Santosa v Ascomation Pty Ltd (Emerson Automation Solution)
[2021] FedCFamC2G 227
•1 December 2021
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
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.
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) (Ascomation) and the second respondent, Hays Specialist Recruitment Australia (Hays).
The material background facts relating to this matter are as follows.
Ascomation is a component manufacturer based in Sydney. It is part of the multi-national Emerson manufacturing group.
In mid-2019, Ascomation’s long-term Operations Coordinator, Ms Mariann Penzes, gave notice of her resignation. The business decided to back-fill part of her role, the data entry aspects relating to matters like purchase orders and shipment entries, on a temporary basis, whilst it decided whether to fill the position locally, or outsource part of it overseas.[1] It engaged Hays to supply labour for this purpose.[2]
[1] Affidavit of Ms Shirley Sun, [8], (Court Book) CB 459, 466
[2] Affidavit of Mr Lee, [8]-[13], CB 312
Ms Santosa had at that time signed terms of engagement with Hays.[3] It put her forward for the job. She was interviewed by Mr Avery Lee and Mr John Wang, Ascomation managers, and was successful.
[3] Affidavit of Ms Emma Tillotson, [13](e), CB 510
As a result, Ms Santosa commenced casual employment with Hays on 1 July 2019, and was assigned to work at Ascomation starting that day. Hays classified her under the Clerks – Private Sector Award 2010 (Clerks Private Sector Award) as a “Level 1 - Year 1” classification and paid her on that basis, plus a $1.09 above-award component.[4]
[4] Affidavit of Ms Tillotson, CB 538
A detailed chronology was filed by Ascomation setting out the events that followed. In short, however, throughout her employment Ms Santosa repeatedly complained about her rate of pay and the fact of her engagement as a labour hire worker rather than being directly employed by Ascomation.
Ascomation referred each complaint to Hays, asking it to confirm the pay rate was correct. It was repeatedly assured that the rate had been reviewed by its specialists and was correct.[5] Hays, although confident that it had correctly classified Ms Santosa, nevertheless raised her rate of pay twice (backpaying on both occasions).[6]
[5] See eg, Affidavit of Ms Tillotson [26], CB512; Affidavit of Ms Sue Logan, CB 414
[6] Affidavit of Ms Tillotson, [29]-[31], CB 513
On 14 February 2020, Ascomation advertised a permanent job opening in the position of Operations Coordinator, Ms Penzes’ full role, not the more limited version Ms Santosa was performing.[7]
[7] Affidavit of Mr Lee, CB 340-341
The advertisement was emailed to an all-staff email list which Ms Santosa, as a labour hire employee, was not on.[8] It was also placed on noticeboards in the office.[9]
[8] Affidavit of Ms Sun, [19], CB 461
[9] Affidavit of Mr Lee, [40], CB 317
Shortly after this, however, Ascomation made a decision not to proceed with any recruitment for this role. Instead, it decided to split the functions across the business, with part going overseas, and the remaining functions to be allocated to an existing employee.[10] This decision was made above the level of Ascomation local management.
[10] Affidavit of Ms Sun, [24], CB 461
As a result of this decision, the need for Ms Santosa’s role ended. On 5 March 2020, Mr Lee and Mr Wang advised her that her assignment would conclude at the end of April for this reason.[11]
[11] Affidavit of Mr Lee, [44]-[54], CB 317-318
Ms Santosa made further complaints about her rate of pay, and not being offered a permanent position. Ascomation raised the pay issue with Hays and in the interim extended Ms Santosa’s contract for a further month due to unexpected internal staffing issues.[12]
[12] Affidavit of Mr Lee, [58]-[58], CB 317; CB 343-348
On 4 May 2020, Ms Santosa contacted Human Resources, making complaints of bullying and discrimination, as well as reiterating her complaint about pay.[13] Although Ms Sue Logan, the Human Resources Director, responded trying to arrange a time to talk, Ms Santosa instead emailed the Asia Pacific President to reiterate her complaints, alleging discrimination on the basis of race (not being a Chinese speaker), age and “cognitive” (being overqualified for the role).[14]
[13] Affidavit of Ms Logan, CB 389-391
[14] Affidavit of Ms Logan, CB 393-304
Ascomation assigned Ms Logan and Ms Shirley Sun to investigate. In the interim, Ms Santosa allegedly continued to send increasingly aggressive emails and made a derogatory post on Emerson’s website.[15] Her access was blocked, but she remained employed.
[15] Affidavit of Ms Logan, [19]-[20], CB 383
Ms Logan travelled to Sydney to interview Ms Santosa and otherwise investigate. Ms Logan deposes that Ms Santosa behaved erratically through the interview:
(a)first, insisting on Mr Wang being her support person, then yelling at him when he entered the room and repeatedly calling him a liar;
(b)loudly talking over Ms Sun and accusing her of lying as she attempted to explain the issue with the distribution list; and
(c)refusing to engage with Ms Logan as she attempted to explain Hays’ response about her pay rate.[16]
[16] Affidavit of Ms Logan, [30]-[54], CB 385-387
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
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 515
Ms 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
At [19] of the amended application, Ms Santosa alleges that Ascomation took adverse action against her in four ways, said to be in contravention of s 340 of the Fair Work Act. This appears to also be the case for [20] of the amended application.
It is not sufficient for an applicant to demonstrate that adverse action was taken against them; what must be shown is that the action was taken for some reason prohibited by Part 3-1 of the Fair Work Act.
In relation to s 361(1), where it is alleged that a person took action for a particular reason, it is presumed that this action was taken for that reason unless the person proves otherwise. However, this does not relieve the applicant of the obligation to establish the “objective facts” forming the basis of the person’s conduct.[23]
[23] Stephens v Australian Postal Corporation [2014] FCA 732 at [13]; Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 at [162] relating to an analogous provision of the Workplace Relations Act 1996 (Cth)
In the context of s 340, it is not sufficient to establish simply the fact of adverse action and the fact of a complaint being made: a prima facie connection must be available on the material provided.
Even when this is done, clear and reliable evidence as to the actual reason the action was taken will be sufficient to discharge the evidentiary burden imposed by s 361.[24]
[24] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 517
[19.1] of the amended application – the rescinding of an offer of full time employment
At [19.1] of her amended application, Ms Santosa contends that Ascomation, in response to her raising a complaint about her employment status and pay, rescinded an offer of full time employment and instead extended her contract.
Ms Santosa has not established that any such guarantee, which she claims was made orally by Mr Wang, ever existed. Her evidence is vague at best. Mr Wang, for his part, has denied giving any such assurances,[25] and is corroborated by Mr Lee in this respect.[26]
[25] Affidavit of Mr Wang, [13], CB 358; [20]-[21], CB 359-340
[26] Affidavit of Mr Lee, [16], CB 313
The denials of Mr Lee and Mr Wang are consistent with the objectively ascertainable background facts, notably:
(a)first, the decision to employ a person in a temporary role while a decision was made. This indicated ongoing uncertainty as to whether or not the role would continue, that is incompatible with offering someone a role; and
(b)secondly, the fact that nobody was in fact permanently engaged in the particular position formerly occupied by Ms Santosa.
It is inherently unlikely in these circumstances that Mr Wang would have made any such guarantee.
In any event, Ms Santosa has not identified any causal link between her making the complaints and any such decision. Ascomation treated Ms Santosa’s complaints seriously, properly investigating each one, and continued to extend her contract after they had occurred. Its reaction, in other words, was completely at odds with any impression of retribution.
[19.2], [20.1] of the amended application – not including Ms Santosa on the email list
At [19.2] of the amended application, Ms Santosa alleges that by “advertising the role that [she] was doing to everyone in the world, except [her]”, Ascomation took adverse action against her. This is repeated at [20.2].
I accept that excluding a person from candidacy for a role is capable of constituting adverse action. However, here, Ms Santosa was not in fact so excluded; she was left off one email list. The advertisement was available to her in the workplace, and she was plainly able to find it.
Even if being left off a mailing list could be considered adverse action in the relevant sense, Ascomation’s evidence reveals that this had nothing to do with Ms Santosa’s complaints. Ms Santosa was not on the list because she was not an employee of Ascomation. There is no suggestion that the person who sent the email, or indeed anyone involved, was alert to this issue at the time. Ms Santosa’s claims that Mr Wang deliberately removed her are baseless.
[19.3] of the amended application – role not extended
To the extent that it can be understood, the application at [19.3] appears to claim that Ascomation did not extend Ms Santosa’s contract because she had made complaints.
This is not supported by any evidence. Ascomation’s evidence shows that:
(a)the role was always intended to be temporary, to allow continuity of certain services while a decision was made as to how the role would be performed long-term;
(b)that decision was ultimately made, and accordingly the need for a temporary role lapsed;[27] and
(c)accordingly, Ms Santosa’s assignment was ended.
[27] Affidavit of Mr Lee, [42], CB 317; Affidavit of Ms Sun, [24], CB 461
There is not even a temporal connection between Ms Santosa’s complaints and the ending of her contract. Indeed it was, as set out above, extended during the period when she was most actively making complaints.[28]
[28] Affidavit of Ms Sun, CB 471
[19.4] of the amended application – cutting off access to work
At [19.4], Ms Santosa alleges that, in response to her making her official complaint, her access to work systems was immediately cut off.
Ms Santosa made her official complaints on 4[29] and 7[30] May 2020. Ascomation’s response was to immediately commence an investigation.
[29] Affidavit of Ms Logan, CB 389-391
[30] Affidavit of Ms Logan, CB 393-394
Ms Santosa’s systems access was removed on 21 May 2020, after she made a post on Ascomation’s website which was regarded as derogatory.[31] This was an outward facing (ie publicly viewable) page and the posting of such content was treated as improper. It was this conduct, not her complaints, that triggered the removal of her access.
[31] Affidavit of Ms Logan, [19]-[20], CB 383
[20.1] of the amended application – altering the position?
At [20.1], Ms Santosa claims that her position was altered to her prejudice by it being a “higher role” than that encompassed by Level 1, Year 1 of the Clerks Private Sector Award.
This amounts to an allegation that Ms Santosa was underpaid by Hays during her employment. It seems to rest on a misunderstanding of the nature of her role compared to that held by Ms Penzes, and an overstatement of her job tasks.[32]
[32] see, eg Affidavit of Ms Tillotson, CB 611-612
Ms Santosa has not identified any basis upon which she would be legally entitled to a higher rate of pay.
In any event, her employer Hays would be responsible for any contravention in this respect. Ascomation relied, as it was entitled to, on its repeated assurances that Hays’ specialist teams had confirmed that it was paying the correct rate.
[20.3] of the amended application – access to the office
At [20.3], Ms Santosa alleges that she was not given PIN access to the office until December 2019. It is not clear the basis upon which she says this was a contravention of the Fair Work Act.
Mr Lee, in any event, has explained in his statement that this was simply a logistical decision, in keeping with his ordinary practice in respect of casuals and contractors.[33] Ms Santosa had no need for key code access, as her hours coincided with office opening hours. He ultimately gave her access in December 2019, after she had been in the role for a while, at the same time as the two contractors referred to in her application.[34]
[33] Affidavit of Mr Lee, [17], CB 313
[34] Affidavit of Mr Lee, [21], CB 314
Section 351
At [21] of the amended application, Ms Santosa relies on s 351, claiming to have been subjected to some of the adverse action discussed above, namely exclusion from the distribution list and not being given an access pass due to her race or alternatively her age. In addition she claims that she was not hired on an ongoing basis for this reason.
The first two assertions fail for the reasons set out above. As for the latter, there is no evidence to suggest that the decision to have part of the role performed by an existing staff member, ie not increasing headcount, had anything to do with matters other than logistical considerations. Ms Santosa has not established a prima facie connection between these matters and her race or age.
A permanent employee?
At [22] of the amended application, Ms Santosa appears to contend that she was not a casual Hays employee, but in fact was a full time permanent employee of Ascomation.
Ms Santosa does not identify any basis upon which this is said to be so. The employment arrangement on its face is an orthodox labour hire one, filling a position always intended to be temporary. No support for it can be found in the contract between her and Hays, the express terms of which make her a casual employee and should be preferred.[35]
[35] WorkPac Pty Ltd v Rossato [2021] HCA 23 at [65]
In any event, Ms Santosa does not identify any consequence which would flow from this, or claim any damage in this respect.
Sham contracting
At [23], Ms Santosa alleges a breach of s 357 of the Fair Work Act, which makes it unlawful for a person employing a person to represent to that person that they would perform work as an independent contractor.
On Ms Santosa’s own case, she understood at all times that she was employed casually by Hays to work on assignment at Ascomation. No representations as to her having status as an independent contractor, rather than an employee, were made by either Hays or Ascomation.
Other matters
In her oral submissions, Ms Santosa referred to the Australian Consumer Law and suggested that she may have been the victim of misleading and deceptive conduct, although she conceded this was not part of her application or claim. I have nevertheless considered whether the established facts may support a claim for false or misleading representations contrary to s 345 of the Fair Work Act, which is in the following terms:
(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b)the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
It is apparent that Ms Santosa had particular perceptions and expectations of her assignment at Ascomation. It is equally clear that these did not align with reality: she was a labour hire employee engaged in a conventional manner through a third party supplier to perform low level data entry and administrative tasks, as a stop-gap while the business determined how to structure its operations going forward. Once it did, the need for temporary support ended and her role concluded.
To the extent that Ms Santosa asserts that the nature of the job was misrepresented, it is clear from her own evidence that she dealt with this by pursuing what might loosely be described as a “work value claim” within Ascomation and with Hays. She did receive increases in remuneration although not enough to satisfy her.
To the extent that Ms Santosa asserts that she was induced to remain in the job by false representations of continuing and ultimately full time employment with Ascomation (rather than through Hays), it is apparent that if any such representations were made, they were honestly held at the time they were made. The reality is that the support function performed by Ms Santosa was in a state of flux due to a review of various support positions within the global enterprise which ultimately resulted in the function being substantially transferred to the Manila office of the business. I am not persuaded that there was any breach of s 345 of the Fair Work Act.
Ms Santosa’s case against Hays
The Court can only determine the case brought by Ms Santosa. The Court cannot make a finding against a respondent on a basis not raised by Ms Santosa, even vaguely, in the application on which this matter proceeds.
Ms Santosa proceeds on an amended application filed on 4 December 2020. The amended application alleges contraventions of the general protections provisions of the Fair Work Act[36], referred to above in relation to the case against Ascomation.
[36]CB 9
The amended application is not in regular, proper or easily understandable form. The alleged contraventions of the Fair Work Act are set out in “Part G – Contravention(s) alleged”[37]. The central allegations are at CB 14, and then further text above a dotted line on CB 15. The application then alternates into a narrative of Ms Santosa’s experience without allegations. At [19] of Part G of the application it reverts to allegations of breaches of legal obligations, and then alternates between narrative and allegations for the balance of the document. The clearest articulation of her case is at [19], [21] and [23][38].
[37]CB 14
[38]CB 24-28
All of the assserted breaches of legal obligations are breaches of the general protections provisions of the Fair Work Act. Ms Santosa makes no allegations of breaches of any provision of the applicable Modern Award.
As discussed above, Ms Santosa’s case is that Ascomation:
(a)withdrew an offer of full time employment in response to her raising a complaint relating to her employment and in so doing contravened s 340 of the Fair Work Act;
(b)withdrew an offer of full time employment for prohibited reasons (as provided for in s 351) and in so doing contravened s 351 of the Fair Work Act;
(c)excluded Ms Santosa from an email list in response to her raising a complaint relating to her employment and in so doing contravened s 340 of the Fair Work Act;
(d)changed the company business plan in response to her raising a complaint relating to her employment and in so doing contravened s 340 of the Fair Work Act;
(e)refused to extend her role because she raised a complaint relating to her employment and in so doing contravened s 340 of the Fair Work Act; and
(f)cut off her access to work systems in response to her raising a complaint relating to her employment and in so doing contravened s 340 of the Fair Work Act.
At the bottom of page 5 of the amended application, Ms Santosa lists 10 items of alleged adverse action. Each of these allegations is made against Ascomation only.
There is no allegation of accessorial liability made against Hays and the Court cannot deal with the matter as if there was. However, if there was such an allegation then Hays’ liability in respect of these matters could only arise both:
(a)if there is a finding against Ascomation, and
(b)if there is a finding that Hays was involved in the contraventions on the basis of the accessorial liability provisions at s 550 of the Fair Work Act.
In respect of Ascomation’s liability, the evidence does not support any finding that Ascomation engaged in adverse action. Ascomation was not Ms Santosa’s employer. Items 3 and 4 of s 342 apply[39], as does potentially Item 2. Item 1 has no application.
[39] The definition of “independent contractor” in the Fair Work Act has broad application, Construction, Forestry, Mining and Energy Union v State of Victoria (2013) 302 ALR 1 at [152]; this issue confirmed on appeal, although the appeal was allowed: State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 at [119]-[120]
It is uncontroversial that Ms Santosa made complaints or enquiries about her employment. There were three: the first was the complaint about her rate of pay. The second was the complaint in March about being left off the email list. The third was the complaint in May 2020 about Mr Lee and Mr Wang. It appears that Ms Santosa only alleges that the second and third caused the adverse action.
The evidence revealed acts of adverse action alleged did not occur, or that they were unrelated to the complaints or enquiries. Specifically:
(a)no offer of full time employment was ever made. As such the Court could not find that there was any action in breach of s 340 or s 351 on this point; and
(b)none of the alleged adverse action was contemporaneous with the second complaint. The third complaint arose after the decision to end the assignment had been made.
The evidence was that both Ascomation and Hays took the concerns expressed by Ms Santosa seriously, and sought to investigate them and deal with them thoroughly and fairly at all times. When the complaints (as they initially were) related to her rate of pay, Ascomation suggested correctly that she should contact Hays and ask it to assess whether she was being correctly paid. In respect of the third complaint, Ascomation caused a senior officer to fly to Sydney for the purpose of meeting Ms Santosa and considering her allegations.
Ms Santosa, on the other hand, behaved poorly. She issued communications which officers of Ascomation found offensive to staff. She made statements against officers of Ascomation[40] which reflect racial stereotypes. She did not answer phone calls from Hays and refused to provide material as requested.
[40]CB 44
None of the adverse action identified was taken because of Ms Santosa raising a complaint or enquiry, or because of her race or gender.
Accordingly, Hays submits, and I accept that no finding could be made against Ascomation.
Even if there was to be a finding against Ascomation on any of these matters, no finding could be made against Hays as being involved in the contravention. Section 550 requires that the accessory:
(a)aided, abetted, counselled or procured the contravention; or
(b)induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)conspired with others to affect the contravention.
Ms Santosa conceded that Hays had no knowledge or involvement in the second complaint or enquiry, the one associated with the adverse action. Aside from the decision to end the assignment, there is no evidence that Hays was aware at the time of the decisions that are said to constitute adverse action. Ms Santosa does not allege, directly or even inferentially the constituent elements of involvement against Hays. The reverse onus does apply in respect of accessorial liability[41].
[41] Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 at [448]
Ms Santosa also alleges a breach of s 357 of the Fair Work Act. That section prohibits an employer misrepresenting to an employee or prospective employee that a contract of employment is a contract for services. In the context of the facts in this case, the allegation is misconceived.
Ms Santosa also makes other allegations which do not arise under the general protections provisions or at law. These allegations appear to include that:
(a)Ascomation was her true employer; and
(b)she was not a casual employee.
In evidence Ms Santosa agreed that she was at all times a causal employee of Hays. It is not controversial that Hays paid her, under the terms of a casual employment agreement it reached with her. Given the decision of the High Court in Rossato, any claim that she was not, as a matter of law, a casual employee of Hays must fail.
In her closing oral submissions and powerpoint post hearing submissions, Ms Santosa seeks to introduce new allegations, being a breach of:
(a)section 236 of the Australian Consumer Law;
(b)an Award obligation to provide 10-minute break; and
(c)the obligation to provide the Fair Work Information Statement[42].
[42] Notwithstanding the submission above, the evidence reveals the applicant was provided the Fair Work Information Statement in compliance with the Fair Work Act and Regulations. Fair Work regulation 2.02 provides that the statement may be provided by way of an electronic link contained in an email (regulation 2.02(5)). This was done (CB 542)
Ms Santosa is a self-represented litigant. The role of the Court in dealing with unrepresented litigants is significant. I regarded it as appropriate for me to provide greater assistance to Ms Santosa because of this. The level of assistance that should be provided will depend upon the circumstances of the case, including the identity of the litigant, the nature of the case, and the litigant’s intelligence and understanding of it[43]. The level of assistance that should be provided is incapable of precise definition[44].
[43]Abram v Bank of New Zealand (1996) ATPR ¶41-507 at [31]
[44]Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129
I provided Ms Santosa significant assistance and leeway in the presentation of her case. I also note that the material prepared by Ms Santosa in the current case is detailed. In her amended application Ms Santosa identified a case theory which she has pursued. Her cross-examination has been thorough, well considered and of a high standard. She is clearly a person of significant intellect.
The assistance provided to Ms Santosa should not extend to allowing her to pursue a case not raised in her amended application. None of these allegations are raised in the amended application. Hays did not identify them as allegations made against it and did not adduce evidence to address them[45].
[45] It is conceded that the fact that she did not get a 10 minute break and did not receive the Fair Work Information Statement were noted in her lengthy evidence, albeit in passing. However, the second respondent did not identify either as allegation being pursued in the case
It would be unfair for Ms Santosa to be permitted to effectively amend her application by the terms of her submissions, particularly where the amendment would be to introduce new claims that could attract civil penalties. I have not dealt with any of the matters raised for the first time in closing submissions.
Ms Santosa’s submissions also allege that she considers she deserved to be paid a higher hourly rate of pay. There is no claim in her application that seeks to remedy an underpayment. Rather, the allegation is that she complained about her rate of pay and that that complaint is in respect of her employment and relevant for the purpose of adverse action.
In her submissions, Ms Santosa alleges that she should have been paid between $80 and $100 per hour,[46] by reference to market rates. She does not allege any contractual entitlement to that effect.
[46] around $800 a day
Such a case is misconceived and without legal foundation.
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.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 1 December 2021
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