Santosa v Ascomation Pty Ltd (Emerson Automation Solution)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Santosa v Ascomation Pty Ltd (Emerson Automation Solution) [2021] FedCFamC2G 227

File number(s): SYG 2360 of 2020
Judgment of: JUDGE DRIVER
Date of judgment: 1 December 2021
Catchwords: INDUSTRIAL LAW – FAIR WORK – Asserted adverse action – complaints of underpayment and exploitation – alleged exclusion from ongoing employment – alleged discrimination – application dismissed.
Legislation:

Australian Consumer Law s 236

Fair Work Act 2009 (Cth) ss 340, 342, 345, 351, 357, 361, 550

Fair Work Regulations 2009 (Cth)

Cases cited:

Abram v Bank of New Zealand (1996) ATPR ¶41-507

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Construction, Forestry, Mining and Energy Union  v Coal and Allied Operations Pty Ltd [1999] FCA 1531

Construction, Forestry, Mining and Energy Union v State of Victoria (2013) 302 ALR 1

Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99

State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160

Stephens v Australian Postal Corporation [2014] FCA 732

WorkPac Pty Ltd v Rossato [2021] HCA 23

Division: Division 2 General Federal Law
Number of paragraphs: 96
Date of last submissions: 11 October 2021
Dates of hearing: 5-7 October 2021
Place: Sydney
The Applicant appeared in person
Counsel for the First Respondent: Ms L Saunders
Solicitors for the First Respondent: Maddocks Lawyers
Solicitor for the Second Respondent: Mr D Taylor of Segelov Taylor Lawyers

ORDERS

SYG 2360 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

LILY SANTOSA

Applicant

AND:

ASCOMATION PTY LTD (EMERSON AUTOMATION SOLUTION)

First Respondent

HAYS SPECIALIST RECRUITMENT AUSTRALIA PTY LTD

Second Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

1 DECEMBER 2021

THE COURT ORDERS THAT:

1.The application as amended on 2 December 2020 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

  1. By amended application lodged on 2 December 2020 and filed on 4 December 2020, the applicant, Ms Santosa, claims compensation under the Fair Work Act 2009 (Cth) (Fair Work Act) alleging contravention of a general protection. Although Ms Santosa also claimed discrimination contrary to s 351 of the Fair Work Act, no evidence was presented which could conceivably support her claim of race, gender and age discrimination.

  2. The Form 4 filed with the application contains in a discursive format allegations made by Ms Santosa against the first respondent, Ascomation Pty Ltd (Emerson Automation Solution)…

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Details
Case
[2021] FedCFamC2G 227
Decision Date

CaseChat Overview and Summary

Santosa v Ascomation Pty Ltd (Emerson Automation Solution involved Ms Santosa, who alleged she was subjected to underpayment, exploitation, and discriminatory practices during her employment with Ascomation, a subsidiary of Emerson Automation Solution, facilitated by Hays, a recruitment agency. The case was heard in the Fair Work Commission, where Ms Santosa sought redress for what she claimed were various breaches of employment law. The legal issues before the Court were whether Ms Santosa's allegations of underpayment, exploitation, and discrimination were substantiated, and if Ascomation had taken adverse action against her. The Court needed to determine if Ms Santosa had been exploited beyond her advertised role and if the pay increases she received were adequate. Furthermore, the Court had to decide whether Ascomation's actions constituted adverse action under the Fair Work Act.

The Court examined the evidence provided by both Ms Santosa and Ascomation, which included affidavits, emails, and other documents. Ms Santosa presented a substantial volume of documents and her own affidavits, while Ascomation relied on affidavits from its management and Hays. The Court found that Ms Santosa's allegations had not been substantiated. It was determined that her assignment with Ascomation concluded as planned, and there was no evidence of underpayment or exploitation beyond the agreed terms of her employment. Ms Logan, a person who investigated Ms Santosa's complaints, concluded that none of the allegations were substantiated. The Court also noted that Ms Santosa's role was accurately described at the time of her hiring, and her pay rate was adjusted as per the agreed terms.

The Court dismissed Ms Santosa's application, finding that she could not establish any of the elements of her claim. It concluded that the evidence did not support her assertions of exploitation or underpayment, and no adverse action had been taken against her by Ascomation. The Court ordered that the application be dismissed with no orders for costs. This decision underscores the importance of substantiating claims in employment disputes and highlights the Court's role in ensuring that allegations are properly supported by evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms Logan concluded that none of the allegations had been substantiated. Ms Santosa’s assignment at Ascomation ended as planned on 30 May 2020.THE EVIDENCE AND SUBMISSIONS Ms Santosa relies upon her own affidavits made on 16 April 2021 and 4 July 2021, to which were annexed a substantial volume of documents. Ms Santosa was cross-examined on her affidavits. Ascomation relies upon affidavits made on 31 May 2021 by Mr Lee and Mr Wang and made on 1 June 2021 by Ms Logan and Ms Sun. They were each cross-examined on their affidavits. Hays relies upon the affidavit of Ms Emma Tillotson made on 1 June 2021. Ms Tillotson was also required for cross-examination. I also received the following exhibits:·A1 Email from Ms Tillotson to Mr Lee, 12/05/2020;·A2 Email from Mr Piazza to Ms Logan concerning Ms Santosa, 28/05/2020;·A3 Requisition approval, 19/06/2019;·A4 Email from Ms Hazel Cheah to DL ASO ASIA Australia and DL ASCO ASIA New Zealand distribution lists – “Organization Announcement - Julia Andrea Deharta”, 19/05/2020;·A5 Job advertisement, “Job Details”, June 2019;·A6 Email from Ms Tillotson to Mr Lee - pay increase for Ms Santosa, 10/10/2019. The respondents provided pre-hearing written submissions and the parties made oral submissions at the trial which ran over three days on 5-7 October 2021. Ms Santosa provided a powerpoint document after the hearing, which I treated as a submission.CONSIDERATION In June 2019 Ms Santosa responded to an advertisement posted by Hays for a data entry role. She completed a candidate registration form, and was interviewed by representatives of Hays, and then Ascomation[17]. [17] Affidavit of Ms Tillotson, [13], CB 509 On 28 June 2019 Ms Santosa was offered the temporary assignment on a casual basis with Ascomation. The role was identified as a data entry role, classified at Level 1 under the Clerks Private Sector Award. She was advised that the rate of pay for the position was $27 per hour and Ms Santosa accepted the assignment on these terms. The assignment was anticipated to be for an initial period of four months[18].[18]ibid In October 2019 the anticipated end date of the casual assignment was extended for a further four months until February 2020[19].[19]First Affidavit of Ms Santosa, [27], CB 166 Following discussions with Hays and Ascomation in January 2020 the rate of pay was retrospectively increased to $28.04 for the period from 1 July 2019, and to $30.47 for the period from 1 January 2020[20]. [20]First Affidavit of Ms Santosa, [35]-[36], CB 166 On 26 February 2020 Hays was advised that the anticipated end date of the casual assignment would be extended until 30 April 2020. This decision was confirmed on 9 April 2020 and Ms Santosa was advised of the fact. Ms Santosa asked Hays for an extension, which was in turn communicated to Ascomation. Ascomation subsequently advised of a further extension to the anticipated end date of the casual assignment until the end of May 2020[21].[21] Affidavit of Ms Tillotson, [38]–[41], CB 514

Decision

Reasons for decision

Ms Santosa does not in the amended application or in submissions, allege an Award underpayment. The Court could not proceed on the basis that such an allegation was properly made as to do so would be unfair to Hays.CONCLUSION I conclude that Ms Santosa is unable to establish any of the elements of her claim. I will order that the application be dismissed.

Ratio Decidendi

Legal Principle Established

The respondents provided pre-hearing written submissions and the parties made oral submissions at the trial which ran over three days on 5-7 October 2021. Ms Santosa provided a powerpoint document after the hearing, which I treated as a submission.CONSIDERATION In June 2019 Ms Santosa responded to an advertisement posted by Hays for a data entry role. She completed a candidate registration form, and was interviewed by representatives of Hays, and then Ascomation[17]. [17] Affidavit of Ms Tillotson, [13], CB 509 On 28 June 2019 Ms Santosa was offered the temporary assignment on a casual basis with Ascomation. The role was identified as a data entry role, classified at Level 1 under the Clerks Private Sector Award. She was advised that the rate of pay for the position was $27 per hour and Ms Santosa accepted the assignment on these terms. The assignment was anticipated to be for an initial period of four months[18].[18]ibid In October 2019 the anticipated end date of the casual assignment was extended for a further four months until February 2020[19].[19]First Affidavit of Ms Santosa, [27], CB 166 Following discussions with Hays and Ascomation in January 2020 the rate of pay was retrospectively increased to $28.04 for the period from 1 July 2019, and to $30.47 for the period from 1 January 2020[20]. [20]First Affidavit of Ms Santosa, [35]-[36], CB 166 On 26 February 2020 Hays was advised that the anticipated end date of the casual assignment would be extended until 30 April 2020. This decision was confirmed on 9 April 2020 and Ms Santosa was advised of the fact. Ms Santosa asked Hays for an extension, which was in turn communicated to Ascomation. Ascomation subsequently advised of a further extension to the anticipated end date of the casual assignment until the end of May 2020[21].[21] Affidavit of Ms Tillotson, [38]–[41], CB 514 In May 2020 Ms Santosa made a series of complaints about the conduct of officers of Ascomation. These were investigated and addressed by Ascomation. Hays was not the subject of any allegation in the complaints, was not advised of the complaints and was not involved in addressing the complaints. The assignment ended 29 May 2020. Following the end of the assignment, Hays employees received emails from Ms Santosa which were regarded as abusive[22]. [22]Affidavit of Ms Tillotson, [50]–[51], CB 515Ms Santosa’s case against Ascomation The period of employment in issue followed a long period of some 15 years in which Ms Santosa was out of the workforce due to family responsibilities. She gave evidence, which I accept, that she was keen to obtain and retain employment and she understood that the job in which she was placed with Ascomation by Hays was a relatively mechanical operation of data entry. She asserts that it was apparent in the first week when she was trained by Ms Penzes that the job was bigger than a simple data entry job. In essence, Ms Santosa asserts that she was exploited by Ascomation and required to undertake duties which went well beyond the simple data entry job that she anticipated. She complained about this but asserts that she was fended off by promises that in due course she could expect to be placed in the job directly with Ascomation on a full time basis. That did not occur. The job was advertised in early 2020 and Ms Santosa claims that the advertisement was, in effect, concealed from her. When she complained about that she was told that a review was being undertaken and that the job would not be filled at all. Ms Santosa’s contract was extended several times until the end of May 2020 but her employment duties came to an end slightly earlier than that when Ascomation cut off Ms Santosa’s computer access and directed her not to return to the workplace. Ms Santosa, it appeared, subsequently severed her connection with Hays. She had complained to Hays several time about the rate of pay and had received modest increases which Ms Santosa regards as inadequate.Section 340