Osorio v Sprint Telco Pty Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSORIO v SPRINT TELCO PTY LTD

[2017] FCCA 1061

Catchwords:
INDUSTRIAL LAW – Small Claims – breach of award conditions – scheme of employing foreign students subject to work restrictions – payment of gross sum without deduction of tax at less than award rates – non-payment of wages – threats to expose employee to Immigration department.

Applicant:

JULIANA DURANGO OSORIO

Respondent:

SPRINT TELCO PTY LTD

File Number:

MLG 935 of 2017

Judgment of:

Judge McNab

Hearing date:

17 May 2017

Date of Last Submission:

17 May 2017

Delivered at:

Melbourne

Delivered on:

17 May 2017

REPRESENTATION

Solicitors for the Applicant:

JobWatch

ORDERS

THE COURT DIRECTS THAT:

The Respondent SPRINT TELCO PTY LTD has contravened the provisions of the Telecommunications Services Award 2010 by failing to pay the Applicant’s entitlements of $7,199.93.

THE COURT ORDERS THAT:

Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth) the Respondent pay the Applicant the sum of $7,199.93 within 21 days of the date of these orders.

AND THE COURT NOTES THAT:

A.There was no appearance by the Respondent at Court this day.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 935 of 2017

JULIANA DURANGO OSORIO

Applicant

And

SPRINT TELCO PTY LTD

Respondent

REASONS FOR JUDGMENT

By an application filed on 8 May 2017, the applicant seeks payment of underpayments of wages in the sum of $5,810.85 and unpaid superannuation entitlements in the sum of $1,389.93. This relates to work performed by the applicant for the respondent between 29 March 2016 and 5 July 2016.

Background

The applicant appeared before the Court represented with leave by Ms Marchetti of JobWatch. The respondent was called outside of Court but there was no appearance by the respondent. I am satisfied that the respondent has been served with a copy of this application by post and by email.
The applicant is a citizen of Colombia who is subject to a Student visa which limited her entitlements to work to 40 hours per fortnight. She has qualifications in marketing and advertising with a specialisation in web design. She gave sworn evidence in support of her application.
In about March 2016, the applicant placed an advertisement on the Gumtree website indicating that she was seeking work. She was approached by a person called Blake Griffiths who told her that he operated a company called Sprint Telco.
The applicant was invited to and did attend an interview at the offices of Sprint Telco in Bourke Street, Melbourne. At that meeting, she was asked about her experience. She was able to demonstrate that she had experience in designing websites, including her own website, and she was able to show Mr Griffiths the work that she had done as a web designer.
She was offered work at the rate of $20 per hour to work as a web designer. She says that she believed that she would be treated as an Australian employee and paid in accordance with the Australian system governing Australian employees.
She was employed from 29 March 2016 and did work from 9am to at least 5pm on Monday to Friday, but was occasionally called in to work on weekends.
Initially, she was paid in accordance with the arrangement, but subsequently the payments became less frequent. She gave sworn evidence that she was not paid between 6 June 2016 and 5 July 2016. On one occasion, she was paid by cheque, however the cheque bounced.
As part of her work, the applicant designed, created and maintained a website for the respondent and I have seen an example of her work, which shows a screenshot of the website that she designed.[1] She was also responsible for the design of promotional products used by Sprint Telco as well as maintaining the social media presence of the company.
[1] exhibit A5.
She worked independently, although she did have regular dealings with Blake Griffiths and another person called Mohammed Azam. Her business card, which was produced to the Court, described her role as Online Marketing Manager.[2] The times she worked were recorded by a finger print recognition scanner at the respondent’s workplace.
[2] exhibit A2.
The other people in the Melbourne office included international students or applicants for permanent residence who were subject to work restrictions on their visas. The applicant gave evidence that they were all paid by cash and had not been paid for all the work that they had performed.
The most disturbing aspect of this case is the evidence of what occurred when the applicant sought payment of outstanding wages. The applicant gave evidence that she overheard Blake Griffiths speaking in a loud voice in the workplace to a person who she understood was in India. She said that Mr Griffiths was pretending to be a policeman and talking to a person in India about another person who had posted a Facebook post stating that Sprint Telco did not pay their employees.
Mr Griffiths was said to have stated to that person:
I want you to find that person and break his legs and I want you to video this. I also want you to find his wife and kid.
When he got off the phone, he said to the employees in Melbourne that he would show them the video. The applicant gave evidence that Mr Griffiths had also said about a worker who had complained about non-payment of wages that he would plant cocaine in her bags and report her to the police.
Blake Griffiths is a director of Sprint Telco and has been since 13 February 2017.[3] His mother, Sally-Anne Griffiths of Casino, New South Wales, is a director of that company having been appointed in May 2016.
[3] See exhibit A3, which is a company search of the respondent company.
The claims which I have just referred to are alarming, but on the evidence of the applicant, I accept that those statements were made. I am fortified in this view having read a transcript of text messages between the applicant and the defendant which were produced to the Court.[4]
[4] exhibit A4.
The messages commencing from Mr Blake Griffiths on 29 April 2016 (transcribed exactly):
Please call me when free its blake
On 17 May 2016:
Hey im really sorry about today. You dont deserve to be spoken to the way it was today. I just want to say thank you and I really do appreciate your hard work. See you tomorrow. Blake
On 9 July 2016:
B: Hi Juliana please give me a call when you are free
J: Hello, Im in the school at the moment, Im finishing at 5:00
B: Your good for tomorrow we will pick u up at 11am
J: Sorry, I cant. I have to come to the school tomorrow to finish the New assessment
B: We gave u so much notice that we needed you on Sunday
B: But now you have let us down
B: We need to find someone else now and it will be very hard for us
J: I told Mohammed Wednesday and he said it was fine
J: And i said before that i have to study, it is not my choice, if i Sint [sic] bring my assessment i have to pay penalty
J: And Since [sic] the first day which i started to work with you i told you that Im studying weekends
B: Ok no problems come Monday morning to office
B: U will come Monday?????
J: Ok
J: Well, I Would [sic] come to work on monday if I get my money first. Im still Waiting for my money and you want me to keep working without it.
B: Really then don’t come to work your choice u come to work u will get paid if u don’t come u won’t get paid simple this is not your company it’s mine and theses [sic] are my rules
J: Ok, Im not coming to work for free
J: Get someone to work for free, no me
B: Juliana
B: If u want money come on Monday
B: If u don’t want don’t come
B: Simple
J: You have to pay me anyway
B: I don’t have to
J: It my money, i worked for it
B: So are u coming on Monday yea or no
B: ???
B: Simple yes or no. So Juliana are u coming on Monday?
B: Say yes or no I need to know
J: Are you telling me that you WILL pay me on monday all that you owe me?
B: It’s simple if u come Monday u will have a job if u don’t come u won’t have a job and I will not pay u simple
B: We always pay you I’m not sure why u always act like this. You never acted like this before but once Christian came you became very strange
B: So just tell me are u working on Monday yes or no otherwise I need to find someone else
On Saturday, 9 July 2016, 8:45 pm:
B: Can u reply
B: We need to know
J: It’s really hard to work like that, I’m doing my job. The only thing that I want its [sic] my payment on time, it’s not that difficult, and you always lie to me, you always say that you have problems with the bank, cheque, accountant, etc.. just be on my side, I need to pay my things. Its have [sic] been 3 weeks now, I have been so patient, but I can’t wait more time, I’m always asking people to lend me money. I just want a normal job with payments on time. If I’m [sic] keep working you will owe me more money. I’m not Australian but I know my rights as an employee. It is affecting me life, me health [sic], I’m so stress all the time, do you think that is fair? I’m so responsible with my job, are you responsible with payment? And then you just told me that if I come to work I can keep my job, but if I don’t, I will lose the job and the money that you owe me. So, I ask you again, do you think that is fair?
B: Juliana, I understand all of that. I’m asking u are u coming on Monday ? Come on Monday let’s sit my mum will be here to and we will sort out all the issues
B: How does that sound
B: We will be on your side. Just come on Monday let’s have a meeting and u say your problem we will sort it out
B: That’s all I can do for u
J: Ok, I will come to have a chat with all of you. What time?
B: Come at 9 am
B: Because we will solve the issues and you can get back to work on the website
On Monday 11 July 2016 at 12:55 am:
B: Come after 12pm as we will be late
On Monday 11 July 2016 at 12:56pm:
J: Hello,
Let me know what time are you going.
Thanks
On Tuesday 12 July 2016 at 3:17pm:
B: Hi
It was great speaking with you on the phone today. If you would like to be reasonable and chat please do give me a call
Cheers
On Thursday 14 July 2016 at 2:12pm:
B: Call me if u want money
J: I don’t want to speak, if you want to fix it, just pay me, do it in my account
B: Don’t worry then. Go to fair work
B: Cheers
B: U choose to do it this way. No problems just remember that u were only allowed to work 20 hours a week I believe you worked more than 20 hours maybe I should give immigration a call and let them know what has happened
B: So I advise u to call me
B: Thanks
On Thursday 14 July 2016 at 2:12 pm:
B: Immigration have been called. Just letting u know
On 31 October 2016 at 8.01 pm, the applicant sent her bank details to Mr Griffiths.
The evidence discloses that the applicant consulted with Ms Marchetti of JobWatch in about September 2016 and the correspondence was forwarded to Mr Griffiths and Mr Azam of Sprint Telco on that day setting out the claim. That was sent by express post and by email, and a letter was also sent to Sally-Anne Griffiths on similar terms.
No response was received in terms of payment but a response was received by telephone from Mr Griffiths to Ms Marchetti in which he complained vehemently in relation to a reference being made to Mr Mohammed Azam in the letter of 2 September 2016.
The applicant has not been paid either in respect of wages and superannuation entitlements; the respondent has not cooperated in having any discussions with Ms Marchetti or the applicant; and has not cooperated with the Fair Work Ombudsman in trying to have this matter resolved.
Having heard the evidence, I am persuaded that the applicant’s claim is made out. She performed the work of a level 4 employee under the Telecommunications Award 2010. The rate of pay that she was paid, being $20 an hour, did not compensate her for the award entitlements due, and I am satisfied that the applicant was entitled to the sums claimed. Accordingly, the Court makes orders in the terms sought by the applicant. Other standards of employment were not observed by the respondent.
Consideration was given in the course of the hearing to transferring this matter into out of the small claims list into the Fair Work list of this Court. One reason for transferring the matter is that, because of the terms of the rules that govern the small claims list, an applicant is not entitled to seek a penalty pursuant to the relevant provisions of the Fair Work Act 2009.
In my view, the evidence would support a finding that a substantial penalty would be due to be imposed on the respondent and the directors of that company, or the people involved in the breaches if they were so joined to the application, and the matter was heard in the Fair Work list.
However, the applicant needs to leave the country and there is a real risk that the matter would not have been dealt with by the Court by this time as the respondent would need to be put on notice of the change to the claim.
The allegations which I have found to be proven in relation to the conduct of the company and Mr Griffiths are very serious ones and indicate conduct which involves a scheme of exploiting vulnerable employees, in particular, reasonably young international students who are working in Australia subject to work restrictions on their visas. It would appear that the conduct is part of a business plan. I am also conscious that both the applicant and respondent were participating in a scheme to effectively defeat the visa restrictions imposed on the applicant and where tax is not being deducted from the amounts paid to the applicant.
For those reasons, I make orders that are listed above.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 19 May 2017

[2017] FCCA 1061

17 May 2017

Key Legal Topics

Areas of Law

Civil Procedure

Commercial Law

Legal Concepts

Appeal

Jurisdiction

Costs

Summary Judgment