Pello-Esso v Thayli Pty Ltd (No.2)
[2019] FCCA 2590
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PELLO-ESSO v THAYLI PTY LTD (No.2) | [2019] FCCA 2590 |
| Catchwords: INDUSTRIAL LAW – Alleged failure to pay wages and overtime and for public holidays – whether employee or volunteer – whether intention to enter into a contract of employment – whether offer and acceptance – whether valuable consideration – whether covered by terms of the relevant Modern Award – whether within the claimed classification – whether proof of times worked. |
| Legislation: Fair Work Act 2009 (Cth), Pt.4-1,Div.3 ss.12, 538, 548, 570 Federal Circuit Cout of Australia Act 1999 (Cth), s.75 Migration Legislation Amendment (2015 Measures No.3) Regulation 2015 Migration Regulation 1994 (Cth), Sch.2, cl.417.211 Pastoral Modern Award 2010, cll. 10, 27 |
| Cases cited: ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228; (2006) 232 ALR 69 Coastal District Timber Hewers’ Union v Millars’ Karri & Jarrah Co (1902), Ltd (1906) WAAR 93 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 75 ALJR 1356; (2001) 47 ATR 559; (2001) 106 IR 80; (2001) 181 ALR 263; (2001) 33 MVR 399; [2001] Aust Torts Reports 81-615; (2001) 50 AILR 4-476 C Sappideen et al, Macken’s Law of Employment (7th Edn) (Pyrmont: Law Book Co, 2011) |
| Applicant: | ELLIE PELLO-ESSO |
| Respondent: | THAYLI PTY LTD |
| File Number: | PEG 134 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17-18 September 2014 |
| Date of Last Submission: | 18 September 2014 |
| Delivered at: | Perth (heard in Carnarvon) |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| For the Applicant: | Ms E Pello-Esso |
| For the Respondent: | Mr SR Aylmore |
ORDERS
That the application be dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG134 of 2014
| ELLIE PELLO-ESSO |
Applicant
And
| THAYLI PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The Court has before it a claim under the Fair Work Act 2009 (Cth) (“FW Act”) primarily, for a sum of $19,392.36 for allegedly unpaid wages and overtime, and for public holidays, brought by the applicant Ms Ellie Anne Charlize Pello-Esso (“Ms Pello-Esso”).
The claim is brought by Ms Pello-Esso on the basis that she claims to have been employed by the respondent, Thayli Pty Ltd (“Thayli”), as a farm and livestock hand, level 5 (“FLH 5”) under the Pastoral Modern Award 2010 (“Pastoral Award”).
Thayli claims that Ms Pello-Esso was a volunteer performing tasks without remuneration, other than accommodation, food and drink (to the extent that they might be considered remuneration), and not as an employee.
Thayli operates a pastoral station property, called Ella Valla Station, on a pastoral lease, of 100,000 hectares, some 30 kilometres out of Carnarvon.
Carnarvon is a medium size Western Australian coastal town, approximately 900 kilometres north of Perth, at the mouth of the Gascoyne River.
The Application
The Application is a small claim under the FW Act. That much is not in dispute. In relation to small claims s.548 of the FW Act provides as follows:
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
(4) At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
The capacity to act informally and without regard to legal technicalities is not the provision of a licence to disregard legal principles: Zoological Board of Victoria v Australian Liquor, Hospitality & Miscellaneous Workers Union (1993) 49 IR 41 at [48] Moore J; Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 (“Ejueyitsi”) at [7] per Lucev FM, and it does not displace the requirement that the Court must exercise its powers judicially: Walker v State of Victoria [2012] FCAFC 38 at [81] per Gray J; Ejueyitsi at [7] per Lucev FM. In respect of a similar provision in early Western Australian industrial relations legislation the Western Australian Court of Arbitration observed as follows in Coastal District Timber Hewers’ Union v Millars’ Karri & Jarrah Co (1902), Ltd (1906) WAAR 93 at 95 per Burnside J:
I very much doubt if the Legislature meant that we should accept the loosest form of evidence. I rather think it intended that we should abide by the rules of evidence as nearly as possible but not to the absolutely technical rules of evidence.
What is claimed by Ms Pello-Esso is set out in the Form 5 annexed to the application (and filed with it). In that regard it is alleged:
a)that she worked at Ella Valla Station from 26 February to 24 May 2013;
b)that Ms Pello-Esso worked in the occupation of “Station-hand” and carried out the following duties: shearing; driving; maintaining and operating farm equipment and machinery, routine fencing repairs, repetitive repair of windmills, cooking and cleaning, and that she was classified as a “Farm and Live Stock Hand level 5” (“FLH 5”) under the Pastoral Award;
c)that there have been contraventions of the National Employment Standards (“NES”) as follows:
“1. The maximum hours of work
· Although the maximum hours of work per week is one part of the of the NES, I worked more than 38 hours a week.
2. Public Holidays according to the NES
· I worked four different public holidays. 11 hours of work on each of the public holiday without remuneration
3. Fair Work Information Statement is included in the NES
· The Employer never provided any advice or reference to any Awards that may have been applicable.
d)contraventions of the Pastoral Award as follows:
1. Minimum wages - according to clause 28 of the Award.
2. Ordinary hours of work
· The clauses 30.1 and 30.2 define that the average ordinary working hours should not exceed an average of 38 hours per week over four week period.
· Or the ordinary hours of work of farm and livestock hands should not exceed 152 hours and in any consecutive period of four weeks.
3. Overtime
· All time worked by an employee in excess of the hours worked in clause 30.1 is regarded as overtime. Furthermore, the rate of pay for overtime for a farm and livestock hand is time and a half, except on Sunday when the rate is double time.
4. Payment for Public Holiday
· Referring to clause 30.2 of the Award; where workers are required to perform on a public holiday the rate of the pay is double time.
e)on the basis of the alleged contraventions of the Pastoral Award Ms Pello-Esso has claimed a sum of $19,332.36 being wages of $8,797.10, overtime of $9,027.98 and public holiday payment of $1,567.28.
The details of the claim are set out at Part I of the Form 5, and can be summarised as follows:
a)that the rate of pay applicable under clause 28 of the Pastoral Award for the FLH 5 classification was an hourly rate of $17.80 and weekly rate of $676.70;
b)that Ms Pello-Esso kept “detailed records of my working hours” and her “time sheet” shows hours worked in excess in the ordinary hours in cl.30.1 and 30.2 of the Pastoral Award;
c)in summary, Ms Pello-Esso worked 338 hours overtime, 235 hours overtime on weekdays, and 103 hours of work performed on Saturdays;
d)there is no record of time worked on Sundays as Sundays were said to be rest days even though some worked was carried on Sundays, including house and toilet cleaning;
e)on each of the four claimed public holidays, 11 hours were worked, payable at the rate of double time.
Response
Thayli denied all of the claims in its Response filed with the Court, asserting that the claims were “false”, that Ms Pello-Esso “agreed to a voluntary position”, and that the “… position offered was a voluntary position (as advertised) and not a paid position”. Thayli also sought costs: compare FW Act, s.570(2), and see [71] below.
Evidence and materials considered
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that in preparing these Reasons for Judgment the Court has had access to and read all of the relevant papers and the materials relied upon including:
a)the Application and Form 5 Claim form;
b)the Response;
c)Ms Pello-Esso’s affidavit sworn 3 September 2014 (‘Pello-Esso Affidavit”), which included various annexures including a significant number of photographs, including a photograph of a calendar purporting to show hours worked during the relevant period (“Diary Calendar”), and a number of audio files recorded by Ms Pell-Esso on a number of days during her time at Ella Valla Station which she subsequently transcribed (“Audio Files”);
d)the following affidavits tendered on behalf of Thayli:
i)the affidavit of Mr Shane Rodney Aylmore (“Mr Shane Aylmore”) sworn 3 July 2014 (“Shane Aylmore Affidavit”);
ii)the affidavit of Spencer Aylmore (“Mr Spencer Aylmore”) affirmed 3 July 2014 (“Spencer Aylmore Affidavit”);
iii)the affidavit of Amanda Berghofer (“Ms Berghofer”) sworn 3 July 2014 (“Berghofer Affidavit”);
iv)the affidavit of Steven Haines (“Steven Haines”) dated 2 July 2014 (“Haines Affidavit”);
e)a 173 page transcript of the two days of hearing; and
f)the 20 Exhibits tendered in the two day hearing.
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by telephone, by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
At the hearing in Carnarvon evidence was given:
a)by Ms Pello-Esso on her own behalf; and
b)for Thayli by:
i)Mr Shane Aylemore who is the lessee of the Pastoral Lease known as Ella Valla Station, a director of Thayli, son of Mr Spencer Aylmore and partner of Ms Amanda Berghofer;
ii)Ms Berghofer, a pharmacist, company secretary of Thayli, and partner of Mr Shane Aylmore;
iii)Mr Haines, a voluntary relieving station manager at Ella Valla Station; and
iv)Mr Spencer Aylemore, the station manager at Ella Valla Station, and father of Mr Shane Aylemore.
In relation to the Pello-Esso Affidavit, annexed to it was an affidavit of Hugh Charles Brown dated 29 October 2014 (“Brown Affidavit”). The Court has had no regard to the Brown Affidavit because its contents are either hearsay: in relation to what Mr Brown has to say about the actual events involving Ms Pello-Esso’s work at Ella Valla Station at a time before she had met Mr Brown and in relation to the treatment of an unnamed “backpacker” allegedly treated “badly at the hands of an unscrupulous employer” (not Thayli), and in relation to this backpacker that evidence is also irrelevant, as is the evidence in relation to Mr Brown’s interaction with Fair Work Australia on behalf of Ms Pello-Esso some months after the events in issue. In relation to Mr Brown’s opinions in respect to matters of law, such as whether Ms Pello-Esso was an employee, and the application of the Pastoral Award, they are opinions which there is no evidence he is professionally qualified to give, and which are, in any event, matters for the Court to determine upon Ms Pello-Esso’s application. (see also the Court’s observations at Transcript at page 4 and 73.)
Issues
The primary initial issue to be determined in these proceedings is whether or not Ms Pello-Esso entered into an employment contact with Thayli, and was therefore an employee of Thayli. The issues which then arise if Ms Pell-Esso is an employee are whether she was an employee in the classification of FLH 5 claimed under the Pastoral Award, and whether there is proper proof of the hours Ms Pello-Esso claims to have worked.
Employment contract
In order to form a contract of employment various elements must be present, namely:
a)an intention between the parties to create an enforceable legal relationship;
b)an offer by one party and its acceptance by the other;
c)a contract supported by valuable consideration;
d)the legal capacity to make the contract;
e)genuine consent to the terms of the contract; and
f)that the contract must not be rendered ineffective by reason of conduct illegal or contrary to public policy.
C Sappideen et al, Macken’s Law of Employment (7th Edn) (Pyrmont: Law Book Co, 2011) page 96 at [4.40].
The Pastoral Award – relevant provisions
Provisions of the Pastoral Award relevant to the issue of the employment contract are set out hereunder.
Award coverage
Under cl.4.1 of the Pastoral Award it “applies to employers … in the pastoral industry and their employees in the classifications set out in this award …”.
There is no dispute that Thayli (as the operator of Ella Valla Station) is in the “Pastoral industry” as defined in cl.4.2 of the Pastoral Award.
There is plainly a dispute as to whether Thayli was an employer in respect of Ms Pello-Esso, and therefore covered by the Pastoral Award.
Definition of employee and employer
The Pastoral Award in cl.3.1 defines:
a)“employee” to mean “national system employee within the meaning of the Act”; and
b)“employer” to mean “national system employer within the meaning of the Act”.
The “Act” referred to in the definitions of “employee” and “employer” in cl.3.1 of the Pastoral Award is the FW Act.
Section 12 of the FW Act defines “employee” and “employer” as follows:
"employee" is defined in the first Division of each Part (other than Part 1-1) in which the term appears.
Section 538 of the FW Act is in Part 4-1 of the FW Act and defines the meanings of employee and employer for the purposes of s.548 of the FW Act which appears in Division 3 of Part 4-1 of the FW Act. Section 538 provides that:
In this part, employee and employer have their ordinary meanings.
Whether a person is an employee or not is a question of law: ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228; (2006) 232 ALR 69 (“Visiting Medical Officers Association”); Damevski v Giudice & Ors [2003] FCAFC 252; (2003) 133 FCR 438; (2003) 129 IR 53; (2003) 202 ALR 494; (2003) 54 AILR 100-124 (“Damevski”), and there are many factors which may point to a contract being a contract of employment, with their relative importance varying with the circumstances. Control of the employee exercisable by the employer is a prominent factor, but not the sole criterion, and is one of a number of possible indicia of employment, including but not limited to “the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and the provision of holidays, the deduction of income tax and the delegation of work by the putative employee”: Stevens v Brodribb Sawmilling Company Proprietary Limited & Ors (1986) 160 CLR 16; (1986) 60 ALJR 194; (1986) 63 ALR 513; [1986] Aust Torts Reports 80-000; CLR at 24 per Mason J (with whom, on this point, Brennan and Deane JJ agreed at CLR at 47 and 49 respectively); Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 75 ALJR 1356; (2001) 47 ATR 559; (2001) 106 IR 80; (2001) 181 ALR 263; (2001) 33 MVR 399; [2001] Aust Torts Reports 81-615; (2001) 50 AILR 4-476 at [43]-[45] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Visiting Medical Officers Association at [19] per Wilcox, Conti and Stone JJ.
Types of employment
Clause 10 of the Pastoral Award provides for full-time, part-time and casual employment as follows:
10. Types of employment
10.1 At the time of engagement an employer will inform each employee of the terms of their engagement and in particular whether they are to be full - time, part - time or casual.
10.2 Full - time employment
(a) A full - time employee is an employee who is engaged to work 38 hours per week.
(b) A full - time employee must be provided with a written statement setting out their classification, applicable pay scale and terms of engagement.
10.3 Part - time employment
(a) A part - time employee is an employee who is engaged to perform less than the full - time hours of 38 per week at the workplace; has reasonably predictable hours of work; and receives, on a pro rata basis, equivalent pay and conditions to those of full - time employees who do the same kind of work.
(b) An employee who does not meet the definition of a part - time employee in clause 10.3(a) and who is not a full - time employee will be paid as a casual employee in accordance with clause 10.4.
(c) At the time of engagement the employer and the part - time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the, week the employee will work and the actual starting and finishing times each day.
(d) Changes in hours may only be made by agreement in writing between the employer and employee. Any agreed variation to the regular pattern of work will be recorded in writing.
(e) An employer is required to roster a part - time employee for a minimum of three consecutive hours on any shift.
(f) All time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.
(g) A part - time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
10.4 Casual employment
(a) A casual employee is an employee engaged as such and paid by the hour. An employer when engaging a casual must inform the employee that they are employed as a casual, stating by whom the employee is employed, their hours of work, their classification level and their rate of pay.
(b) Shearers, Crutchers and Woolpressers will be engaged as casual pieceworkers and paid in accordance with the piecework rates prescribed by this award.
(c) A casual employee other than a casual pieceworker must be paid per hour at the rate of 1/38th of the weekly rate prescribed for the class of work performed, plus 25%.
(d) The casual loading is paid instead of annual leave, personal/carer's leave, notice of termination, redundancy benefits and the other attributes of full - time or part - time employment.
(e) Casual employees must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly.
(f) On each occasion a casual employee, other than a casual pieceworker, is required to attend for work, casual employees are entitled to a minimum payment of three hours' work at the appropriate rate.
In relation to the employment provisions of the Pastoral Award, it is sufficient in the present purposes to observe that none of its requirements in relation to employment as a full time, part time or casual employee were met, either by Thayli or by Ms Pello-Esso. In respect of Ms Pello-Esso that is not surprising as it would appear she was unaware of the existence of the Pastoral Award, until after her employment was complete In respect of Thayli it was also not surprising as it considers Ms Pello-Esso a volunteer, and not an employee, and therefor not subject to the provisions of the Pastoral Award.
Volunteer work and paid work
In essence the dispute as to whether or not Ms Pello-Esso had a contract of employment with Thayli came down to a question of whether or not she was an employee or a volunteer. Thayli argued that it was possible to have persons on a working holiday visa, such as Ms Pello-Essso, work as volunteers during the period of their first working holiday visa. For reasons otherwise set out below at [29] the Court accepts that this was the position at the time Ms Pello-Esso worked at Ella Valla Station for Thayli. That conclusion is reinforced by some legislative developments which occurred after Ms Pello-Esso worked for Thayli, and after this case was argued, but which in the Court’s view confirm that at the time Ms Pello-Esso worked for Thayli it was possible for a person to be a volunteer, without payment, and work for the period of their first working holiday visa.
The Migration Regulations1994 (Cth) (“Migration Regulations”) were amended by the Migration Legislation Amendment (2015 Measures No.3) Regulation 2015 No. 184 of 2015 and added (b) and (c) to the criteria in cl.417.211(5) of Sch.2 of the Migration Regulations (“Migration Regulations”). The effect of the amendment was that from 1 December 2015 an applicant for a second working holiday visa must be remunerated for the specified work done during the first working holiday visa in accordance with relevant Australian legislation and awards if the applicant wished to be eligible to apply for a second working holiday visa.
The Explanatory Statement issued by the Minister for Immigration and Border Protection explains the intention of the amendment as follows:
Overview of the Legislative Instrument – Schedule 5
Schedule 5 to the Legislative Instrument amends regulation 417.211(5) to ensure that the three months’ specified work, performed by participants in Australia’s second Subclass 417 (Working Holiday) visa (Subclass 417 visa) initiative to acquire eligibility for a second visa, is appropriately remunerated in accordance with relevant Australian legislation and awards.
Recent analysis indicates there is an increasing trend of second Subclass 417 visa participants being willing to accept either underpaid or non-paid workplace arrangements with Australian employers, in order to complete the requisite three months specified work in regional Australia needed to acquire eligibility for a second visa. This is contributing to incidents of their exploitation in the workplace.
The amendment also makes clear that ‘specified work’ must be undertaken on a full-time equivalent basis. This amendment reflects current departmental practice of assessing the 88 day 'specified work' requirement on a full-time equivalent work basis and thus provides legislative clarity for participants.
These amendments will only apply to specified work performed by the applicant for a second Subclass 417 visa from the legislative instrument date of commencement onwards. This ensures equity for those participants who have undertaken their specified work prior to the date of commencement but who apply for their visa after the date of commencement by allowing their specified work to remain eligible for the purposes of their second Subclass 417 visa application.
…
The amendment operates to support and protect the right of participants in the second Subclass 417 visa programme to be appropriately remunerated for the work they perform in accordance with Australian domestic law.
Conclusion
The amendments are compatible with human rights as it supports the human rights of participants in the second Subclass 417 visa programme.
The holder of a working holiday visa can therefore work in either a volunteer or paid employment capacity. As of 1 December 2015, however, where the holder of a Working Holiday Visa wishes to extend their Working Holiday visa by way of a second application only renumerated work will satisfy the criteria set out in clause 417.211(5) of Sch.2 of the Migration Regulations. Thus, the amendment does not preclude working holiday visa holders from doing unpaid work as volunteers, but if they do so during the period of their first working holiday visa they are then ineligible for a second working holiday visa.
The above amendment to the Migration Regulations confirms that both before, and after, the amendment to the Migration Regulations a person could, during the first period of their working holiday visa, work as an unpaid volunteer. That, in essence, reflects Thayli’s argument to the Court, namely, that Ms Pello-Esso that worked as a volunteer during the first period of her working holiday visa, in order to obtain a certificate of service so that she could then obtain a second working holiday visa.
Evidence re: employment contract
In some respects the manner in which Ms Pello-Esso put her argument appeared to be that because the Pastoral Award applied to work that she performed at Thayli that she was an employee and therefore entitled to the benefits of the Pastoral Award. To the extent that the argument was put in that way it was misconceived. Even if the argument for Ms Pello-Esso was not put in that way it was nevertheless common ground between the parties that Ms Pello-Esso had to be an employee before the Pastoral Award applied, and that is of course, a reflection of the law as it stands. It is therefore necessary to determine whether or not there was an employment contact between Ms Pello-Esso and Thayli, and it is to that issue that the Court now turns.
Ms Pello-Esso gave evidence that:
a)she sought work on a farm to enable her to obtain a second year on her working holiday visa;
b)she responded to an advertisement with Thayli “Station Work Visa” calling for applications to work at Ella Valla Station:
c)her application for the work reflected the wording of the advertisement on the website Gumtree, and neither the words “volunteer” nor “Carnarvon” were used in the advertisement;
d)she perceived the relationship to be entered into with Thayli was an employer-employee relationship providing farming services stipulated in the advertisement, and that the consideration she would receive in return for providing those services would be that Thayli would sign off on her service to enable her to obtain a second year of her visa, and that it was her understanding that she could only gain a second year of her working holiday visa by undertaking that farm work;
e)she was not aware at the time of any requirements under the Pastoral Award or any minimal wage or working conditions requirements;
f)on 21 January 2013 she responded to Thayli’s advertisement for “Station Work Visa” as follows:
“Dear Shane
I’m a girl from Sweden, 25 years old.
I arrived to Australia 7 dec 2012 Australia 7 dec 2012 on the one year working visa. I work as a fundraiser for a child rights organisation here in Melbourne end of February. I wish to do work at your farm in western Australia from March for 3 months, so I can extend to my 2nd year visa. I am reliable, honest, physically fit and hard worker. So please don’t hesitate to contact me for further information. I thank you for showing patience. Its appreciated.
Have a great day, Elli [mobile phone number deleted]
g)on 22 January 2013 Ms Pello-Esso received a text message from Mr Shane Aylmore offering her the role referred in the advertisement, and in which text the location of the work was first mentioned, and that Ms Pello-Esso could call Mr Shane Aylmore for further information;
h)Ms Pello-Esso says that she called straight away and was told by Mr Shane Aylmore that the property was mainly run by Mr Spencer Aylmore, who was Mr Shane Aylmore’s father, but he was too old to work and that they needed help to run the property;
i)during the telephone conversation Mr Shane Aylmore said that he would sign off on Ms Pello-Esso’s second year working holiday visa application as consideration for her services, and that he would also provide free food and accommodation;
j)Ms Pello-Esso booked a flight from Perth to Melbourne and was told by Mr Shane Aylmore that she would be collected at Perth Airport by Mr Spencer Aylmore and a Korean woman named Joslin;
k)Ms Pello-Esso says that it was her understanding (the basis for which was not explained) that relevant contractual documentation would be signed upon or soon after her arrival and that a certificate of service for the second year of her working holiday visa would be provided at the expiration of her time with Thayli, which she understood would be three months;
l)upon arrival at Perth Airport Ms Pello-Esso was met by Mr Spencer Aylmore, and he and Ms Pello-Esso travelled to a property, which she describes as the “family house” in Gingin (which is a rural area about an hour and a half north of Perth), slept overnight, and she worked on the following day in a shed in Gingin and in cleaning the house on the Gingin farm; and
m)importantly, that Mr Shane Aylmmore made it clear that the arrangement was one which was “unpaid” and that the consideration for the provision for work by Ms Pello-Esso was the certification of service for the second year of her working holiday visa and free food and accommodation for three months: Transcript, lines 44-47 and 72, lines 25-31.
On 27 February 2013 Ms Pello-Esso and Mr Spencer Aylmore drove to Ella Valla Station, and Mr Spencer Aylmore provided some old clothes for Ms Pello-Esso to work in, showed her around the work tools in the shed and indicated which vehicles she could drive.
Ms Pello-Esso says that no contractual documentation was given to her upon her arrival, but that:
a)her duties as explained by Mr Spencer Aylmore included serving him with a cup of tea in bed every morning and also making his bed in the mornings;
b)that her working hours would be from 7.00am most days, but could commence as early as 6.00am, and that she should be ready to work from 6.00am;
c)Mr Spencer Aylmore was the only other person who resided at Ella Valla Station.
Ms Pello-Esso recounts that before the Easter break in 2013 (from 27-30 April) she was instructed to paint, renovate and clean a cottage at the station to accommodate a shooting party, and that during the entire Easter break she undertook cooking and and cleaning services for the shooting party guests, and served them with breakfast, lunch and dinner.
Ms Pello-Esso describes performing duties including:
a)climbing to fix various windmills at the station which did not function properly;
b)repairing fencing at the station in very hot conditions when she was not feeling well, and during which she says that she was abused by Mr Spencer Aylmore when he told her that she was not well, alleging that he yelled at her, saying “what is wrong with you, your fucking cunt?”;
c)that she shore sheep (albeit only three or four on one day: Transcript, page 25);
d)that on the way to the sheep shearing she took the opportunity to have a conversation with Mr Shane Aylmore regarding the way that she was being treated, including not accepting the abuse from Mr Spencer Aylmore “while I worked for him for free”: Pello-Esso Affidavit at [78], but that she “stayed in continued to work alone under the conditions mentioned”: Pello-Esso Affidavit at [79], and completed the 88 days required work to meet her working holiday visa requirements.
Ms Pello-Esso says that during her time at Ella Valla Station that she was told what to do and how to do it, and when to work and when and where to go to do that work: Pello-Esso Affidavit at [81].
Annexure 5 to Ms Pello-Esso’s Affidavit: see Pello-Esso Affidavit at [87] is an extract from what she describes as the working holiday visa application form and information from the website. The working holiday visa application form extract is not signed by Mr Shane Alymore, but nominates him as the contact “for work verification”, and nominates the type of work as “Station Hand”. Together with and seemingly part of the visa application form is a document headed “Evidence of Employment” which says that the primary supporting evidence may include a bank statement for the entire period of claimed specified work, and that the bank statement “is ideal if you worked in a voluntary capacity ie. unpaid work such as WWOOF (Willing Workers On Organic Farms)”, the Court infers that the provision of a bank statement in respect of specified work was necessary to prove payment where payment was made for specified work, but also as proof that persons had worked as volunteers for no payment in specified work where that was the case.
Mr Shane Aylmore’s evidence was that:
a)just prior to 21 January 2013 he has posted an advertisement on Gumtree under the section “Volunteer Work Section”;
b)although he was unsure of the precise working of the text of the advertisement, the text of advertisements previously used was as follows:
· We are seeking a volunteer looking to extend their second year visa to assist us for three months on a station 90 km from Carnarvon we will Supply accommodation and food in exchange for farm work and household duties. This is a great opportunity for international travellers to experience the outback lifestyle and everything is has to offer. If you are interested, please contact us on…
c)he received an email from Ms Pello-Esso in terms set out at [34(f)] above, which was followed by phone contact in which he advised her of the conditions at Ella Valla Station, and made it very clear that “this was a voluntary unpaid position”: Shane Alymore Affidavit at [6] (evidence with which Ms Pello-Esso, under cross-examination, agreed: Transcript, page 72, line 27) and that Ms Pello-Esso expressed her desire to come to Western Australia and accept the position;
d)whilst on the phone he advised Ms Pello-Esso of the conditions at Ella Valla Station in terms of the rules that were posted on the fridge in the kitchen in Ella Valla Station for the duration of Ms Pello-Esso’s stay at Ella Valla Station, an extract of those conditions being as follows:
We welcome you to Ella Valla Station. We hope you enjoy this Australian Outback Experience. It can be as fun as you make it. Please feel at home and treat it as your own.
As a WOOFER there are certain things you must know, in order to ensure everything runs smoothly. Please remember, this is a work place. Laziness, bad attitude, obscene language or drunken behaviour is not welcome. Generally, there will be children around, so please be considerate.
Your responsibilities on the station require house duties and meal preparation 7 days a week [see below]. You will have other duties around the house, and if needed, Spencer may require you to assist him with other work on the station. Please be prepared for the heat [take plenty of water and food with you].
Meals:
§ meals are an important and social time at the station, it is important that we all eat together and help with the preparation and clean up.
· Breakfast is between 7-7.30am
· Lunch is between 12-1pm
· Dinner is served between 6-7pm
§ No internet serving at meals please
§ Please come to the table neat and tidy.
Alcohol:
§ In Australia tradition, we are happy to supply a couple of cans of beer in the evening, please do not abuse this privilege and ruin it for others. If you want spirits or more beer, feel free to purchase extra from town…
Internet:
§ Internet is a satellite system and has a limited amount of downloads, it is there to work for work purposes, and will be activated for personal use every now and then. But please be cautious of download size. NO movie downloads, and no surfing the net during meal times…
Daily House Duties (7 days)
§ This is just part of living on the smaller station, and these jobs must be completed every day;
· Meal preparation must be shared among everyone;
· Light the donkey every night for showers
· Clean the pool daily [and make sure the correct chemicals are added when necessary]
· Water the lawns and trees at both house daily, generally in the evenings
· General clean up
· Keep the kitchen/ bathroom/house clean daily
Duties as required
§ Empty rubbish bins;
§ mow laws
§ clean bathrooms/kitchen/house thoroughly once weekly
§ wash sheets, bath towels and kitchen tea towels once weekly
§ work away from home on the station up to 2 days a week if required.
Your other duties include:
§ Painting;
§ gardening
§ collecting firewood
§ cleaning up the verandas in both houses
§ general yard / shed work
DO NOT touch vehicles, motorbikes, and rifles without permission
….
e)that in Ms Pello-Esso’s statement to Fair Work Australia she admitted that “this was not a paid position”: Shane Aylmore Affidavit at [9];
f)the working arrangement entered into was recognised by the Department of Immigration and Border Protection (as it then was) (“Department”) as qualifying for the issue of the second year visa in form 1263 at Annexure 4 where it is said that:
specified work:
· does no need to be paid
· example:
· work undertaken as a volunteerr or through the Willing Workers On Organic Farms (WWOOF) scheme may also qualify if the work you undertook falls within the specified work definition above
g)although Ella Valla Station was not “organic”, the model for voluntary employment Ella Valla Station was based on guidelines set out in the Australian WWOOF handbook, based on 4 to 6 hours a day;
h)Ms Pello-Esso was free to leave anytime;
i)in Ms Pello-Esso’s statement to Fair Work Australia she said as follows:
9. the consideration that I would receive in return for proving for the services would be that the employer would sign of on my second year visa.
10. I further understood that I could only gain my second year working holiday VISA by undertaking such farm work
Mr Shane Aylmore’s Affidavit also contains the text messages between him and Ms Pello-Esso prior to her arriving in Perth, and the Court notes that:
a)on 22 January 2013at 2.58am Mr Shane Aylmore in a text to Ms Pello-Esso said “the work is easy, a bit of cooking and cleaning, we supply your food and hopefully a great experience on an Australian station”;
b)on 22 January 2013 4.08am Ms Pello-Esso replied including the following “I’m more than happy to come over and help at your farm at March”;
c)on 21 February 2013 at 4.04am Mr Shane Aylmore (in the course of giving directions to Ms Pello-Esso as to how to meet Mr Spencer Aylmore, at the airport) said as follows “Looking forward to sharing Australian county life with you”.
Mr Shane Aylmore has also completed a Certificate 4, Coordination of Volunteers Training Course with Volunteering WA: Shane Aylmore Affidavit at Annexure 6.
Ms Berghofer gave evidence that in her capacity as company secretary she wrote and posted the Gumtree advertisement titled “Station work for Visa “ to which the applicant responded and that it was posted in the following category “Jobs-Farming Veterinary-VOLUNTEER”. The text of the advertisement Ms Berghofer said she placed is essentially the same as set out at [41(b)] above.
Ms Berghofer says that she many discussions with Ms Pello-Esso while she was staying at Ella Valla Station, and that at “the very beginning” she discussed with her the fact that the work at the station “was volunteer and non-paid”, and that Ms Pello-Esso never once asked Ms Berghofer, as company secretary, about pay whilst she was at the station, and that she was working as a volunteer to get her second year working holiday visa signed off, which is an accepted practice: Ms Berghofer’s Affidavit at [8].
Consideration – employment contract
It is essential to the creation of the legal relationship of contract that the parties have a mutual intention to create a legally enforceable bargain. In this case, the Court is satisfied that there was no such mutual intention.
The Court is not satisfied that it was the intention of Ms Pello-Esso to be employed by Thayli, let alone employed under the terms of the Pastoral Award, as an FLH 5 at Ella Valla Station. It is apparent from Ms Pello-Esso’s text messages that she was not contemplating employment, but rather wanting to “help” (that is, in a sense, to volunteer). Moreover, it is plain that her intention was to work to satisfy the pre-requisite for a second working holiday visa, rather than to work for remuneration or payment under the Pastoral Award. In the Court’s view that lack of intention is reinforced by her subsequent conduct; Ms Pello-Esso (who has a law degree) never demanded payment, at any time during the 3 months that she was at Ella Valla Station, and it does not appear the subject was even raised, let alone the subject of a demand of any kind, and Ms Pello-Esso did not seek payment until several months after she had completed her period of work at Ella Valla Station, or for any other form or method of remuneration or payment save for the provision of food, drink and accommodation.
Even if it was Ms Pello-Esso’s intention to enter into a contract of employment with Thayli, that does not assist her because there was no mutual intention. Insofar as the intention to enter into a contract is required to be mutual, the Court accepts that it was never the intention of Thayli (manifested through its director Mr Shane Aylmore and company secretary Ms Berghofer) to enter into a contract of employment with Ms Pello-Esso. The Court accepts the evidence of Mr Shane Aylmore and Ms Berghofer that it was always the intention of Thayli to have Ms Pello-Esso work as a volunteer at Ella Valla Station. That is also consistent with the:
a)contemporaneous materials, including:
i)the job advertisement;
ii)the “rules” at Ella Valla Station, which the Court accepts were explained to Ms Pello-Esso both by Mr Shane Aylmore prior to her arrival, and by Ms Berghofer after her arrival;
iii)the form 1263 produced by the Department of the purposes of working holiday visa;
iv)the text of various SMS messages between Mr Shane Aylmore and Ms Pello-Esso indicating Ms Pello-Esso’s willingness to “Help”) at Ella Valla Station, and Ms Shane Aylmore’s description of what was forthcoming and a “sharing [of] Australian Country life”;
b)the fact that the evidence indicated that only volunteers were used at Ella Valla Station, including a voluntary relieving station manager, Mr Haines, who gave evidence in the proceedings;
c)the relevant provisions of the Migration Regulations allowing for persons on a working holiday visa to work as volunteers; and
d)Ms Pello-Esso agreeing that the work was to be performed “unpaid” and in return for “free” accommodation and food for three months: Transcript, page 72.
The Court also accepts that whilst Thayli was not part of any organised volunteer arrangement, such as the WOOFER program, it utilised, in a loose way, the guidelines for such programs. The Court also notes that Mr Aylmore had competed a course in relation to the coordination of volunteers which would be of assistance with and consistent with the hosting of volunteers at Ella Valla Station.
In all of the above circumstances, the Court is not satisfied that either Ms Pello-Esso or Thayli had a mutual intention to create a contract of employment, and particularly so with Thayli. In those circumstances, there was no contract of employment between Ms Pello-Esso and Thayli and therefore no foundation for the application of the Pastoral Award.
Based on the facts, there was also no offer or acceptance in terms for Ms Pello-Esso to be engaged as a FLH 5 under the Pastoral Award, and no consideration for a contract of employment in those terms, or any other terms. Indeed, Ms Pello-Esso’s evidence was that the primary consideration for her services was Thayli signing of on her certificate of services which would enable her to obtain a second holiday visa (and would seemingly allow her to work professionally), and that in return she would work unpaid.
The Court has also considered whether or not Ms Pello-Esso might have become and employee during the course of her time at Ella Valla Station. In that regards, the Court notes that there was a reasonable degree of control and supervision in relation to tasks such as fencing and windmill fixing which are not inconsistent of with an employer-employee relationship, but also not inconsistent with the degree of control and supervision which would be required of a volunteer to whom Thayli owed a duty of care, particularly one such as Ms Pello-Esso who had no prior experience in the Pastoral Industry, in particular in relation to task such as fencing and windmill maintenance and repair on an outback station. In this case, the question of control and supervision is not decisive. The Court notes that there was no remuneration in a monetary sense, and hence there was also no deduction of income tax, and that that was because Ms Pello-Esso agreed to work unpaid, as a volunteer. The Court is also not persuaded (primarily for reasons which will appear at [59] below) that the hours of work were entirely fixed or regular, or that there was an obligation to work imposed upon Ms Pello-Esso, although there can be little doubt that Ms Pello-Esso felt the necessity to work in order to ensure that she received a certificate for the work performed so that she could satisfy the prerequisites for a second working holiday visa. Having regard to the relevant factors, and to the evidence overall which the Court considers was not indicative of there being a contract of employment in place between Ms Pello-Esso and Thayli during the time she was at Ella Valla Station, the Court is not satisfied that Ms Pello-Esso became an employee during her time at Ella Valla Station.
In all of the above circumstances, the Court is not satisfied that there was contract of employment to which either Ms Pello-Esso or Thayli were parties, either for the purpose of Ms Pello-Esso being employed as an FLH 5 under the Pastoral Award, or otherwise. It follows that Ms Pello-Esso’s application cannot succeed, and must be dismissed.
Relevant classification
The relevant classification claimed by Ms Pello-Esso as being applicable to the work that she says she performed is that of a farm and livestock hand, level 5 under the Pastoral Award. The Pastoral Award defines a “Farm and livestock hand level 5 (FLH5)” at cl.27.5 as follows:
(b) Senior station hand is an employee who:
• · has at least two years' experience in the industry; and
• · is capable of performing efficiently without supervision any of the tasks reasonably required of them.
· Indicative of the tasks which an employee at this level may perform are the following:
• · drive, maintain and operate farm vehicles and machinery;
• · animal husbandry;
• · stock handling;
• · irrigation work; and
• · use of chemicals.
Pastoral Award defines the “Pastoral Industry” to mean “all employers or employees who are engaged in or in connection with” the following:
a) the management, breeding, rearing or grazing of livestock…
b) the shearing and crutching of sheep and the classing of the pressing of wool on farms
…
g) … fencing…onsite of farms or properties…
There can be no doubt that Ella Valla Station is engaged in the Pastoral Industry as defined in the Pastoral Award. There is, however, no evidence, or no sufficient evidence, that Ms Pello-Esso met the definition of Senior Station Hand in cl.27.5(b) of the Pastoral Award, in that:
a)there is no evidence that Ms Pello-Esso has at least two years’ experience in the industry, and in that regard her statement that she “grew up on a farm in Sweden and… had great experience and skills of farming work”: Pello-Esso Affidavit at [8], does not provide evidence of the required two years’ experience in the Pastoral Industry. Further, that experience, in Sweden, would appear to have been on a family hobby farm: Transcript page 28, and the Court’s view cannot be equated to working in the Pastoral Industry in Australia;
b)there is no evidence at all that Ms Pello-Esso was capable of performing efficiently without supervision any of the tasks which might constitute work for the purposes of the definition of Senior Station Hand in the Pastoral Industry which were required of her, and it would appear that any fencing and windmill repair work that was carried out was carried out under the supervision of Mr Spencer Aylmore, and that Ms Pello-Esso was not allowed to drive or turn-off a loader which was operated at Ella Valla Station: Transcript page 21.
In the above circumstances, even if there was a contract of employment (which there is not for reasons set out above at [46]-[53]) between Ms Pello-Esso and Thayli, Ms Pello-Esso’s claim would have failed because she did not fit the definition of “Senior Station Hand” in cl. 27.5(b) of the Pastoral Award, and is therefore not entitled to be paid at the FLH 5 rate of pay.
Proof of time worked
The evidence of time allegedly worked by Ms Pello-Esso during her 88 days at Ella Valla Station appears to be derived from the Diary Calendar, which is a photocopy of a one page calendar which forms part of Annexure 7 to the Pello-Esso Affidavit (page 45) with the hours allegedly worked each day, it is fair to say, scribbled , in very small print, next to the relevant day (which is also in very small print), of the relevant months, being February, March, April and May 2013, appearing in the top half of a single A4 page in the photocopy (which is written in Swedish). Were it not for the fact that the start time and finish times recorded on the Diary Calendar are also recorded in a document annexed to the Form 5, being seemingly, a document prepared by or for the Fair Work Ombudsman, which also records the hours, it would simply not have been properly possible to determine Ms Pello-Esso’s start and finish times for each day from the Diary Calendar copy. The Court notes that the Diary Calendar does not indicate break times, but merely start and finish times as alleged by Ms Pello-Esso. By contrast, the Fair Work Ombudsman document (“Fair Work Diary”) annexed to the Form 5 does include a single break for each day said to have been worked.
There are number of difficulties with the days said to have been worked, and the times on those days said to be worked, in the information provided by the Diary Calendar and the Fair Work Diary. They include:
a)Ms Pello-Esso claims to have worked from 6.00am to 7.15pm on Thursday, 28 February 2013 with a break from 12.00pm to 12.30pm. The evidence of Mr Haines, who was relieving Station Manager in Mr Spencer Aylmore’s absence, was that Ms Pello-Esso undertook familiarisation of the Ella Valla Station layout for the first few days, while the evidence of Mr Spencer Aylmore was that Ms Pello-Esso was shown around the homestead and pending routine duties no work was carried out by her, and that she was advised that everyone was going to the “Blow Holes” for the Labour Day long weekend: Haines Affidavit at Annexure 1, Spencer Affidavit at [5];
b)Mr Haines further evidence is that no work was done Ms Pello-Esso on 27 or 28 February 2013 by Ms Pello-Esso at Ella Valla Station, and that on Wednesday, 27 February 2013 after Ms Pello-Esso had arrived she was shown to her accommodation and afforded the rest of the day to unpack, relax by the pool and settle in, and that on Thursday, 28 February 2013 she was shown around the station until lunch time, then after lunch everybody had the afternoon off until 4.00pm, and that Ms Pello-Esso, Mr Haines and Ms Kim and Mr Parker spent the time relaxing by the pool. Mr Haines says that on Friday, 1 March 2013 people packed for the long weekend at the Blow Holes and that they left Ella Valla Station at about 9.00am, and that he remained at Ella Valla Station; Haines Affidavit at Annexure [1];
c)for the period from Friday, 1 March 2013 to Monday, 4 March 2013 Ms Pello-Esso claims to have worked from 3.30am to 4.00pm on the Friday with a break from 9.00am to 9.30am, from 8.00am to 6.30pm on the Saturday, with a break from 12.00pm to 2.00pm, not to have worked on the Sunday, and to have worked from 6.00am to 6.30pm on the Monday public holiday, with a break from 12.00pm to 1.00pm;
d)Mr Spencer Aylmore’s evidence is that on Friday, 1 March 2013 breakfast was had at Ella Valla Station at about 7.30am and Ms Pello-Esso assisted in organising a vehicle or vehicles by packing bedding, food, drinks and water, and that no one was instructed to commence work at 3.00am, and that at about 8.30am on Saturday, 2 March 2013 they departed Ella Valla Station (with two vehicles) for Carnarvon, where Ms Pello-Esso assisted in shopping for extra food, and also met Mr Shane Aylmore and Ms Amanda Berghofer for the first time. They then left for the coast, and arrived at the Blow Holes, that afternoon. Mr Spencer Aylmore says that Sunday 3 March 2013 and Monday 4 March 2013 were spent swimming, relaxing, and that all “duties” were shared, except for cooking which was done by Mr Shane Aylmore and Mr Parker, and that in the afternoon of Monday, 4 March 2013 Ms Pello-Esso and he returned to Ella Valla Station with a Ms Joslin Kim, a Korean backpacker;
e)Ms Berghofer’s evidence is that Ms Pello-Esso arrived “at our place” in Carnarvon on the morning of 2 March 2013, and she spent a long time talking to Ms Berghoger in the lounge room, and in particular about her recent graduation from law school and travel, but once the “boys were ready with the cars we went to the shops to get our food for the weekend, then headed to the Blow Holes”: Berghofer Affidavit at [11]. Ms Berghofer said that Ms Pello-Esso was excited about going to the beach, where all meals were cooked by Mr Shane Aylmore and Mr Parker, and that Ms Pello-Esso did not help other than general clean up after the meals, which was in any event a group effort and definitely not intense: Berghofer Affidavit at [14];
f)Mr Haines says that he went to the Blow Holes arriving at about midday on Sunday 3 March 2013, that there was a family atmosphere with everybody pitching in to prepare meals and wash up and that afternoon he, amongst others, spent the afternoon teaching Ms Kim and Ms Pello-Esso how to fish, and that for the rest of the day and evening Ms Pello-Esso joined them in the holiday spirit. On 4 March 2013 Mr Haines says that after a late breakfast, Mr Spencer Aylmore and Ms Kim and Ms Pello-Esso returned to Ella Valla Station, and that he did not see Ms Pello-Esso again as he returned to Perth;
g)Mr Haines also said Ms Pello-Esso’s claim to have begun work at 3.30am on Friday, 1 March 2013 is ridiculous, as it would have been dark, there would have been no power (Ella Valla Station has power from a generator only), and that in any event that no work was allocated for that time of the day, and that, further, Ms Pello-Esso did not do “station work” on 27 or 28 February or 1 March 2013;
In these circumstances, the Court prefers the evidence of Mr Spencer Aylmore, Ms Berghofer and Mr Haines (in particular the latter two), and concludes that Ms Pello-Esso did no work, and in particular no work as a senior station hand for the purposes of cl.27.5(b) of the Pastoral Award for the period from 1 to 4 March 2013 inclusive. Packing to spend a long weekend at the beach, and time spent at the beach, is not either work, nor the type of work to be performed by a Senior Station Hand covered by the Pastoral Award.
In the circumstances, the Court is also not satisfied that Ms Pello-Esso performed any work of a kind covered by the definition of Senior Station Hand under the Pastoral Award on 27 or 28 February 2013. Further, in relation to 26 February 2013 it does not appear that, that work was work as a Senior Station Hand under the Pastoral Award.
The evidence concerning the breaks claimed by Ms Pello-Esso is unsatisfactory. As noted above the Diary Calendar has no breaks in it, and it is the only allegedly contemporaneous record of hours worked which is before the Court. When questioned about this at the hearing, by the Court, Ms Pello-Esso said that the Diary Calendar was her only contemporaneous record of hours worked, something that she confirmed twice, and in between seemed to suggest that she had not specifically gone through the Diary Calendar when making a “complaint” to the Fair Work Ombudsman and that there may have been “some misreading’s”: Transcript Page 60. Ms Pello-Esso then claimed that the reason the Diary Calendar did not have meal times was because “you didn’t have any”: Transcript page 60. When questioned as to how she arrived at various meal times commencing at 12.00pm to 12.15pm to 12.30pm (and 9.00am on 1 March 2013), Ms Pello-Esso then said she had two calendars, the second calendar recording meal breaks (“Break Calendar”). When asked where the Break Calendar was she said that she did not have it, although it was a calendar that she had taken a photo of when she left Ella Valla Station: Transcript page 60.
There is inconsistency between the claim made on 29 April 2013 with respect to the break, where the applicant claims that there was a lunch hour between 12.00pm and 1.00pm. However, the Audio File for that day contains a very lengthy audio file which begins with the words “its 13.15 to be more precise”. It is relevant to observe that 29 April 2013 was Good Friday. The audio extract which commences at 1.15pm on Good Friday runs from page 14 to page 23 of the transcript of The Audio Files. Those pages take between 3 and 4 minutes each to read, and the Court can estimate that the recording is therefore between 25 and 30 minutes long. That means that the lunch break would have extended to at least 1.40pm. During the hearing Ms Pello-Esso admitted that this entry was not correct, or was not necessarily accurate, and then said that the “photo [of the Break Calendar] was not obvious”: Transcript page 76. The Court observes that if the Break Calendar from which the break times were said to be taken was anything like the Diary Calendar which is in evidence, then it would be very easy to make a mistake as to the times said to be recorded therein.
Ms Pello-Esso says that she took the break times from the Break Calendar which she photographed and which she no longer has, but from which she recorded the break times for the purposes of her claim. On 29 April 2013 she claimed in evidence that she commenced lunch at 1.00pm because her attention was drawn to the audio file recordings saying that she was started recording at 1.15pm: Transcript page 75. Plainly that does not tally with the claim made in the Fair Work Diary. In part that may be because, as the Court observed at hearing “she now says she is not sure the times are accurate because she couldn’t read the photo” of the Break Calendar which is not in evidence: Transcript, page 76.
Mr Spencer Aylmore gave evidence that it was customary to start work at 8.00am on Ella Valla Station and to finish prior to the hottest part of the day at approximately 1.00pm, and that all staff, himself included, are encouraged to rest during the hot period of the day or relax around the pool, and that there were many times Ms Pello-Esso was sleeping in a swag on the homestead veranda: Spencer Aylmore Affidavit at [9]. Mr Spencer Aylmore was not cross-examined on his evidence as to the nature of the working day and hours worked at Ella Valla Station. Mr Haines evidence was that at the time of the year when Ms Pello-Esso was on Ella Valla Station the day started at 7.00am in the kitchen for breakfast, and that work usually commenced at 8.00am and went to between 12.00pm and 1.30pm depending on the nature of the work to be performed and the distance to be travelled. Mr Haines then says that Mr Spencer Aylmore would have a sleep until about 3.00pm, and that “the backpackers have this time off also as it is too hot to work at this time of the year”, and that from about 4.00pm the generator is turned on and meal preparation and other domestic duties around the homestead are conducted by visitors and backpackers: Haines Affidavit at Annexure 1. Ms Berghofer, who worked at Carnarvon as a pharmacist during the week, and came to Ella Valla Station on the weekends, but also some week days, and said that she “found the applicant sleeping or reading on the outside bed in the early afternoon. This was a regular occurrence, both accepted and encouraged by Spencer, as due to the heat, work was only ever done in the mornings” (with a few exceptions as to planned day trips made away from the homestead) and that everyone “had this same treatment...everyone napped, swam and relaxed in the earlier afternoon, the hottest part of the day”: Berghofer Affidavit at [21], and that Ms Berghofer never witnessed the applicant working after 4.00pm when she was there: Berghofer Affidavit at [23]. Ms Berghofer was not cross-examined on [21] and [23] of the Berghofer Affidavit.
In cross-examination Mr Haines confirmed the import of his evidence that the day usually started at Ella Valla Station at 7.00am for breakfast, that there was a discussion about the work to be performed, and that people left between 8.00am and 8.30am to perform the work that needed to be done, and that during the afternoon Mr Spencer Aylmore has “a nap” and “everyone knocks off” until about 4 or 5.00pm when everyone has to get “ready for tea and we all chip in and light the donkey, and you know, do what we have to do”: Transcript page 133. The “donkey” is a hot water system: Transcript page 133.
It suffices to observe that, that in relation to the issue of breaks, evidence of Ms Pello-Esso was contradictory and unsatisfactory, and in the Court’s view is not sufficient to establish the times of the meal breaks now claimed. In the Court’s view the evidence as to the nature of the breaks during the day at Ella Valla Station of Mr Spencer Aylmore, Ms Berghofer, and Mr Haines is to be preferred to that of Ms Pello-Esso. The evidence of the former three is relatively consistent as to a break being taken sometime from, or after, 1.00pm each day until sometime around 4.00pm, and most notably that Ms Spencer Aylmore, who was 63 turning 64 during the relevant period: Transcript page 151, took a nap in the afternoon, and that others relaxed during this time. That evidence was consistent and from a common sense point of view understandable given the midday heat in the Gascoyne region in Western Australia, at that time of year.
Ms Pello-Esso’s records as to time worked are plainly not accurate, at least in the case of the times spent at the Blow Holes. The Court also does not consider that her claims as to the break times is accurate. Certainly, that is the case with respect to 29 April 2013, admitted by Ms Pello-Esso. Furthermore, she admitted that the Break Calendar from which allegedly took the break times was not easy to read, and from that the Court infers that there may be other mistakes in any event. Importantly, the evidence as to the breaks (and in particular, the claimed length of the breaks which range between a half hour and an hour and a quarter) is simply not consistent with what would appear to be the normal pattern of the working day at Ella Valla Station. In those circumstances, the Court does not accept that the times claimed to have been worked each day at Ella Valla Station by Ms Pello-Esso are accurate. In those circumstances, even if Ms Pello-Esso were an employee, and even if she was employed as a FLH 5 under the Pastoral Award (neither of which are the case for reasons set out above in [56]), the Court would not have been able to calculate the times worked by Ms Pello-Esso accurately, or at all, because of the inaccuracies in the claimed break times. Thus there would have been no sufficient proof of the hours worked.
Conclusion, orders and costs
The Court has concluded that Ms Pello-Esso has not established that she was employed by Thayli, and that her application must therefore be dismissed. Further, the Court is not satisfied that Ms Pello-Esso would, had she been employed, have been employed as a Senior Station Hand as defined in the Pastoral Award. Further, the Court is not satisfied as to the proof of the times allegedly worked, or the breaks taken, by Ms Pello-Esso.
In the above circumstances it follows that there will be an order dismissing Ms Pello-Esso’s application.
Because this is a matter to which s.570(2) of the FW Act applies it is a very clear exception to the normal rule in legal proceedings that costs follow the event: Construction, Forestry, Mining and Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245. The costs referred to are however the costs incurred as a result of professional representation, and are not costs generally incurred by a party in relation to the litigation. In this case neither party was professionally represented, a position not inconsistent with s.548(5) of the FW Act, and in the circumstances neither party has incurred costs of kind which the Court might order the losing party to pay to the successful party. In the circumstances, there will be no order as to costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 13 September 2019
Key Legal Topics
Areas of Law
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Employment Law
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Contract Law
Legal Concepts
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Offer and Acceptance
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Intention
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Breach
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Remedies
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