Ram v D&D Indian Fine Food Pty Ltd
[2015] FCCA 389
•27 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAM v D&D INDIAN FINE FOOD PTY LTD & ANOR | [2015] FCCA 389 |
| Catchwords: INDUSTRIAL LAW – Underpayment of salary and other benefits – cross-claim – alleged abandonment of employment – assessment of conflicting evidence – assessment of loss – observations on the integrity of the class 457 visa programme. |
| Legislation: Criminal Code 1995 (Cth), s.271.2 |
| Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 Dowling v Kirk [2007] FMCA 2106 Fair Work Ombudsman v AM Retail Solutions and Anor (No 4) [2010] FMCA 525 |
| Applicant: | DULO RAM |
| First Respondent: | D&D INDIAN FINE FOOD PTY LTD |
| Second Respondent: | DIVYE KUMAR TRIVEDI |
| File Number: | SYG 1759 of 2013 |
| Judgment of: | Judge Driver |
| Hearing dates: | 20, 22 August, 15 September, 7 November 2014 |
| Date of Last Submission: | 19 January 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Y Shariff, with Ms J D Williams |
| Solicitors for the Applicant: | Clayton Utz, pro bono publico |
| Counsel for Respondents: Solicitors for Respondents: Second Respondent appeared in Person and on behalf of the First Respondent, with leave, on 7 November 2014 | Mr T Rogers 20-22 August, 15 September 2014 Mitry Lawyers |
ORDERS
The Court declares that the first respondent breached the Restaurants Employees (State) Award (AN120468) and the contract of employment in relation to ordinary hours of work, overtime, Saturdays and Sundays, public holidays and annual leave loading.
The Court declares that the second respondent is liable as an accessory for the breaches identified in order 1.
The Court declares that the first respondent underpaid the applicant’s superannuation entitlements.
The Court declares that the first respondent is liable to compensate the applicant, pursuant to s.720 of the Workplace Relations Act 1996 (Cth) (as it continues to apply by virtue of the Transitional Act) in respect of the underpayments arising from the contraventions of the Award.
The Court declares that the first respondent is liable to pay interest to the applicant, pursuant to s.722 of the Workplace Relations Act and s.76(2) of the Federal Circuit Court of Australia Act 1999 (Cth).
The Court declares that the second respondent is liable in tort for the underpayments resulting from the conduct of the first respondent in breach of the contract of employment.
The respondents are to pay to the applicant the sum of $125,431.22 within 60 days.
The respondents are to pay interest up to judgment in the following amounts:
(a)$57,408.97 up until 7 November 2014; and
(b)$23.18 per day thereafter.
The cross-claim by the first respondent filed on 20 March 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1759 of 2013
| DULO RAM |
Applicant
And
| D&D INDIAN FINE FOOD PTY LTD |
First Respondent
| DIVYE KUMAR TRIVEDI |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
By application filed on 29 July 2013 and statement of claim filed on the same day, the applicant, Mr Ram, seeks relief under the Workplace Relations Act 1996 (Cth) (Workplace Relations Act) and, to the extent necessary, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) and the general law in relation to alleged underpayment of salary, failure to pay annual leave entitlements and breach of contract.
Mr Ram has been represented pro bono by his solicitors and counsel upon referral from the non government agency Anti-Slavery Australia. He had earlier been supported by the Red Cross who had referred him to Anti-Slavery Australia.
In responses filed on 11 September 2013, the first respondent (the company) and the second respondent (Mr Trivedi) resist all of the claims made and make claims of their own. The respondents’ cross-claim against Mr Ram for allegedly abandoning his employment and breaching his contract of employment. They further allege a conspiracy to injure the company. Mr Ram filed a defence to the cross-claim on 28 April 2014. He also filed a reply on the same day.
The dispute between the parties could not be more stark. Mr Ram presents his case as a most egregious breach of the industrial legislation as well as a gross abuse of the class 457 visa programme. He points to an earlier criminal prosecution of Mr Trivedi arising out of the events complained of as well as an investigation by the Fair Work Ombudsman (FWO). He characterises the respondents’ defence of his claim as one based upon lies and fabrications. He asserts that there is no shred of support for the cross-claim. For their part, the respondents attack the credibility of Mr Ram and seek to assert that the earlier criminal prosecution and FWO investigation foreclose the present claim.
The proceedings have had a somewhat protracted and complex procedural history. I initially ordered mediation, which proved fruitless. There were interlocutory disputes, in particular over conflict between the parties about efforts to obtain documents. The respondents changed their legal representation twice. During the course of the trial of the matter, Mr Trivedi dismissed his legal representation and the matter was completed with Mr Trivedi representing himself as well as the company. Mr Trivedi has proved to be very vigorous in defence of his interests and those of his company.
Mr Ram is 45 years old.[1] He is an Indian national.[2] He is functionally illiterate and has poor English speaking skills. Through a mutual acquaintance, Mr Ram was approached by Mr Trivedi to work in Australia as a cook. Mr Ram, who lived in very modest circumstances in India, and who has a wife and two children to provide for, accepted the offer of employment.
[1] Mr Ram’s Affidavit affirmed 30 May 2014 at [6].
[2] Mr Ram’s Affidavit affirmed 30 May 2014 at [6].
At the time, Mr Trivedi was a director of the company.[3] The company carried on a business operating as an Indian restaurant located at 255 Rowe Street, Eastwood, in the State of New South Wales. The business traded as Mand’s Indian Restaurant (the Restaurant). The respondents claim that they approached Mr Ram about working at the Restaurant because they could not find any suitable cooks in Australia.
[3] ASIC Current Company Extract for D&D Indian Fine Food Pty Ltd.
The company, on behalf of Mr Trivedi, organised Mr Ram’s move to Australia. Mr Trivedi sponsored Mr Ram on a Temporary Business entry (Long Stay) (Subclass 457) visa (the 457 visa) as a skilled worker,[4] namely, as a cook.[5]
[4] A 457 visa is only available for skilled employees, and skilled employees includes cooks and chefs: IMMI 14/049 Specification of Occupations, a person or body, a country or countries; Schedule 1, the Skilled Occupation List.
[5] Exhibit DR1, p.369. See further Exhibit DR1, p.403 (Mr Ram’s tax return for the 2008 financial year, which described Mr Ram’s occupation as a Cook); letter dated 17 February 2009 from Sreenivas Kuchi of VINS Taxation Services (FOI 69).
The circumstances leading to Mr Ram’s migration to Australia involved a criminal enterprise to which Mr Trivedi pleaded guilty. Mr Trivedi was convicted under s.271.2(1B) of the Criminal Code 1995 (Cth) (Code) of organising Mr Ram’s entry into Australia in circumstances where he was reckless as to whether Mr Ram would be exploited by Mr Trivedi.[6] Mr Ram’s case is that exploitation is in fact what occurred. Mr Ram claims that he was not provided with the basic conditions to which he was entitled under applicable workplace laws and was additionally exploited during the course of his employment (though he conceded that it was for the Court to determine the full extent of this exploitation to determine his present claims).
[6] Exhibit DR1, p.265-276 (R v Divye Kumar Trivedi, Unreported (NSWDC, 8 May 2012), Judge O’Connor).
Perhaps surprisingly, some facts in the proceedings are not in dispute. Some may be drawn from those facts which were agreed in the criminal sentencing proceedings. In the sentencing judgment for Mr Trivedi’s conviction, Judge O’Connor found that, amongst other things, the following facts were both not in dispute and proved beyond a reasonable doubt:[7]
[7] Exhibit DR1, p.265-276 (R v Divye Kumar Trivedi, Unreported (NSWDC, 8 May 2012), Judge O’Connor pp.2-4). These findings of undisputed facts are admissible for the truth of the existence of those facts, as they are relevant, not otherwise excluded under the Evidence Act 1995 (Cth) and do not fall within the scope of s.91 of the Act (See Ainsworth v Burden [2005] NSWSCA at [109]).
a)Mr Ram worked as a cook in India;
b)Mr Trivedi, and his family based in India, made the arrangements for Mr Ram’s 457 visa and entry into Australia;
c)Department of Immigration records state that Mr Ram would be paid a remuneration package of $45,616 with a base salary component of $41,850;
d)Mr Ram was fluent in spoken Hindi and Punjabi. He had only a very basic understanding in spoken English and only a basic understanding of written Hindi and Punjabi;
e)Mr Ram arrived in Australia on 3 August 2007, was met by Mr Trivedi at the airport, and taken to the Restaurant;
f)Mr Trivedi took possession of Mr Ram’s passport, and this was ultimately located at Mr Trivedi’s home during the execution of a search warrant on 18 December 2008;
g)Mr Ram commenced work at the Restaurant on 4 August 2007;
h)Mr Ram ate most of his meals at the Restaurant;
i)Mr Ram was told that he could not leave Australia unless he repaid Mr Trivedi $7,000, being the cost of bringing Mr Ram to Australia. Mr Trivedi accepted that this amounted to a threat within the meaning of the Code, causing Mr Ram to believe that he was unable to leave his work at the Restaurant until the 457 visa period ended;
j)Mr Ram did not give any money to Mr Trivedi in satisfaction of the debt of $7,000;
k)in January 2011, Mr Ram was granted a witness protection (trafficking) visa,[8] granting him and his family permanent residence in Australia;
[8] Mr Ram’s Affidavit affirmed 30 May 2014 at [142] confirms this visa was a Witness Protection (Trafficking) Visa (Permanent) (Class DH) Subclass 852 visa.
In these proceedings, Mr Ram contends, relevantly, that during the period from 4 August 2007 to 4 December 2008 (the Period), he worked seven days a week, 12 hours a day as a cook at the Restaurant but was only paid total wages of $6,958.88.
Mr Ram claims relief against the respondents for underpayment of wages and entitlements under the relevant industrial award and the Workplace Relations Act, and seeks the imposition of penalties against the respondents in respect of those contraventions. Alternatively, Mr Ram claims damages for breach of his employment contract with the company.
The factual context of the claims
Payment for work at the Restaurant
Mr Ram claims that during the Period, he worked as a cook at the Restaurant seven days a week, 12 hours a day.[9] Mr Ram claims he worked on weekends and public holidays. He only had one day off work during this time.[10]
[9] Mr Ram’s Affidavit affirmed 30 May 2014 at [25].
[10] Mr Ram’s Affidavit affirmed 30 May 2014 at [41].
Mr Ram claims he was paid a total of $6,958.88 for his work during the Period. It is admitted that Mr Trivedi, on behalf of the company, transferred this money to Mr Ram’s wife in India.[11] Mr Ram claims that he did not receive any cash payments for his work at the Restaurant during the Period.[12]
[11] Exhibit DR1, p.265-276 (R v Divye Kumar Trivedi, Unreported (NSWDC, 8 May 2012), Judge O’Connor, p.5); Exhibit DR1, p.341-367 (Aussie Forex & Finance, “Sender Details”, Remittance Application Forms dated 11 September 2007, 14 October 2007, 31 December 2007, 14 April 2008, 20 June 2008 and 28 October 2008 and financial records of Mr Ram's wife in respect of payment on 11 December 2008); Defence at [9].
[12] Mr Ram’s Affidavit in Reply affirmed 18 August 2014 at [12].
Whilst Mr Ram admits that he went with Mr Trivedi to open up a bank account at an ANZ branch in Hornsby on 4 March 2008,[13] Mr Ram claims that Mr Trivedi subsequently took control of Mr Ram’s bank account and bank ATM card. Mr Ram says that during the Period, he did not know how to use an ATM or internet banking.[14] Mr Ram states that he never deposited or withdrew money from his bank account or used internet banking.[15]
[13] Mr Ram’s Affidavit affirmed 30 May 2014 at [55].
[14] Mr Ram’s Affidavit affirmed 30 May 2014 at [54].
[15] Mr Ram’s Affidavit affirmed 30 May 2014 at [62], [65], [66].
Some of these facts are contested by the respondents. Primarily, the respondents contend that Mr Ram was paid, and received, sums in excess of $6,968.88. Mr Ram asserts, however, even if the respondents' primary contention is accepted (that payments greater than $6,968.88 were made to Mr Ram (which he denies)) the respondents do not and cannot demonstrate that Mr Ram was paid what he was entitled to under the relevant industrial award or his employment contract.
In relation to other entitlements, Mr Ram claims that there is no evidence to show that he was paid any of his annual leave entitlements for the Period. The FWO, who investigated this claim, calculated that under the contract, Mr Ram was entitled to 26.72 days of annual leave, and that the company was liable for unpaid annual leave entitlements in the amount of $5,053.57.[16]
[16] Exhibit DR1, p388-389 (Letter from FWO dated 21 December 2012).
Collateral issues
Although not directly relevant to any cause of action pleaded against the respondents, the conditions in which Mr Ram was required to live and work are alleged to have been degrading and exploitative. Mr Ram claims he lived in a small storeroom, next to the kitchen, at the Restaurant.[17] He says that having very few contacts in Australia, poor English and literacy skills, and no wages directly from the respondents,[18] he was in a difficult position to organise alternative accommodation for himself.[19] Furthermore, he says that as there was no bathroom with a shower at the Restaurant, he had to bathe in the kitchen, using buckets of hot water.[20] Mr Ram says that the only alternative permanent accommodation offered to him by Mr Trivedi was the use of his garage at his house in West Pennant Hills. However, the conditions in the garage were worse than the storeroom.[21] Mr Trivedi claims that in fact Mr Ram lived with him and his family in his home.
[17] Mr Ram’s Affidavit affirmed 30 May 2014 at [83], [85].
[18] As noted above, the sum of $6,958.88 was transferred to Mr Ram’s wife in India. Further, Mr Trivedi gave Mr Ram $40 on one occasion (Mr Ram’s Affidavit affirmed 30 May 2014 at [41]. Mr Ram’s Affidavit affirmed 30 May 2014 at [83], [85].
[19] Mr Ram’s Affidavit affirmed 30 May 2014 at [83].
[20] Mr Ram’s Affidavit affirmed 30 May 2014 at [87].
[21] Mr Ram’s Affidavit affirmed 30 May 2014 at [88].
Mr Ram asserts that at times, he was also subject to, or to the threat of, physical and emotional abuse by Mr Trivedi.[22] This is alleged to have taken many forms, but included Mr Trivedi’s conduct leading Mr Ram to believe that if he did not do as he was told, Mr Trivedi would take his house and property in India and sell it, harm his family in India as well as having him arrested when he returned to India.[23] Mr Trivedi denies those allegations.
[22] See Mr Ram’s Affidavit affirmed 30 May 2014 at [96]-[124].
[23] See Mr Ram’s Affidavit affirmed 30 May 2014 at [99]-[119].
Leaving work at the Restaurant
On 5 December 2008, after about 16 months of working at the Restaurant, Mr Ram left his work at the Restaurant and, with the assistance of a colleague from work, went to the Eastwood police station.[24] Mr Ram was then put in touch with the Australian Federal Police, who subsequently charged Mr Trivedi with contravening s.271.2(1B) of the Code, to which Mr Trivedi pleaded guilty.
[24] Mr Ram’s Affidavit affirmed 30 May 2014 at [127], [128].
As noted above, on 6 October 2011, Mr Trivedi pleaded guilty to, and was convicted of, organising or facilitating the entry or receipt of Mr Ram into Australia, and in doing so, being reckless as to whether Mr Ram would be exploited by either Mr Trivedi or another person after that entry into Australia, in contravention of s.271.2(1B) of the Code.
Section 271.2(1B) forms part of a number of amendments made to the Code in 2005 which were intended to enhance Australia's legislative framework around human trafficking.[25]
[25] See Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth).
The evidence and submissions
Mr Ram relies upon two affidavits made by him on 30 May 2014[26] and 18 August 2014.[27] Mr Ram was cross-examined at length upon his affidavits and resisted attacks upon his credibility.
[26] filed on 2 June 2014.
[27] filed on the same date.
The respondents rely upon affidavits made by Mr Trivedi on 4 August 2014[28] and 22 August 2014.[29] The respondents also rely upon the affidavit of Sandhya Trivedi (the wife of Mr Trivedi) made on 4 August 2014.[30] The credibility of Mr Trivedi suffered under cross-examination as will appear below. There were numerous objections to evidence which I dealt with at the trial. I declined to receive a further affidavit from Mr Trivedi which he attempted to tender after his case had closed. A further affidavit by Mr Trivedi was filed after the trial, which I have not paid any attention to. In particular, I have declined to receive into evidence material upon which Mr Trivedi wished to rely but which his then legal representatives had declined to rely upon prior to his case closing.
[28] filed on 7 August 2014.
[29] filed in court by leave on the same day.
[30] filed on 7 August 2014.
I also received the following exhibits:
· A1 – Hours and wages record book;
· A2 – Time and pay book;
· A3 – D&D Indian Foods BAS Workings for 2008 and 2008-2009;
· A4 – PAYG payment summary for Ms S Trivedi, 30.06.2008;
· A5 – Australian Taxation Office (ATO) pre-filling report 2009 for Ms S Trivedi;
· A6 – Sentencing facts – Mr D Trivedi;
· A7 – “Documents for Tender”;
· A8 – DVD – Ram Property Return Disc 1 of 2;
· A9 – “Applicant’s additional documents to tender”;
· A10 – “Selected documents from prosecution brief of evidence”, volumes 1 and 2;
· R1 – DVD – Ram Property Return Disc 2 of 2.
The parties made both oral and written submissions, including post hearing submissions.
Consideration
Mr Ram’s case
Breach of the Award
The Award applied to the respondents
Pursuant to s.12 of the Industrial Relations Act 1996 (NSW) (Industrial Relations Act), Mr Ram’s employment with the company was governed by the Restaurants, etc, Employees (State) Award (AN120468). This was a Notional Agreement Preserving a State Award (NAPSA) (the Award). The employment relationship was also governed by the Workplace Relations Act as it continues to apply by virtue of the Transitional Act. Section 12(1) of the Industrial Relations Act provides that “[a]n award is binding on all employees and employers to which it relates”.
Clause 33.2 of the Award provided that the Award applies to all employees who perform work described in section 3 of the Award, and the employers of such employees. Mr Ram fell within the scope of section 3, as he was a Grade 4 employee, and accordingly, the Award applied to his employment with the company.
Further, under s.208 of the Workplace Relations Act, to the extent that the Award contained pay rate provisions which determined an employee’s basic periodic rate of pay, a preserved Australian Pay and Classification Scale was derived from that award on and from 27 March 2006. Accordingly, the company was also required to comply with the Restaurant Award Pay Scale.
A “Grade 4” employee in section 3 of the Award is an employee who is primarily engaged in one or more of the following, amongst other things:
(1)undertaking general cooking duties, including a la carte cookery, baking, pastry cooking or butchery.
During the Period, Mr Ram’s work at the Restaurant included:
a)making samosas, pakoras, sauces, batters and desserts[31];
b)preparing Indian curries, tandoori chicken and Indian bread.[32]
[31] Mr Ram’s Affidavit affirmed 30 May 2014 at [26].
[32] Mr Ram’s Affidavit affirmed 30 May 2014 at [31].
I accept it is clear that Mr Ram was a Grade 4 employee, as he was performing the work required of that grade.[33]
[33] See clause 3.4 of the Award.
Mr Ram’s entitlements under the Award
Under the Award Mr Ram was entitled to be paid the following:
a)Grade 4 minimum weekly pay rate for working a 38 hour week (being $552.60 per week) (clause 9.1.1);
b)on a Monday to Friday, (clause 11.1.1):
(1)1 ½ of the ordinary rate of pay for the first 2 hours worked after working more than 38 hours per week
(2)2 times the ordinary rate of pay thereafter.
c)on a Saturday, at a rate of 1 ¼ of the ordinary rate of pay for all time worked (clauses 11.1.4 and 11.1.6);
d)on a Sunday, at a rate of 1 ½ of the ordinary rate of pay for all time worked (clauses 11.1.5 and 11.1.6);
e)on a public holiday, at a rate of 2 ½ of the ordinary rate of pay for all time worked (clause 11.1.6);
f)annual leave loading of 17.5 per cent on Mr Ram’s annual holiday pay on accrued but untaken annual leave on termination of the employment (clause 17.1).
Hours / days Mr Ram worked
During the Period, Mr Ram claims that he worked a total of 70 weeks, and 5,856 hours. This included:
a)1422 hours working mid-week overtime;
b)816 hours working on a Saturday;
c)840 hours working on a Sunday;
d)120 hours on public holidays.
What Mr Ram was paid
Despite working these hours, Mr Ram claims that he was only paid a total of $6,958.88 by the company.
Under the Award, Mr Ram was entitled to be paid $126,707.64 by the company. Schedule A to the Statement of Claim (as amended) shows the calculations applying the Award rates and entitlements identified above to reach this amount.
Mr Ram has a fall back position on his underpayment claim. Even if the respondents establish that he was paid more than $6,958.88 for his work during the Period, which he denies, the respondents can only point to an amount of $25,065.46 which is alleged to have been deposited in a bank account opened in Mr Ram’s name. This amount (if accepted as having been received by Mr Ram) nevertheless constitutes a gross underpayment even on the respondents’ apparently best-case position. As such, Mr Ram claims that, on any view he was substantially underpaid having regard to his entitlements under the Award.
Moreover, there is no evidence that Mr Ram was paid any of his annual leave entitlements. Accordingly, Mr Ram claims that he is also entitled to $5,053.57 in annual leave payments, as calculated by the FWO.
Accordingly, Mr Ram contends that on either his or the respondents’ case, the company contravened the Award clauses identified above.
Contraventions of the Award
Mr Ram contends that the company therefore is liable to:
a)compensate him pursuant to s.720 of the Workplace Relations Act (as it continues to apply by virtue of the Transitional Act) in respect of the underpayments arising from the contraventions of the Award;
b)pay interest pursuant to s.722 of the Workplace Relations Act;
c)the imposition of a penalty pursuant to s.719 of the Workplace Relations Act.
Interrelationship with contract
As stated above, I accept that the Award applied to Mr Ram’s employment with the company. Mr Ram’s written contract of employment dated 1 February 2007 provided that Mr Ram would be employed “in accordance with the New South Wales and Australian workplace legislation requirement.”
It can thus be inferred that the company did not intend to contract out of the Award requirements. In any event, it has been held that a contract of employment cannot derogate from the terms and conditions of an industrial instrument which operates with statutory force, such as the Award.[34]
[34] See Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417; Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 421; Visscher v Guidice (2009) 239 CLR 361 at [71].
Accessorial liability of Mr Trivedi
Mr Ram contends that Mr Trivedi was “involved in” the company’s contraventions of the Workplace Relations Act and the Award within the meaning of s.728 of the Workplace Relations Act. Specifically, it is alleged that Mr Trivedi aided, abetted, counselled or procured, induced, or was knowingly concerned in or a party to, the company’s contraventions. In this regard, it should be noted that the words “aid, abet, counsel or procure” are “instances of one general idea” being that the accessory is “in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission”.[35]
[35] Giorgianni v R (1985) 156 CLR 473 at 492 per Mason J.
I accept the submissions of counsel for Mr Ram concerning the relevant principles to be applied. In Yorke v Lucas,[36] Mason ACJ, Wilson Deane and Dawson JJ held at 670 that for a person to be “knowingly concerned in” a contravention, he or she must have “knowledge of the essential facts constituting the contravention” though it need not be proved that the person knew that the matters in question constituted a contravention.[37]
[36] (1985) 158 CLR 661.
[37] See also Dowling v Kirk [2007] FMCA 2106.
The authorities establish that in order for a person to have accessorial liability, he or she must be a knowing participant or in other words:
a)must have knowledge of the essential facts constituting the contravention;
b)must be knowingly concerned in the contravention;
c)must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention — although constructive knowledge may be sufficient under s.550(2)(c) in cases of wilful blindness; and
d) need not know that the matters in question constituted a contravention.
These matters were also addressed by Smith FM, in Fair Work Ombudsman v McGrath;[38] and also in Fair Work Ombudsman v AM Retail Solutions and Anor (No 4).[39] In McGrath, his Honour examined the authorities as to the evidence necessary to establish that a person is “knowingly concerned”. His Honour held as follows at [24]-[27]:
In Giorgianni v R (1985) 156 CLR 473, which was applied in Yorke v Lucas, it was made clear in relation to a strict liability offence, which could be established against a principal offender by proving an omission to take a required action, that the requirement of intentional participation by an accessory did not allow the accessory to be convicted merely by showing a negligent, reckless, or irresponsible failure by him to be aware of an essential fact and to ensure the taking of the required action. …
The judgments in Giorgianni recognised that in some circumstances a finding of “wilful blindness” might be sufficient. However, as Gibbs CJ said at 487:
… connivance, or wilful blindness, is only relevant to the liability of a secondary party to an offence because it virtually amounts to knowledge. Recklessness, in the sense of not caring whether the facts exist or not, would be relevant only if it too was virtually equivalent to knowledge, in other words only if it amounted to wilful blindness.
[38] (2010) 239 FLR 313 at [19]-[30].
[39] [2010] FMCA 525.
Mason J explained “wilful blindness” at 495:
It is enough if the defendant has deliberately shut his eyes to a relevant fact or has deliberately abstained from obtaining knowledge by making an inquiry for fear that he may learn the truth. (emphasis added)
In the present case, it is thus necessary for Mr Ram to prove that Mr Trivedi was “linked in purpose with” or had an involvement in the contraventions (ie, the element of accessorial conduct) and was aware or had knowledge of the essential facts of the company’s contraventions (ie, the element of accessorial knowledge).
In the present case, Mr Ram claims that Mr Trivedi was involved in the company’s contraventions of the Award because during the Period, he was:
a)a director of the company;
b)responsible for the overall direction, management and supervision of Mr Ram;
c)the person who determined Mr Ram’s terms and conditions of employment;
d)aware of what hours and days Mr Ram worked at the Restaurant;
e)aware of what Mr Ram was paid for that work, as he gives evidence that he paid Mr Ram his salary on behalf of the company;
f)aware during the Period that Mr Ram’s employment with the company was covered by the Award;[40]
g)the person who signed the offer of employment.[41]
[40] Defence at [4].
[41] Exhibit DR1, tab 20, p.368.
Mr Trivedi is said to have been aware of his obligations under the Award during the Period as:
a)Mr Trivedi prepared and signed Mr Ram’s employment contract, which clearly provided that the employment would be in accordance with the New South Wales and Australian workplace legislation requirements;
b)in order to obtain a 457 visa for Mr Ram, Mr Trivedi was required to sign undertakings that the employer would comply with Australian Industrial Relations laws and provide at least Australian levels of payment for the work that the visa-holder does in Australia;
c)hence, the evidence establishes that Mr Trivedi had knowledge or awareness during the Period that the Award applied to Mr Ram. With this knowledge in mind, Mr Trivedi did not cause Mr Ram to be paid in accordance with his entitlements under the Award. In other words, Mr Trivedi knowingly made a decision which he knew would result in Mr Ram not being paid in accordance with those awards and he intended this to be the case.
Breach of annual leave entitlements
Mr Ram claims that the company was obliged to pay him annual leave entitlements under both the Award and the Workplace Relations Act, as follows:
a)the Award required that Mr Ram was entitled to an annual leave loading of 17.5 per cent on his annual holiday pay on accrued but untaken annual leave on termination of the employment (clause 17.1);
b)the Workplace Relations Act provides that an employee is entitled to accrue an amount of paid annual leave, for each completed four week period of continuous service with an employer, of 1/13 of the number of nominal hours worked by the employee for the employer during that four week period (s.232).
On 21 December 2012, the FWO, after investigation, calculated that Mr Ram was entitled to $5,053.57 for 26.72 days of unpaid annual leave entitlements.[42] The FWO provided the company with 14 days to pay Mr Ram this entitlement. The FWO subsequently made several unsuccessful attempts to recover Mr Ram’s entitlement to annual leave payment, and, on 22 February 2013, advised Mr Ram that his option was to now enforce the claim through a small claims or court process.[43] This is what Mr Ram has now done.
[42] Letter from the FWO dated 21 December 2012 to Mr Ram c/o the solicitors for Mr Ram, Exhibit DR1 to Mr Ram’s Affidavit affirmed 30 May 2014, p.386.
[43] Letter from the FWO dated 22 February 2013 to the solicitors for Mr Ram, Exhibit DR1 to Mr Ram’s Affidavit affirmed 30 May 2014, p.392.
Mr Ram submits that there is no evidence to show, and it is not denied by the respondents,[44] that he was ever paid this entitlement by the respondents following Mr Ram ending his employment with the company or following the FWO’s investigation.
[44] See Defence at [13].
Accordingly, Mr Ram submits that the company has breached its obligations under the Award and the Workplace Relations Act, and as such the company is liable to pay the amount assessed and found to be due by the FWO.
I accept that it is no answer to this claim that it was Mr Ram himself who ceased working at the Restaurant. Mr Ram is still entitled to be paid annual leave, even if he is the party terminating the employment contract after, for example, repudiatory conduct on the part of the respondents. Such is correct clearly as a matter of principle. Neither the Workplace Relations Act nor the Award limit an employee’s entitlement to annual leave by reference to whether the employee or the employer terminates the employment contract. For example, s.235(2) of the Workplace Relations Act states:
If the employment of an employee who has not taken an amount of accrued annual leave ends at a particular time, the employee must be paid a rate for each hour (pro-rated for part hours) of the employee's untaken accrued annual leave that is no less than the rate that, immediately before that time, is the employee's basic periodic rate of pay (expressed as an hourly rate). (emphasis added)
Breach of employment contract
The parties accept that the terms of the employment contract between Mr Ram and the company are reflected in the company’s letter of employment offer dated 1 February 2007.[45]
[45] Statement of Claim at [42]; Defence at [18], and see email from the Department of Immigration dated 15 June 2007 (Exhibit DR1, p.369).
Relevantly, in that letter of employment, the terms of the employment contract included a commencing salary of $41,850 plus superannuation.
As explained above, Mr Ram worked at the Restaurant for a period of approximately 16 months. Pursuant to the employment contract, therefore, the amount payable to Mr Ram was $55,800.[46]
[46] This amount is calculated as follows: $41,850 divided by 12 months, multiplied by 16 months to total $55,800.
Mr Ram claims that he was only paid wages of $6,958.88 by the company for his work at the Restaurant during the Period.
Further, as discussed above, Mr Ram submits that if the respondents establish that he was paid more than $6,958.88 for his work during the Period, which is denied, the respondents can only point to an amount of $25,065.46 which was deposited in a bank account opened in Mr Ram's name. This still represents an underpayment of $30,734.54, having regard to what Mr Ram was entitled to be paid under the employment contract.
Further, as the company was not entitled to contract out of its Award obligations, the company is still liable to pay outstanding entitlements under the Award, including payments owing to Mr Ram for:
a)working mid-week overtime;
b)working on a Saturday;
c)working on a Sunday;
d)working on public holidays;
e)annual leave.
Furthermore, where payments made, for example in respect of ordinary hours of work, are in excess of the award obligation, the excess cannot be set-off against a claim for underpayment of another award entitlement, such as overtime, unless, at the time of the payment of the excess, the employer designates that the excess over the amount of the award obligation is paid to the purpose of satisfying any entitlement to overtime payments.[47]
[47] eg, see Goldberg J in Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250.
Mr Ram submits that there is no evidence to suggest that such notification was provided to him in relation to any payments allegedly made to him during the Period.
Accordingly, Mr Ram submits that the respondents remain obliged to pay him for the underpayments in respect of each of the entitlements claimed.
Mr Trivedi liable in tort for inducing breach of contract
In addition, Mr Ram claims that in the circumstances, Mr Trivedi is personally liable for the company’s breach of contract because Mr Trivedi procured or directed the company to breach the employment contract with Mr Ram. In doing so, he was acting outside the scope of his position as director.[48] This is because, in the circumstances, Mr Trivedi was acting in the furtherance of a criminal enterprise, being the exploitation of a person who he trafficked into Australia. Contextually relevant is, of course, the fact that Mr Trivedi pleaded guilty to trafficking Mr Ram into Australia in circumstances where he was reckless as to whether he would exploit Mr Ram.
[48] See eg, Idoport Pty Ltd v National Australia Bank Ltd (No 20) [2001] NSWSC 328 at [22] per Einstein J; O’Brien v Dawson (1942) 66 CLR 18 at 32 per Starke J.
The elements of the tort of inducement to breach a contract are:[49]
a)that Mr Trivedi intended to induce the company to break Mr Ram’s employment contract;
b)Mr Trivedi did induce the company to break Mr Ram’s contract, ie, that his conduct in fact caused the company to break the contract;
c)that this conduct was done outside the scope of Mr Trivedi’s position as a director of the company;
d)that Mr Ram has suffered loss as a consequence.
[49] See generally Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd & Anor [2002] QSC 105; O’Brien v Dawson (1942) 66 CLR 18.
Mr Ram submits that these elements are established here.
First, Mr Trivedi intended to induce the company to break Mr Ram’s employment contract, as:
a)Mr Trivedi was clearly aware of the employment contract;
b)Mr Trivedi paid Mr Ram for his work at the Restaurant;
c)Mr Trivedi knew, or must be taken to have known, that what he was paying Mr Ram was significantly lower than what was promised in the employment contract;
d)in the circumstances, Mr Ram asserts that it was Mr Trivedi’s intention that the company not pay the amount promised in the employment contract.
Secondly, Mr Ram contends that Mr Trivedi in fact induced the company to break Mr Ram’s employment contract because of the reasons identified above. It was Mr Trivedi who performed the acts which in fact directly lead to the company breaching its contract with Mr Ram.
Thirdly, this conduct is said to have been outside the scope of Mr Trivedi’s position as a director. This is because, as explained above, it was illegal conduct, as, in the circumstances, it constituted the exploitation of a trafficked person.
Finally, Mr Ram claims he suffered loss as a consequence of Mr Trivedi’s actions as Mr Ram has not received the amounts promised to him under the employment contract.
The respondents’ case
The respondents maintain that Mr Ram abandoned his employment without notice and furthered his interest by obtaining permanent residency in Australia in circumstances where a change in the law prohibited that. They further assert that Mr Ram, by his conduct, caused the company loss.
The respondents accept that there is a dispute that the Court must resolve concerning the days and hours that Mr Ram worked at the Restaurant during the period of his employment. They accept that there is also a dispute about what Mr Ram was paid by the respondents. They assert by reference to documentary evidence payments of $46,678.04 to Mr Ram. They assert that the investigation by the FWO establishes that nothing further is due to Mr Ram. The documents include paybooks, taxation records and observations made by Judge O’Connor during the criminal proceedings. In particular, the respondents refer to observations by Judge O’Connor that the investigation by the FWO had not established non payment of wages to Mr Ram and had not established that he was required to work seven days a week, 12 hours a day.[50]
[50] Exhibit DR1 to the Affidavit of Mr Ram made 30 May 2014, tab 2 at p.269.
The respondents otherwise focus their attack on the credibility of Mr Ram. They seek to paint him as a person willing to bring proceedings in bad faith and a person of no credibility who is not only a liar but one who is shown to be a liar.
Resolution of the claims
General issues
I reject the respondents’ submissions and I accept the submissions of Mr Ram. For the reasons which follow, I accept that Mr Ram has established all of the elements of his claim.
The respondents have presented false and inconsistent evidence to the Court and their pursuit of a cross-claim which alleged multiple causes of action but lacked any evidentiary basis brings no credit to them. Further, I do not accept the respondents' defence to Mr Ram’s allegations.
I find that Mr Ram, a man who was functionally illiterate, spoke virtually no English and had no contacts in the Australian community, was brought from India to work 12 hours per day, seven days per week in the respondents' restaurant. Over 16 months, Mr Ram was not paid, beyond the small foreign exchange transfers sent to his wife, and received no leave. The respondents built a façade upon sham documents, to deceive the Department of Immigration and the ATO and attempted to deceive this Court, in an effort to create the illusion that there was an employment arrangement in accordance with Australian law.
If the Court were to accept the respondents' version of events in this matter, it would have had to accept the following factual scenario:
a)the respondents required a primary chef for their restaurant, and could not locate a suitably-qualified candidate in Australia;
b)arrangements were made to bring Mr Ram from India under a 457 visa to work as the Restaurant's primary chef, in circumstances where:
i)Mr Ram received $35,000 in wages over 10 months in the 2008 financial year;
ii)the $7,000 debt incurred by the respondents in bringing Mr Ram to Australia was not enforced against him;
iii)the respondents not only provided Mr Ram with free meals, accommodation and even clothing and haircuts[51], but purchased a two-storey home so that Mr Ram could live downstairs with his own bedroom, kitchen and living room;
[51] Police interview of Mr Trivedi, 16 February 2008, annexed to Statement of FA Farren, at Exhibit#A10, tab 4, Q425 & Q429, and Police interview of Mr Trivedi, 19 February 2008, annexed to Statement of FA Farren, at Exhibit#A10, tab 4 - Q126 to Q130.
iv)Mr and Mrs Trivedi paid $2,400 per month in mortgage payments on their new home;
v)Mr and Mrs Trivedi's combined income in the 2008 financial year was only $26,000, which was less than 75 per cent of what they paid to Mr Ram, and was less than their mortgage payments.
c)Mr Ram was grossly incompetent[52] and unable to perform competently[53] the duties of a cook, which were the basis of the 457 visa;
[52] Respondents' Grounds of Defence filed 20 March 2014 at [6].
[53] ibid at [15]; and cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-46: "he has been a waste bringing here, spending all that money; he doesn’t possess those skills".
d)nevertheless, the respondents retained Mr Ram, paid him for 16 months under a contract which he was not performing satisfactorily, and did not notify the Department of Immigration that Mr Ram was unable to perform his duties, despite the requirements of the 457 visa;
e)despite the extraordinarily generous nature of these arrangements in respect of Mr Ram, Mr Trivedi pleaded guilty, and presented contrition evidence,[54] in criminal proceedings before the District Court, to having committed the offence of trafficking in persons under s.271.2(1B) of the Code, such offence:
[54] Transcript of Sentencing, at p272 of the Exhibit DR1 to the affidavit of Mr Ram affirmed on 30 May 2014.
i)containing the element of recklessness to Mr Ram's exploitation by Mr Trivedi or another person on entry into Australia; and
ii)defining “exploitation” relevantly under s.271.1A as causing the victim to enter into the condition of forced labour;[55]
[55] The Transcript of Sentencing, at p.271 of the Exhibit DR1 to Mr Ram's Affidavit, records that counsel for Mr Trivedi conceded that Mr Ram was not free to leave the restaurant to cease providing labour as the result of a purported debt owed to Mr Trivedi.
f)although Mr Trivedi knew that Mr Ram was illiterate, Mr Trivedi gave Mr Ram responsibility for completing his own hourly time records;
g)the respondents kept time records for Mr Ram, right from the commencement of his employment, even though:
i)no time records were kept for any of the respondents' other employees;
ii)such records were not relevant to the calculation of Mr Ram's fixed income under contract;
iii)there was no business need for the company to keep time records;[56] and
iv)no wage records have been produced for any other employee of the company;
h)The respondents thought to institute time records for Mr Ram right from the commencement of his employment, but:
i)did not think to keep any cash receipts or book entries recording payments being made to Mr Ram;[57] and
ii)were unaware of any need to pay Mr Ram through a bank account, create a Tax File Number for Mr Ram, pay him superannuation or provide him with annual leave until so advised by the Department of Immigration, seven months after Mr Ram was brought to Australia.
[56] Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-46.
[57] Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-45.
I agree with counsel for Mr Ram that such a scenario strains credulity to breaking point.
Further, the respondents opened their case by stating simply that "the documentation supports the case of the respondents".[58] However the documentation upon which the respondents have sought to rely provided no such support.
[58] Respondents' Outline of Submissions filed 19 August 2014, at [8].
The documentary evidence presented by the respondents lacks consistency or plausibility. It involves reconstructions after the fact, which are inaccurate. Three simple initial examples suffice to demonstrate the problem.
Time records
Both Mr and Mrs Trivedi gave sworn evidence as to the accuracy of the time records at Exhibit A1 and Exhibit A2. However it was readily apparent during the examination of Mr Ram and of Mr and Mrs Trivedi, that these time records were not accurate. Mr Trivedi conceded in cross-examination that the records were inaccurate.[59]
[59] Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-64 and P-90.
Payroll advices for Mr Ram
Mr Trivedi conceded in cross-examination that despite his earlier sworn evidence to the contrary, the purported payslips of Mr Ram were inaccurate.[60]
[60] Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-63 and P-80.
Wage payments to employees
It is the respondents' evidence that over the 2008 financial year and 2009 financial year, only four of the ten workers at the Restaurant[61] received any payment of wages:[62]
a)Mr Ram was paid wages;
b)a Mr Kahnagura was paid casual wages over one and a half months;[63]
c)a Mr Tarun was paid a total of $1,740 and a Mr Jagmohan was paid $1,305.[64]
[61] The undisputed evidence in this matter is that the company employed ten workers (in addition to Mr Trivedi and his wife) during financial year 2008 and financial year 2009: Mr Davinder Pal (Respondents' Answer to Interrogatories - 2(b), Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-55); Mr Jatinber Singh Kahnagura (Respondents' Answer to Interrogatories - 2(b), Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-55); Tajinder (Mr Ram’s Affidavit – [30], [38], [39], [40], Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-55); Mr Ravinder Singh Sandhu; (Mr Ram’s Affidavit – [30], [38], [40], [41], Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-55); Rajat Ashish (Mr Ram’s Affidavit – [126], [127]); Gurdeep (Mr Ram’s Affidavit – [126] to [130]); Mr Tarun (BAS Statement financial year 2009 - Exhibit 3); Mr Jagmohan (BAS Statement financial year 2009 - Exhibit 3); Ms Surchant Basingh (Police interview of Mr Trivedi, 19 February 2008, annexed to Statement of FA Farren, at Exhibit#A10, tab 4, Q280-Q284 & Q287); and Mr Ram.
[62] Cross-examination of Mr Trivedi on 22 August 2014 - P-59: "So is the answer to my question, no wages were paid to any of the other people, that you say, were engaged as employees?---Only Jatinder Kahnagura was paid".
[63] Cross-examination of Mr Trivedi on 22 August 2014 - P-59: "Only Jatinder Kahnagura was paid. But he was paid - he was a casual person and he just worked few hours. And in one and a half month, only he worked after Mr Ram had come."
[64] BAS Statement financial year 2009 - Exhibit 3.
It beggars belief that the BAS statements prepared and submitted to the ATO for the respondents accurately reflect the true state of the wages of the many workers employed by the respondents.
Telephone records
Perhaps the most telling documentary evidence is the telephone records of the respondents which, as discussed below, show that, consistently with Mr Ram’s case:
a)morning phone calls were made regularly from the Restaurant to Mr Trivedi’s home on most days while Mr Ram worked at the Restaurant; and
b)morning phone calls were not made in the months before and after Mr Ram worked at the Restaurant.
These telephone records were available to the respondents, but not relied upon. They were belatedly produced by the respondents but only after the Australian Federal Police had produced the same records. When confronted with the objective documentary records, the explanation proffered by Mr Trivedi was that these telephone calls occurred because of the use of a “call divert” function that was being used. This explanation was further explored in the re-examination of Mr Trivedi, but in a limited way which was ultimately apt to mislead as to the true frequency of use of the “call divert” function during the relevant periods. As noted below, there were only four days during the entire 16 month period of Mr Ram’s engagement when the “call divert” function was used on the relevant phone number.
Cross-claim
Further, the respondents have not assisted their cause through their cross-claim brought against Mr Ram in the complete absence of any supporting evidence, their failure to comply with the Court's orders to provide written submissions in support of the cross-claim, and their failure to ask any relevant questions of Mr Ram in cross-examination in respect of the cross-claims.
Key issues in dispute
There are four key issues in dispute in this matter. They are, namely:
a)what days and hours Mr Ram worked at the Restaurant during the Period;
b)what Mr Ram was paid by the respondents;
c)what Mr Ram was entitled to under the Award; and
d)who is liable?
The evidence of the parties conflicted on these issues. I have no hesitation in accepting the evidence of Mr Ram over the evidence of the respondents, when determining each of these issues. The evidence presented by the respondents lacks credibility, and I do not accept it as truthful or accurate.
Credibility of the parties
The respondents
Mr Trivedi has given evidence in respect of these events on six separate occasions (two police interviews in the criminal investigation, two affidavits in these proceedings, an answer to interrogatories, and in oral evidence before this Court). That evidence contains inconsistencies. Mr Trivedi was given the opportunity to clarify which of the versions was correct, but said under cross-examination that they were all equally true: “My version is always the same”.
Mr Trivedi’s counsel sought and obtained a section 128 certificate in respect of Mr Trivedi’s evidence under cross-examination. It is apparent that even though the respondents put into evidence documents which they asserted to the Court were true and correct, and which had apparently also been presented as true and correct variously to the ATO and the Department of Immigration, much of the respondents' documentary evidence cannot be relied upon.
Mr Trivedi pleaded guilty to the criminal offence under s.271.2(1B) of the Code of trafficking in persons, in his treatment of Mr Ram. Mr Trivedi was the first person convicted in NSW of a labour trafficking offence under the people trafficking provisions introduced into the Code.[65]
[65] See also "Trafficking in Persons - The Australian Government Response 1 July 2011- 30 June 2012", The Fourth Report of the Anti-People Trafficking Interdepartmental Committee, at p.22.
Mr Ram living at the Trivedis' home
The Court was offered a stark choice :
a)Mr Ram gave evidence that he lived in the Restaurant's storeroom, worked every day (including Mondays) throughout the day, regularly calling the Trivedis’ home around 11.00am for instructions; or
b)the respondents say that Mr Ram has invented his story, and that Mr Ram lived at their home, before usually being taken to work by them in the afternoons. The Restaurant was empty during the day, and Mr Ram did not work Mondays.
I cannot accept that Mr Ram lived with the Trivedis. There is simply no reliable evidence to support this claim.
Mr Trivedi told police that Mr Ram lived downstairs at the Trivedis’ home, with Mr Trivedi’s cousin, Rajat Ashish.[66] Mr Trivedi told police that Mr Ram “normally” travelled to work on the train with Mr Ashish and the Trivedis’ son, or was driven to work by Mr Ashish.[67] On weekends, Mr Ram mostly travelled to work with Mr Ashish.[68]
[66] Police interview of Mr Trivedi, 16 February 2008, annexed to Statement of FA Farren, at Exhibit#A10, tab 4 - Q168-Q171.
[67] ibid - Q441 to Q443.
[68] Police interview of Mr Trivedi, 19 February 2008, annexed to Statement of FA Farren, Exhibit#A10, tab 4 - Q98.
I accept that there is a clear Jones v Dunkel issue with respect to this evidence. The failure of the respondents to call Mr Ashish to confirm that Mr Ram travelled to work from the Trivedis’ house with Mr Ashish raises the inference that he was not called because Mr Ashish's evidence would not in fact have assisted the respondents. This is particularly the case where the respondents would have been aware that Mr Ashish had already told the police that he had not driven Mr Ram to the Restaurant.[69]
[69] AFP Statement of Rajat Ashish - Exhibit#A10, tab 12.
The telephone records obtained by the police,[70] for calls between the Restaurant and the Trivedis’ home, confirm Mr Ram’s evidence that he was living in the Restaurant and calling regularly in the mornings for instructions about food preparation during the day, including on Mondays.
[70] The Statement of Adam Gelfe, Telstra Corporation Limited, dated 13 November 2009, Exhibit #A10, tab 16 annexes telephone records which were tendered on the basis that they are business records of Telstra. Exhibit #A10 (which includes the telephone records of Telstra) was accepted subject to relevance and, as these submissions indicate, the telephone records are clearly relevant to the issues in dispute in this proceeding.
The records for calls made between the hours of 10am and midday from the Restaurant’s phone line[71] to the Trivedis' home[72] show that:
[71] 9804 7627.
[72] 9987 0852 and 9980 7043. See second bundle of records, headed "Agency: Vic Police Service: 0298047627", annexed to Statement of Adam Gelfe, Telstra Corporation Limited, dated 13 November 2009, Exhibit#A10, tab 16.
a)no such phone calls were made in the two months prior to Mr Ram’s arrival on the afternoon of 4 August 2007;
b)a 3 minute 30 second call occurred on 5 August 2007;
c)from that time, telephone calls or attempted phone calls were made on:
i)15 days in August 2007 (including one Monday);
ii)19 days in September 2007 (including two Mondays);
iii)30 days in October 2007 (including all five Mondays);
iv)26 days in November 2007 (including all four Mondays);
v)25 days in December 2007 (including four Mondays);
vi)27 days in January 2008 (including three Mondays);
vii)5 days in February 2008, until the Trivedis' home phone number was changed (including the only Monday), and then 7 more days in February (including one more Monday);
viii)14 days in March 2008 (including one Monday);
ix)16 days in April 2008 (including two Mondays);
x)16 days in May 2008 (including three Mondays);
xi)17 days in June 2008 (including three Mondays);
xii)19 days in July (including two Mondays);
xiii)19 days in August 2008 (including three Mondays);
xiv)13 days in September 2008 (including four Mondays);
xv)27 days in October 2008 (including two Mondays);
xvi)21 days in November 2008 (including two Mondays);
xvii)2 days in December 2008 (until 4 December 2008);
d)no such phone calls were made from 5 December 2008 until 31 March 2009;
e)there were only four days across 16 months[73] when any of these calls was made during a period that the call diversion (#D#) service was activated on phone number 9804 7627. When counsel for the respondents re-examined Mr Trivedi on the issue of the call diversion service, selective examples were identified within the mass of records stretching over 16 months, and no reference was made to number 9804 7627. This selective approach has the potential to mislead if not closely scrutinised. The fact is that other than on four days, there is no evidence within the telephone records as to the use of the call diversion service on the relevant number.
[73] 8, 9, 10 and 11 January 2008.
Mr Trivedi resiled from previous claims re the Restaurant storeroom and date of employment
The respondents' case involves Mr Trivedi resiling from the position put by him before the District Court in defence of the criminal proceedings in 2012 on two essential points. First, Mr Trivedi acknowledged that it was a factual position which he put before the District Court, that on some occasions Mr Ram stayed in the Restaurant's storeroom.[74] Mr Trivedi also read through the document described as Sentencing Facts in his case and agreed that there was nothing with which he disagreed (except in two minor and irrelevant points).[75] Mr Trivedi noted in those Sentencing Facts that Mr Ram:[76]
sometimes stayed overnight at the dry storeroom at his own choice. Mr Trivedi disputes that Ram lived only in the dry storeroom.
However, despite this admission that Mr Ram did stay in the storeroom (although not only in the storeroom), Mr Trivedi sought to change this evidence when under cross-examination. Mr Trivedi ultimately denied that Mr Ram ever stayed in the storeroom.[77]
[74] Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-69.
[75] Exhibit#A6, at Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-91.
[76] Exhibit #A6 at [17].
[77] Cross-examination of Mr Trivedi on 22 August 2014 - Transcript P-71.
Secondly, Mr Trivedi’s evidence in these proceedings is that although Mr Ram arrived in Australia on 4 August and went straight to the Restaurant, he did not commence work there until 21 August 2007. However, in the criminal proceedings it was not in dispute (and the Court was therefore satisfied beyond a reasonable doubt) that Mr Ram had “commenced work at the Offender's restaurant on 4 August 2007”.[78]
[78] Transcript of Sentencing at [11], at p.268 of the Exhibit DR1 to Mr Ram’s Affidavit,
As to the criminal proceedings, his Honour Judge O'Connor's comments and· references to the FWO findings need to be understood in the context of a guilty plea being entered by Mr Trivedi, rather than the conduct of a full hearing. It would appear that (as is apparently not uncommon in sentencing proceedings) no evidence was led by the prosecution other than the tender of an Agreed Statement of Facts. Mr Ram, who was the affected victim in those proceedings, was not called to give evidence by the prosecution.
His Honour's statements confirm that none of the relevant evidence (for the purposes of these current proceedings) was tested in any substantial way. It is unclear what materials other than the Agreed Statement of Facts were tendered by the prosecution and it would appear that the entirety of the Brief of Evidence was not tendered. That is also not surprising given the admission of guilt by Mr Trivedi. It would appear that as a mitigating fact, Mr Trivedi’s representatives tendered the report of the FWO's findings, but these findings were not challenged in any way and no evidence was called to rebut that evidence.
His Honour noted that:[179]
As far as the [disputed] facts are concerned , whilst I have a suspicion that they are not as benign as submitted by the Offender, I am not able to conclude beyond a reasonable doubt the more serious complaints have been established.
I am not in a position to make assessments concerning credibility in relation to disputed facts not having seen or heard the witnesses.
[179] Mr Ram’s Affidavit, Exhibit DR1, tab 2 at p.270.
Further:[180]
Whilst one has a suspicion that [the victim's] remuneration was not as provided to the Department, I am unable to determine beyond reasonable doubt that such was the case.
[180] Mr Ram’s Affidavit, Exhibit DR1, tab 2 at p.273.
His Honour's observations necessarily reflect:
a)the lack of evidence provided to his Honour; and
b)the higher standard of proof applicable in criminal proceedings.
Even so, his Honour's nuanced observations reflect a well-founded scepticism in many of the assertions advanced by Mr Trivedi.
In contrast to the proceedings before Judge O'Connor, this Court has evidence to discredit the so-called "paper" records maintained by the respondents, including the telling admissions made by Mr Trivedi. Accordingly, I have proceeded to make factual findings in respect of the key issues in dispute between the parties, unrestrained by any earlier investigation by the FWO or criminal findings by the District Court.
The telephone records
The telephone records provide an objective documentary basis to establish that Mr Ram was at the Restaurant from at least 10.00am each morning. They do so because the records disclose a consistent pattern of telephone calls made between the hours of 10.00am and midday from the Restaurant’s phone line (9804 7627) to the Trivedis' home. This evidence is consistent with Mr Ram’s evidence that he was required to contact the Trivedis in the morning in order to obtain instructions as to the tasks to be performed during the day.
As outlined in Mr Ram’s closing submissions, Mr Trivedi’s explanation that these calls reflected calls being "diverted" is completely at odds with the objective records which disclose that the call diversion service was not activated during the relevant periods in question.
Mr Trivedi now suggests that Mr Ram’s telephone calls from the Restaurant to Mr Trivedi’s home are "a proven lie".
What is clear is that Mr Ram does not suggest that he made six or seven calls a day to Mr Trivedi’s home.
Mr Ram sets out in his closing submissions the relevant evidence as to the phone calls made between the hours of 10.00am and midday from the Restaurant’s phone line[181] to the Trivedis' home. There does not seem to be any basis to support Mr Trivedi’s suggestion that these morning calls made it "physically impossible" for Mr Trivedi to call his wife.
[181] 9804 7627.
The respondents assert that "numerous other calls" were made to "suppliers, their accountant and business associates", at around the same time as the calls made from the Restaurant to Mr Trivedi’s home. However this claim is simply not supported by the evidence.
This assertion of "numerous calls" to third parties was made for the first time in the respondents' closing submissions. No evidence was led in the proceedings by the respondents as to who may have been the recipients of any calls from the Restaurant during the Period.
I reject the assertion. Mr Ram has set out the evidence as to the phone calls made between 10.00am and midday from the Restaurant’s phone line[182] to Mr Trivedi’s home. A review by counsel for Mr Ram of the records for phone calls made from that number in the three months of August, September and October 2007, shows that:
a)on only two days in August 2007 and three days in September 2007 was a phone call made between 10.00am and midday to a number other than Mr Trivedi’s home;
b)there is nothing to suggest that the calls on those days were made to suppliers, the Trivedis’ accountant and business associates. Indeed, all of the calls made during September were to (02) 8205 3300, which appears to be the number for making calls on a phone card to India using the My India Phone Card;[183] and
c)no phone calls were made at all between 10.00am and midday during October 2007 to a number other than Mr Trivedi’s home.
[182] 9804 7627.
[183] See . worldscards. corn.au/demo/item. php?item name=391319
There also is no basis to accept the suggestion in the respondents’ closing submissions that because there was not a·call made every single day between 10.00am and midday from the Restaurant to the Trivedis' home, that Mr Ram must be lying about working. Someone was calling regularly from the Restaurant in the mornings, including on Mondays. The only conclusion available on the evidence before the Court is that the person making those calls was Mr Ram. The telephone records for calls between the Restaurant and the Trivedis' home confirm Mr Ram’s evidence that he was living in the Restaurant and calling regularly in the mornings for instructions about food preparation and other work to be performed during the day.
I also have regard to Mr Ram’s direct and largely unchallenged evidence that he was working at the Restaurant every day from the morning onwards. It was not put squarely to Mr Ram that he was not doing so. Unlike other cases referred to during the course of oral submissions, there is no evidence to suggest that Mr Ram was not attending to his duties during these periods (or was not otherwise “on the job”). I accept Mr Ram’s evidence, which is corroborated by the objective telephone records.
The suggestion that Mr Ram invented the claim as a way to obtain permanent residency
The respondents' challenge Mr Ram’s credibility, stating that he invented the allegations as a way of obtaining permanent residency in Australia. This is extremely speculative and unsupported by any evidence.
Mr Ram set out in detail in his closing submissions the remarkably unlikely chain of events required had Mr Ram plotted such a course. Just one part of this involved seven independent witnesses providing evidence to the AFP, including evidence from Mr Trivedi’s cousin and the respondents' accountant.
The respondents are silent as to these matters.
Matters not addressed by the respondents
The respondents have failed to address in any way the significant evidentiary and credibility points raised in Mr Ram’s outline of closing submissions. These include:
a)Mr Trivedi’s concessions under cross-examination that the time records and the purported payslips were inaccurate;[184]
[184] See [1.6(a)] and [1.6(b)] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
b)false time records which contain significant inconsistencies and inaccuracies despite being presented to the Court as accurate and contemporaneous. Time records were not signed in Mr Ram’s hand, had not been signed on a daily or weekly basis, record time on Mondays when the respondents assert that Mr Ram never worked Mondays, and overlapped with dates which record different time entries for the same days;[185]
[185] See [3.30]-[3.47] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
c)the inherent implausibility of an illiterate employee being given responsibility to maintain his own time records;[186]
[186] See [1.3(f)] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
d)the fact that only four of the ten workers at the company in the 2008 financial year and the 2009 financial year are recorded as having received any payment of wages, with the clear implication that the BAS statements prepared and submitted to the ATO were untrue;[187]
e)the Jones v Dunkel inference raised by the failure to call Mr Ashish, especially where the respondents were aware that Mr Ashish had already told the police that he had not driven Mr Ram from the Trivedis’ home to the Restaurant;[188]
f)the inaccuracies in the payroll advices produced by the respondents, along with evidence that they were prepared by the respondents' accountant based on bank statements, rather than signed by Mr Ram at the time of receipt of wages;[189]
g)the discrepancies between the payroll advices and the bank statements;[190]
h)the failure by Mr Ram to withdraw money which sat in his account for nine months after he left employment with the respondents;[191]
i)the respondents' evidence offering eight different starting times for Mr Ram, contrary to the time records;[192]
j)the implausibility of the evidence of Mr Trivedi with respect to matters such as:
i)why time records were kept for Mr Ram at all (where no time records were kept for any of the respondents' other employees such records were not relevant to the calculation of Mr Ram’s fixed income under contract);[193] and
ii)the Trivedis' actual income.[194]
[187] See [1.6(c)] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
[188] See [3.5]-[3.7] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
[189] See [3.15]-[3.16] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
[190] See [3.21]-[3.23] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
[191] See [3.27] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
[192] See [3.45]-[3.47] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
[193] See [1.3(g)] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
[194] See [3.52]-[3.57] of Mr Ram’s Outline of Closing Submissions dated 14 October 2014.
Despite the characterisation given in the respondents' outline of submissions, the evidence presented by the respondents was neither "credible" nor "frank". I confirm that I accept the evidence of Mr Ram over the evidence of the respondents, whenever there is conflict between the respondents' and Mr Ram’s evidence.
Abuse of the class 457 visa
The established facts of this case point to a grotesque abuse of the 457 visa programme. The starting proposition that the respondents were unable to find an Indian chef in Australia is risible. The obvious purpose of Mr Ram being trafficked to Australia under the visa programme was for his exploitation in breach of Australian law. Mr Ram was kept by his employer in conditions akin to slavery. When the Department of Immigration eventually investigated his circumstances, its officials were fobbed off with lies and fabricated documents. It was only when Mr Ram escaped and went to the police that action was taken. This points to a failure of public administration and raises questions about the integrity of the class 457 visa programme.
Conclusion
What days and hours did Mr Ram work?
For all of the reasons set out above, I reject the respondents' denials and evidence as to the hours worked by Mr Ram. The respondents' evidence is unreliable.
Mr and Mrs Trivedi both gave sworn evidence that Exhibit A1 and Exhibit A2 are an accurate and contemporaneous record of the actual hours worked by Mr Ram.[195] It is painfully apparent that this is not the case, and that the respondents have instead constructed a false record of hours through which they have tried to mislead the Court.
[195] Mr Trivedi 's Affidavit at [29]; Mrs Trivedi's Affidavit at [15] and [16].
Mr Ram’s evidence is that during the Period, he worked 12 hours a day, 7 days a week and only had one day off, Christmas Day 2007. This comes to a total of 5856 hours, comprising of: [196]
a)2658 ordinary hours;
b)1410 overtime hours;
c)828 Saturday hours;
d)840 Sunday hours; and
e)120 public holiday hours.
[196] See Amended Schedule A for weekly breakdown of this calculation. In preparing this calculation, Mr Ram has allowed for weekend rates to apply prior to overtime rates, to the benefit of the Respondents.
The respondents have not challenged Mr Ram’s calculations in the Amended Schedule A of his Opening Submissions[197] which produces the total of 5,856 hours.
[197] Amended Schedule A of the Opening Submissions was handed up at the opening of the case, along with a "Schedule A - Summary". There was a slight error in the Amended Schedule A figures, which has been corrected in the "Schedule A - Summary". This has involved transferring 12 overtime hours to the Saturday hours column. A copy of the "Schedule A - Summary" was attached to the Closing Submissions, along with the corrected Further Amended Schedule A.
Mr Ram gave consistent evidence to the AFP and to this Court as to the hours he worked. His evidence is supported by the telephone records of calls between the Restaurant and the Trivedis’ home throughout the Period.
Mr Ram had no need to lie about the hours he worked as part of his complaint to the police in 2008 and his evidence in this respect has remained consistent over time. On the other hand, Mr Trivedi’s evidence as to the days and hours worked by Mr Ram has varied to suit the circumstances. Further, despite the fact that various other people worked at the Restaurant during the Period (including relatives of the Trivedis), none of those individuals has been called to provide evidence of the hours Mr Ram worked in the Restaurant.
I accept Mr Ram’s evidence.
How much was Mr Ram paid?
Wage entitlement
Based on the hours worked, Mr Ram was entitled to total wages of $126,707.64, comprising of the following:[198]
a)$41,722.61 for ordinary hours worked;
b)$44,261.94 for overtime hours worked;
c)$16,247.84 for Saturday hours worked;
d)$19,778.12 for Sunday hours worked; and
e)$4,697.13 for public holiday hours worked.
[198] See "Schedule A - Summary" and the Further Amended Schedule A for a weekly breakdown of this calculation.
Mr Ram was not paid in accordance with his entitlement. The only payments which he received were the foreign exchange transfers to his wife in India, totalling $6,958.88, and the amount withdrawn with the assistance of the AFP from the bank account opened in his name, being $2,786.22 (excluding the $900 ATO bonus payment made on 28 April 2009). I find that there was an underpayment of $116,962.54.
Superannuation entitlement
Mr Ram was entitled to superannuation at the rate of 9 per cent of his Ordinary Time Earnings (OTE). OTE comprises wages for ordinary, weekend and public holiday hours worked. In this case, it excludes Mr Ram’s overtime hours. Therefore, Mr Ram’s OTE for the purposes of superannuation was $82,445.70, and 9 per cent of $82,445.70 is $7,420.11.
Mr Ram received superannuation payments in the amount of $4,005.[199] I find that there was an underpayment of superannuation of $3,415.11.
[199] AMP Super Member Statements, Exhibit #A9, tab 8.
Annual leave entitlement
The FWO calculated that under the contract, Mr Ram was entitled to 26.72 days of annual leave, and that the company was liable for unpaid annual leave entitlements in the amount of $5,053.57.[200] The respondents have not provided any defence or evidence in relation to the annual leave entitlement.
[200] Exhibit DR1, p.388-389 (Letter from FWO dated 21 December 2012).
I find that Mr Ram has been underpaid $5,053.57 in annual leave entitlements.
Total underpayment
I find that the total underpayment of wages, superannuation and annual leave entitlements to Mr Ram is $125,431.22.
Interest
Mr Ram applies for an interest order under s.76(2) of the Federal Circuit Court of Australia Act 1999 (Cth) on the sum for judgment, from 5 December 2008 until the date of judgment. I will award interest consistently with that Act and s.722 of the Workplace Relations Act.
The total underpayment is $125,431.22. Interest on that sum in accordance with the rates prescribed by the Federal Court Rules is :
a)$57,408.97 up until 7 November 2014; and
b)$23.18 per day thereafter.
Liability
I find that both the company and Mr Trivedi breached the Award and the Workplace Relations Act, as well as the contract of employment. Mr Trivedi bears accessorial liability consistently with the submissions outlined at [43]-[49] above. The respondents are jointly and severally liable to compensate Mr Ram in respect of the established contraventions. In particular, Mr Trivedi is liable in tort for inducing the company to breach the employment contract on the basis alleged by Mr Ram at [64]-[70] above. Accordingly, I will order that the company and Mr Trivedi pay the amount of $125,431.22 in respect of underpayment of Mr Ram’s ordinary, weekend and public holiday wages, overtime, annual leave entitlements and superannuation, plus interest.
I will dismiss the company’s cross-claim.
I will hear the parties as to penalties and any issue of costs.
I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 March 2015
[18] As noted above, the sum of $6,958.88 was transferred to Mr Ram’s wife in India. Further, Mr Trivedi gave Mr Ram $40 on one occasion (Mr Ram’s Affidavit affirmed 30 May 2014 at [41].Although Mr Ram does not rely on their accuracy, it is noted that the witness statements obtained by the Australian Federal Police and contained in the Prosecution Brief refer to a further six employees of the respondents during the relevant Period: Mr Mansimranjit Singh Sandhu (AFP Statement of Mansimranjit Singh Sandhu at [16] - Exhibit#A10, tab 11); Mr Kamal Sohi (AFP Statement of Rajat Ashish at [7] and [8] - Exhibit#A10, tab 12 and AFP Statement of Ravinder Singh Sandhu at [9] - Exhibit#A10, tab 10); a kitchen hand called Prince (AFP Statement of Rajat Ashish at [49] - of Exhibit#A10, tab 12); Harry (AFP Statement of Ravinder Singh Sandhu at [9] Exhibit#A10, tab 10); Manjinder Kaur (AFP Statement of Ravinder Singh Sandhu at [9] - Exhibit#A10, tab 10); and Urbi (AFP Statement of Ravinder Singh Sandhu at [9] - Exhibit#A10, tab 10).
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