - needs time to learn how to cut steak and chops."

Later, however, he denied that Gulla did any work with the preparation of the trays. The plain fact is that if Gulla did only the work of breaking up the carcasses and cleaning then he would be idle for very long periods during the day. The work of breaking up the beef and veal carcasses would take at the outside 8-10 hours per week, a very small proportion of the forty between Monday and Friday. There was no suggestion of charity ever made and I find it very difficult to accept that a qualified butcher would be so engaged to do such a small amount of work. I prefer Gulla's evidence that his duties included the preparation of trays for display and also the serving of customers. Since Petersham is in an area where there live many members of the Italian community, I think his account, although his knowledge of English was limited, is much the more likely. As well as the work already referred to, he prepared particular cuts of meat, sliced steaks etc. I think then that Gulla during the time in question was a general butcher within the meaning of classification 4.

The next issue concerned that of payment. Gulla's evidence was that he received after deduction of tax $129.40 for the first two weeks and thereafter $139.40 after deduction of tax. The evidence of the respondents was that in addition to these amounts which were paid to him by cheque, he was paid on Saturdays an additional amount ranging from $49.10 to $70.60. The time and wages sheets to which I have referred in the entries from 23 January, 1978 to 26 June, 1978 show Gulla receiving as net wages for the first two weeks $130.90 and for the remaining weeks $139.40. However the real issue surrounds the additional sum alleged to have been paid on Saturdays. This amount, be it $49.10 or $70.60 was very much in excess of the award rate for three or four hours overtimne on Saturday. It was described in the respondents' evidence sometimes as payment for Saturdays and at other times as extra money. Tax was not deducted in respect of this amount. There were offered in what was claimed to be support of the evidence of the respondents, a series of account books. These were said to have been kept by the male respondent and contain entries of varying amounts according with the claim that they were paid to Gulla. The accounts purported to be a statement of income received at the shop for sales and of outgoings by way of purchases etc. A figure is then shown which purports to be the income and a figure which purports to be the outgoings. Although as I have said, there appear as separate entries the amounts ranging up to $70.60, they have not been taken into account in either of the figures I have referred to. It was claimed that the amount was paid in cash taken from the till or register and the amounts shown as income are consequently that amount less than the true figure. Similarly it was said they were not taken into account in the calculation of the outgoings. An examination of bank records tendered on behalf of the respondents shows that the amounts shown as income do not in very many cases correspond with the amounts shown as banked. Moreover, the entry of the amount alleged to have been paid to Gulla frequently appears in a markedly different coloured ink and appears to have been written with a different pen. Some number of them bear the appearance of having been written at the same time. I do not regard these records as assisting in any way the case of the respondents. Indeed I think the strong probability is that in many cases the sum was added at a date considerably later than the other entries on the same pages and far from assisting the case for the respondent I think they are false records. Mr. Graves, who said all that could be said in defence, ultimately advanced the possibility that they were related to a desire to lessen tax. Even if that were so, I am unable to regard the actions of a man so keeping records as reflecting other than unfavourably on his credit.

Reliance was also placed on the evidence of Mr. Pucariello who was a cousin of the wife of Mr. Gulla. He accompanied Gulla to De Romanis' shop and introduced them knowing that Mr. De Romanis had a vacancy in his employment. His evidence of the engagement was that after De Romanis had asked Gulla a lot of questions, Gulla said I am a full butcher and arrangements were then made for him to start. At that time the witness had known De Romanis for ten years. He further gave evidence that on one occasion he was asked by Gulla to collect his pay from De Romanis. He says that he collected a cheque and some money in bank notes which he delivered to Gulla. He did not know the amount of the cheque or of the bank notes. The witness at first said with some precision that the cheque and cash were taken out of a drawer and placed in an envelope. Immediately after he said he remembered the notes being taken from De Romanis' pocket. He had claimed that his recollection was clear on each occasion. This is relied on as showing that Gulla received the cash payments. It is however clear that the cash payments were never an even number of dollars but included usually sixty cents. It was impossible for the precise amount to be handed over in bank notes and when a witness claiming a clear recollection makes mistakes firstly as to whether notes were taken from a drawer or the pocket and when it is quite clear that if coins were handed over he did not see them, I am unable to accept the evidence. In addition, it is clear that Mr. Pucariello was a close friend of Mr. De Romanis, while his manner in giving portion of his evidence suggested some hard feelings towards Gulla. I do not accept the evidence.

The remaining issue is whether Gulla was entitled to payment in lieu of notice of termination. It is alleged that he was dismissed for misconduct in that he sought to have his employer lodge a false claim for Workers' Compensation. Gulla's evidence was that he injured himself on 5 October and that with the employer's permission he took some hours off in the afternoon to attend at Canterbury Hospital. He returned with his arm bandaged and with a certificate from the hospital as to his fitness. His evidence was that Mr. De Romanis told him to go home and said he would talk to his accountant concerning the compensation claim. On Monday he rang and when he eventually contacted Mr. De Romanis he said come and get your pay off. It may be mentioned that some time in September Gulla had complained about the lunch hour and lack of payment for overtime. I am satisfied that the account given by Mr. Gulla is correct and I am satisfied that he was not paid the amount due to him under the award and that as a consequence a breach of the award was committed.

I am satisfied that Gulla was paid no more than that he stated in his evidence and that he was absent from his employment for no more than three days. It is not clear whether these were sick leave but there appears to have been no deduction from his weekly pay.

Accepting as I do Gulla's evidence, I am satisfied that breaches of the award as alleged were committed by the respondents.

I am quite unable to accept their picture of the employment. It is contrary to all experience that a man a stranger to the employer, would be employed when most of the time he had nothing to do and that he would be brought in to work on Saturdays when there was no meat delivered to the shop and no boning or breaking to be done. In addition, of course, on their evidence he was paid for Saturday far in excess of the award rate.

I think however that the breaches so far as they relate to wages may be said to have arisen out of a course of conduct by the respondents and should therefore be treated as constituting a single breach. So far as the breach by failing to pay wages in lieu of notice of termination, I am also satisfied that that breach was committed.

A claim is also made pursuant to s.119 for an order for payment of moneys underpaid. Counsel both asked that after my reasons had been published, an opportunity should be given to them to submit written calculations and if necessary to address on them. I will adopt this course and adjourn the further hearing to a date to be fixed for this purpose. At that time I will also impose penalties for the two breaches of the award.