Seindanis v Cabin Park Port Pirie Pty Ltd
[2025] FedCFamC2G 1580
•26 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Seindanis v Cabin Park Port Pirie Pty Ltd [2025] FedCFamC2G 1580
File number(s): ADG 11 of 2023 Judgment of: JUDGE LIVERIS Date of judgment: 26 September 2025 Catchwords: INDUSTRIAL LAW – FAIR WORK – whether the Hospitality Industry General Award 2020 applied – whether there was an agreement between the parties for the applicant to take annual leave – whether the applicant took annual leave during his employment – whether the applicant had a period of untaken annual leave when the employment ended – whether the second respondent is involved in the first respondent’s admitted contraventions of ss 535 and 536 of the Fair Work Act 2009 (Cth) Legislation: Fair Work Act 2009 (Cth) ss 87, 88, 90, 143, 535, 536, 545, 546, 550
Fair Work Regulations 2009 (Cth) rr 3.33, 3.34, 3.36
Hospitality Industry General Award 2020 cl 4.
Cases cited: Australian Building and Construction Commissioner v Hall [2017] FCA 274
Fair Work Ombudsman v Agile Group (Global) Pty Ltd [2025] FedCFamC2G 46
Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liq) (No 3) [2024] FCA 785
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No 2) [2018] FCCA 1935
Roebuck v Shopping Centres Australasia Property Group Re Limited [2024] FCA 503
Sabapathy v Viveganantham [2024] FedCFamC2G 666
Smith v Quasar Constructions Pty Ltd [2015] FCCA 557
Surveillance Australia Pty Ltd v Australian Federal of Air Pilots [2024] FWCFB 234
Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705
Division: Division 2 General Federal Law Number of paragraphs: 108 Date of hearing: 1-2 September 2025 Place: Darwin Counsel for the Applicant: Mr Dean Solicitor for the Applicant: Pana Legal Counsel for the Respondent: Mr Meagher Solicitor for the Respondent: Australian Business Lawyers ORDERS
ADG 11 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FOTIS SEINDANIS
Applicant
AND: CABIN PARK PORT PIRIE PTY LTD
First Respondent
HAYDEN JON BENTLEY
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
26 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The matter be listed for directions and procedural orders on 31 October 2025 at 9.30am at the Federal Circuit and Family Court of Australia (Division 2) Adelaide Registry.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS
Fotis Seindanis is known as Fred. He commenced his career as a clerk at Port Pirie Smelters in the 1970s and the early-1980s. In 1982, he leased the Terrace Chicken Bar. He managed and ran the entire operation of that very busy, 7-days a week business with his wife until the end of 2007 when they ended the lease. Mr Seindanis then went to work as a warehouse supervisor for FoodPlus for six months while his wife operated the Terrace Chicken Bar in the final days of the lease.
While he was working for FoodPlus, Mr Seindanis saw a job advertisement for Bentley’s Cabin Park. Bentley’s Cabin Park was established by Hayden Jon Bentley in 1995. It provides self-contained, high-quality cabins with beds, linen and kitchenettes. The clientele comprises of tourists and professional and workforce accommodation.
As a business, Bentley’s Cabin Park was conducted by Cabin Park Port Pirie Pty Ltd. Cabin Park Port Pirie was registered on 27 July 1995. The sole director and secretary is Mr Bentley.
Mr Seindanis submitted an application and resume in response to the advertisement that he saw and was interviewed by Mr Bentley. He was offered a job and he started work on 4 January 2008.
Mr Seindanis’ employment in 2008 is notable for a lack of formality and documentation. This is notwithstanding Mr Seindanis’ decades of experience as an employee and small business manager. It is also notwithstanding that Mr Bentley had been running the Cabin Park as a steadily growing business since 1995. Mr Bentley’s wife, Kylie Bentley, is employed at the Cabin Park, and has worked there for 27 years. She has a broad range of responsibilities, spanning from involvement in day-to-day operations, staff co-ordination and general business administration. She remains closely involved in all of the aspects of the business. Mrs Bentley originally worked full-time and lived on-site, but since 2001, her attendance at the Cabin Park has been on an as-needs basis.
Apart from the job advertisement, there is no written employment contract, salary arrangement, or job description. However, Mr Seindanis worked full-time, between 7:30am until 8:30pm. He was employed to work in the front office and perform duties including telephony, cashier services, information services and making reservations. He had a level of training appropriate to perform these tasks.
Mr Seindanis’ employment with Cabin Park ended on 30 April 2021. He had worked at the Cabin Park for 13 years. His employment ended amidst a dispute between the parties about the revocation of a period of pre-approved leave between 4 June 2021 and 17 June 2021. The dispute resulted in an awkward confrontation between Mr Seindanis and Mr Bentley on 25 April 2021. They met again on 5 May 2021. Mr Bentley handed Mr Seindanis a letter dated 25 April 2021, confirming receipt of his resignation as at 30 April 2021.
Mr Seindanis commenced these proceedings on 17 January 2023, seeking declarations that Bentley’s Cabin Park and Mr Bentley contravened the Hospitality Industry General Award 2020, pecuniary penalties and compensation.
Bentley’s Cabin Park and Mr Bentley dispute that the Award applied to Mr Seindanis’ employment. 14 contraventions of the Fair Work Act 2009 (Cth) are alleged. Two allegations are admitted, and one is not pressed. 10 of the allegations depend on the application of the Award. The remaining allegation, alleging a contravention of s 90 of the Act by failing to pay Mr Seindanis the amount that would have been payable to him for a period of untaken paid annual leave when the employment ended is in dispute, and does not depend on the application of the Award.
Against that background, the central issues in the proceedings are:
(a)Does the Award apply to Mr Seindanis’ employment (and more particularly was he employed as a front office grade 2 (wage level 3) employee?[1]);
(b)If the Award does apply:
(i)What were Mr Seindanis’ hours of work, and what breaks did he take?
(ii)Was Mr Seindanis not allowed to take meal breaks?
(iii)Did Bentley’s Cabin Park fail to give Mr Seindanis an additional rest break of 20 minutes?
(c)Did Mr Seindanis take annual leave for the purposes of the Act during his employment and did he have a period of untaken paid annual leave when the employment ended?
(d)Was Mr Bentley involved in the contravention of Bentley’s Cabin Park as being, in any way, by act or omission, directly or indirectly, knowingly concerned in, or a party to the contravention?[2]
[1] Or alternatively, a front office grade 1 (wage level 2) employee, or a guest services employee?
[2] s 550(2)(c) of the Act.
DOES THE AWARD APPLY TO MR SEINDANIS’ EMPLOYMENT?
The Act relevantly provides the following:
46 The significance of a modern award applying to a person
(1)A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.
(2)A modern award does not give a person an entitlement unless the award applies to the person.
…
47When a modern award applies to an employer, employee, organisation or outworker entity
When a modern award applies to an employee, employer, organisation or outworker entity
(1)A modern award applies to an employee, employer, organisation or outworker entity if:
(a)the modern award covers the employee, employer, organisation or outworker entity; and
(b)the modern award is in operation; and
(c)no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.
…
48When a modern award covers an employer, employee, organisation or outworker entity
(1)A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.
…
The Award is an industry award that:[3]
… covers, to the exclusion of any other modern award: (a) employers in the hospitality industry throughout Australia and employees (with a classification defined in Schedule A-Classification Structure and Definitions) of employers mentioned in clause 4.1(a).
[3] cl 4.1.
For this purpose, hospitality industry includes, amongst other things, hotels, motor inns and motels, boarding establishments, condominiums or similar establishments, guest houses or serviced apartments, caravan parks, holiday flats or units and resorts.[4] At trial, there was no contest that the Award applied to Bentley’s Cabin Park. I am satisfied that Bentley’s Cabin Park is an employer in the hospitality industry for the purposes of the Award.
[4] cl 4.2.
In determining whether the Award applied to Mr Seindanis, the issue is whether he is an employee with a classification defined in Schedule A.
Schedule A.2 establishes general classification definitions with several streams, including the food and beverage stream, the kitchen stream, the guest services stream, the administrative stream, the security stream, the leisure activities stream, the stores stream, maintenance and trades-other than the cooking trade and managerial staff (hotels). Schedule A.2 provides different grades within each stream.
Mr Seindanis asserts that during his employment with Bentley’s Cabin Park he was employed in the guest services stream and performed duties within the classification of a front office grade 2 (wage level 3) employee. In the alternative, Mr Seindanis asserts that his employment is classified as front office grade 1 (wage level 2), or as a guest service employee.
Accordingly, in order to resolve this central question, it is necessary to analyse the terms of the Award, the work that Mr Seindanis performed and the circumstances in which he was employed to perform the work. To this end, in Roebuck v Shopping Centres Australasia Property Group Re Limited,[5] Feutrill J said:
A modern award is a legislative instrument and, as such, is interpreted in accordance with the provisions of the Interpretation Act. Accordingly, the general principles of statutory interpretation referred to earlier in these reasons apply equally to the Award and the ordinary meaning of the text must be considered in context and having regard to the legislative purpose. In the case of a modern award, the industrial context and purpose as well as the commercial and legislative context forms part of the relevant interpretive context and purpose. Having regard to the relevant context and purpose, a narrow or pedantic approach to construction of a modern award is not appropriate, but ‘[a] court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award.
…
White J in Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union and Flick J in NSW Trains v Australian Rail, Tram and Bus Industry Union implicitly accepted that, for the purposes of classification, it is necessary to ascertain whether the ‘principal purpose’ for which the employee was employed falls within the classification. In this respect, the Full Bench of the Industrial Relations Commission made the following observations concerning classification in Carpenter v Corona Manufacturing Pty Ltd:
8.At the time of the termination of his employment, the appellant was employed by the respondent as National Sales Manager. The agreement under which he was employed stated that the “function and responsibilities of the employee will involve sales and management duties throughout Australia”. The appellant’s job description identified his duties in a way that, in our view, can only be described as principally managerial in nature. The Commissioner found that the tasks for which the appellant was employed were those set out in the job description. We agree. Whilst the appellant may, on occasion, have performed tasks that might fall under the headings of “soliciting orders”, “obtaining sales leads” or “promoting sales”, such tasks formed a minor part of the work he was required to perform.
9.In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not “employed in the process, trade, business or occupation of . . . soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, materials” and was not, therefore, covered by the award.
(Footnotes omitted.)
[5] [2024] FCA 503 at [63] and [65] (citations omitted).
What was the principal purpose of Mr Seindanis’ employment?
The Award relevantly provides:
A.2.3 Guest services stream
…
(f) Front office grade 1 (wage level 2) means an employee who is engaged as an assistant in front office duties including night auditing, performing duties as a telephonist, receptionist or cashier, providing information services or making reservations.
(g) Front office grade 2 (wage level 3) means an employee who has the appropriate level of training and is in the front office engaged in performing duties including as a telephonist, receptionist or cashier, providing information services or making reservations.
…
At trial, Mr Seindanis’ case was that in accordance with his primary pleading,[6] he was employed as a front office grade 2 (wage level 3) employee. Amongst other things, he points to uncontroversial matters such as that he undertook front of house duties and that he performed and had the appropriate level of training to perform duties including telephony, reception, acting as a cashier, providing information services, making reservations and other related and ancillary work.[7]
[6] See paragraph 7 of the further amended statement of claim filed 27 June 2025.
[7] see paragraph 4.5 of the further amended statement of claim and paragraph 4(iii) of the second further amended defence filed 8 July 25.
Whilst Bentley’s Cabin Park admits these matters, it does not admit that Mr Seindanis was principally engaged for these purposes, nor that a person engaged in front of house duties will be covered by the Award. Bentley’s Cabin Park asserts that Mr Seindanis performed the role of a manager, and more particularly a shift manager, such that the Award does not apply to him.
Bentley’s Cabin Park says that Mr Seindanis’ employment involved overseeing the day-to-day operations of the Cabin Park, manage rosters, supervise staff, check-in and checkout guests, order new stock, engage and manage contractors and, on occasion, the recruitment and termination of staff.
The managerial staff (hotels) stream in Schedule A.2.9 does not apply to cabin parks and in those circumstances, the Award makes no provision for onsite managerial staff at cabin parks. Further, s 143(7) of the Act provides:
…
Employees not traditionally covered by awards etc.
(7) A modern award must not be expressed to cover classes of employees:
(a)who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b)who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note:For example, in some industries, managerial employees have traditionally not been covered by awards.
From approximately 2001 or 2002, the Cabin Park employed two shift managers to work on rotating shifts so as to ensure coverage without overburdening any one person. Bentley’s Cabin Park has continued to employ two shift managers since that time.
When he first started employment, Mr Seindanis lived on-site for the first three months, staying and sleeping in the living quarters that were attached to the front office. After the first three months, Mr Seindanis was permitted to continue to live on-site in the sense that an offer was made for him to do so, but he was not required to live on-site. In cross-examination he described this as a bit grey, but he went to live at home which was close by to the Cabin Park.
Mr Seindanis’ case is that during his employment he was required to be present in the front office of the Cabin Park, answer the phones, provide information and make reservations. He acknowledges that he performed other functions, but he says that the principal purpose of his role was these front office duties, which were essential to Bentley Cabin Park’s enterprise.
In his trial affidavit and his reply affidavit, Mr Seindanis gave evidence that during his rostered time on he oversaw the daily operations of the Cabin Park. He explained that he was the central point of contact in co-ordinating bookings and guest services. His regular duties included check ins and checkouts, providing customer service and handling customer requests and complaints. He also co-ordinated housekeeping and maintenance, which included co-ordinating, rostering and supervising housekeeping and cleaning staff, including keeping time books and calculating wages and submitting payment requests to Mr and Mrs Bentley.
Mr Seindanis also laundered, folded and pressed linen. He performed minor maintenance tasks such as changing light bulbs and shower roses, cleaning carpet and co-ordinating the engagement of contractors to perform more substantial maintenance work but not major repairs. He inspected the work once it was complete. He made minor purchases of supplies and did some occasional gardening.
In cross-examination, Mr Seindanis agreed that when he was rostered on he was the most senior person on-site at the Cabin Park and that the day-to-day management of the Cabin Park was his responsibility.
In his reply affidavit and in cross-examination, Mr Seindanis said that he would perform spot-checks of the cleaners work and if it was not at a satisfactory standard he would direct the cleaners to re-do the clean. Mr Seindanis gave evidence in his reply affidavit that his supervisory role was limited to housekeeping, gardening and maintenance staff, so as to ensure the efficient co-ordination and running of the basic daily operations of the Cabin Park for those areas and to ensure quality standards.
In cross-examination, Mr Seindanis was asked about his role in the hiring of staff, and the termination of staff. As a general proposition, he said that if he knew a person, then he might recommend employees to Mr and Mrs Bentley but that he did not employ anybody unilaterally.
He would sign contracts of employment for staff on behalf of the Cabin Park if he was rostered on, including the contract of Christine Cox and an Individual Flexibility Arrangement on 21 December 2015. Mr Seindanis was also a referee for the employment of Olive Champion in late-September 2015. On 5 February 2018, he provided a statement of service to Centrelink on behalf of Danielle Pens, who was employed as a member of housekeeping staff on a casual basis between 9 August 2017 and 22 October 2017, before resigning on 21 December 2017.
It was submitted on behalf of Mr Seindanis that instances of his involvement in the recruitment and retention of staff and of wider staff matters, needs to be assessed over the complete context of a 13 year employment relationship – that these were effectively exceptions.
In cross-examination, Mr Seindanis said that people would submit resumes to the Cabin Park from time to time on an unsolicited basis and that there was a checklist they needed to be assessed against. The process was designed to determine if the applicant was a genuine employment prospect. Mr Seindanis also agreed that he would interview applicants from time to time, but he did not agree that he had the authority to hire staff, and terminate staff in his discretion.
To these ends, Mr Seindanis led evidence in chief of his statement of service dated 28 July 2021. When asked about the statement in cross-examination, Mr Seindanis said he could not recall ever seeing it, notwithstanding that he read his affidavit carefully before he affirmed it, and notwithstanding adopting the affidavit as true and correct in his oral evidence in chief.
That issue aside, it is more to the point in my opinion that Mr Seindanis accepted the key responsibilities set out in the statement were accurate, with the exception of some equivocation about the descriptor that his responsibilities included “hiring and firing of employees, including general employment relations management”. In any event, Mr Seindanis agreed in cross-examination that if Mr and Mrs Bentley were away and there were insufficient cleaning staff, he would engage additional cleaning staff independently.
Mr Seindanis also agreed that he had a role to play in effectively mediating grievances between staff members, at least in the first instance, with a view to resolving them. In this respect Mr Seindanis also submitted that, like his role staff recruitment and retention, over a 13 year employment relationship his role in mediating staff grievances was limited and exceptional.
The statement of service, as well as some other documents, variously describe Mr Seindanis as the general manager, shift manager or duty manager. That said, I accept of course that whether the Award applies or not is not determined by titles or labels, and nor is it determined merely by making a quantitative assessment of the time a person spends carrying out various duties.
Similarly, I accept that Mr Seindanis being the face of the business, that he treated it as his own and that from time to time he was mistaken by guests as the proprietor does not transform his role into a managerial one. It remains necessary to examine the nature of the work that Mr Seindanis performed and the circumstances in which he was employed to do the work.
In making this analysis, I have concluded that the principal purpose that Mr Seindanis was engaged for was managerial, including overseeing the operations and management of the Cabin Park across all departments. I find that the functions that were performed by Mr Seindanis traversed multiple streams and were of a managerial nature. I do not find that Mr Seindanis’ employment is classified as front office (grade 1 or grade 2), or as a guest services employee.
In reaching these conclusions, I have regard to Mr Seindanis generally being the most senior person on-site at the Cabin Park. He oversaw daily operations when Mr and Mrs Bentley were away, as he also did in the usual course of his employment when he was rostered on. He worked across bookings and guest services, housekeeping and maintenance. He was responsible for the day-to-day management of the administrative staff. Throughout his employment, he set rosters for cleaners depending on how many bookings there were at the Cabin Park at the time.
Mr Seindanis managed cleaning staff through performing spot-checks and issuing directions. He would co-ordinate maintenance, including the engagement of external contractors. Both guest and staff feedback, grievances and complaints were passed through Mr Seindanis as the central point of contact. In these respects he was responsible for triaging issues and would co-ordinate a resolution himself in simple cases, or report more major issues to Mr and Mrs Bentley.
Mr Seindanis made recommendations to Mr and Mrs Bentley about recruitment and retention of staff. He would co-ordinate, roster and supervise housekeeping and cleaning staff, including keeping time books and calculating their wages and submitting payment requests to Mr and Mrs Bentley. Mr Seindanis was not a signatory to the cheque account and nor did he have authority to make electronic funds transfer transactions. However, he would give pay checks to employees on payday. When Mr and Mrs Bentley were away, Mr Seindanis was supplied with signed, blank cheques for these purposes.
In my view, Mr Seindanis’ duties are quintessentially managerial. I also consider that this analysis is supported by the documents that have been produced in the proceedings, including Ms Cox’ employment contract and Individual Flexibility Arrangement. It is also consistent with Mr Seindanis speaking with Kerry from Centrelink about the employment of Ms Pens and sending a letter to Centrelink on behalf of the Cabin Park about Ms Pens’ employment.
In my opinion, this is consistent with Mr Seindanis’ evidence that his role included writing these kinds of letters and signing contracts for new employees when he was working. It is not the label ascribed to Mr Seindanis’ employment in those documents that is significant, it is the fact that he was performing such functions within the scope of his authority.
During his oral evidence, and indeed in his evidence in chief, Mr Seindanis qualified his statements of his duties to being performed only when he was rostered on. He also drew a distinction between his day-to-day management of the Cabin Park and the extent of his authority from Mr and Mrs Bentley.
Albeit in the context of live-in managers, in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No 2),[8] Judge O’Sullivan observed:
The concept of the management functions and responsibility of a live in manager are somewhat amorphous and intangible particularly in a small scale regional business where the normal expectation is that those exercising executive or management responsibilities will also share the daily and mundane tasks.
…
Whilst [the applicants] were subject to some direction and control by the second and third respondents the evidence is they were in fact the live in motel manager on a day to day basis and this was the major and substantial employment of them both.
[8] [2018] FCCA 1935 at [184].
In my opinion, Mr Seindanis was at a senior level of responsibility and not at the relatively low level and junior nature of the front office or guest services employees. I assess that he was employed to perform managerial functions, under the broad rubric of attending to everyday operations and management of the Cabin Park.
In these circumstances, I do not find that the Award applies to Mr Seindanis’ employment.
Mr Seindanis accepts that 10 of the alleged contraventions of the Act depend upon whether the Award is found to apply or not, and that if it does not, the allegations will fail.
In light of my findings, it is not necessary for me to determine questions relating to what breaks Mr Seindanis took, whether he was allowed to take meal breaks and whether Bentley’s Cabin Park failed to give Mr Seindanis an additional rest break of 20 minutes.
DID MR SEINDANIS TAKE ANNUAL LEAVE FOR THE PURPOSES OF THE ACT, AND DID HE HAVE A PERIOD OF UNTAKEN PAID ANNUAL LEAVE WHEN THE EMPLOYMENT ENDED?
Mr Seindanis worked in swings, there being two shift managers employed by Bentley’s Cabin Park since around 2001 or 2002. He would work in equal days on and off.
Mr Seindanis says that he never received annual leave. He also says that when his employment finished no amounts were paid to him on account of annual leave. He was not provided with a payslip when his employment ended.
Mr Seindanis has claimed an entitlement to receive four weeks annual leave per year of service. So much is admitted by Bentley’s Cabin Park.
Mr Seindanis also contends that he is entitled to be paid 53.44 weeks of annual leave spanning the duration of his employment. As I have said, he also claims that Bentley’s Cabin Park did not pay him any amounts in respect of annual leave when his employment ended. This latter aspect is also admitted by Bentley’s Cabin Park. It says that Mr Seindanis had already used up all of his annual leave entitlements during the course of his employment, such that when the employment ended there were no periods of untaken paid annual leave and therefore no amounts that would have been payable to him.
Sections 87 and 88 of the Act relevantly provide:
87 Entitlement to annual leave
Amount of leave
(1)For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to:
(a) 4 weeks of paid annual leave; or
…
88 Taking paid annual leave
(1)Paid annual leave may be taken for a period agreed between an employee and his or her employer.
(2)The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
The amount of annual leave Mr Seindanis is entitled to is not in issue. The central question is whether Mr Seindanis took paid annual leave over periods in each year when he was absent from work according to his roster, and received regular wage payments during his weeks off.
Mr Seindanis started salary sacrificing in the 2013/2014 financial year, first commencing shortly before the week ending 20 September 2013. Bentley Cabin Park’s payment records for Mr Seindanis show that he was receiving regular, consistent remuneration over the course of his employment and that he was paid his regular wage during the weeks where he was not working.
Mr Seindanis’ evidence in chief is that he is still unsure precisely what the basis of his employment was and that he was never told whether he was casual, part-time or full-time. He says that he knew that his roster was initially five days on, five days off. He disputes that it was ever 3.5 days on, 3.5 days off. He agrees that in about 2012, the roster changed to seven days on, seven days off.
Mr Bentley’s evidence is that the terms of Mr Seindanis’ employment were oral and that he commenced work for Bentley’s Cabin Park, agreed through a handshake. He said that the interview took place in the lounge area of the reception at the Cabin Park and he explained that the role was based on a rotating roster of 3.5 days on and 3.5 days off, meaning in effect that over a 12 month period Mr Seindanis would work 26 weeks on, and 26 weeks off.
In cross-examination, Mr Bentley agreed that he never discussed with Mr Seindanis which of the 26 weeks off over the year were to be classified as annual leave, however he said that he was aware that Mr Seindanis was entitled to 4 weeks annual leave and he said that it would be included within the period of 26 weeks off.
Mr Seindanis disputes this. He disputes that he ever worked on a 3.5 day roster and he disputes that he knew that four weeks annual leave was included within his 26 weeks off. Mrs Bentley said that in the workplace, the term “annual leave” was not used and Mr Seindanis and others would speak about going on a holiday, having a week off, or going away, with the implication that staff were taking annual leave.
In Smith v Quasar Constructions Pty Ltd,[9] Judge Driver observed:
s 88(1) provides that “paid annual leave may be taken for a period agreed between an employee and his or her employer.” Thus, the key defining concept under s 88(1) is agreement between the parties for the employee to take a period of paid annual leave. The Fair Work Act does not limit the mode of agreement: it may be oral, in writing or implied by conduct. In addition, s 90(2) provides for payment for annual leave when the employment ends “if . . . the employee has a period of untaken paid annual leave”.
[9] [2015] FCCA 557 at [61].
Bentley’s Cabin Park places emphasis in the agreement reached between the parties at the commencement of Mr Seindanis’ employment and points to the fact that over the course of his employment, Mr Seindanis took advantage of the shift swap roster arrangement to take annual leave.
Neville Lee worked for Bentley’s Cabin Park for approximately three months in early-2018 as a duty manager or shift supervisor. Mr Lee gave evidence in Mr Seindanis’ case. He was told by Mr and Mrs Bentley at the commencement of his employment that if he ever wanted to take leave he needed to swap shifts with Mr Seindanis. He said that Mr Seindanis also confirmed with him that this was how Bentley’s Cabin Park operated with respect to leave.
Mr Lee’s evidence went on to say that Mr Seindanis asked him a number of times to swap shifts so that he could attend various things, and there were a number of occasions that he swapped with Mr Seindanis so that he could take leave from work because he had other commitments or events that he had to attend.
In assessing the evidence, I prefer and accept Mr Bentley’s account that the entitlement to 4 weeks annual leave was discussed with Mr Seindanis at the commencement of his employment and that it was agreed that it would be included in the 26 weeks rostered off. In preferring this evidence and in forming these conclusions, I accept that Mr Seindanis was aware that he was entitled to 4 weeks annual leave.
As I have observed, he commenced employment with Bentley’s Cabin Park as an experienced employee and having leased and operated the Terrace Chicken Bar. Mr Seindanis never raised any complaint with Bentley’s Cabin Park about not receiving paid annual leave over 13 years of his employment, even though he progressed other workplace entitlements such as salary sacrificing in 2013, which happened to be the first time that Mrs Bentley processed salary sacrifice payments for any employee.
As I have observed for a different issue, Mr Seindanis was the witness to employee entitlement agreements with other employees, such as the Individual Flexibility Agreement between Ms Cox and Bentley’s Cabin Park on 21 December 2015. That agreement varied the Award clauses for the payment of allowances, penalty rates and overtime.
Mr Seindanis also received several pay rises over the course of his employment. In 2012, his pay rise was the subject of some negotiation after he was offered a job as a plant operator in Roxby Downs on a seven day on, seven day off roster. That job offered better pay and regularity of days on and off. This negotiation resulted in the shift to the roster of seven days on and seven days off at Bentley’s Cabin Park as well as a pay rise that was competitive to the Roxby Downs job offer, so that Mr Seindanis would stay.
Additionally, Mr Seindanis gave evidence in chief that on 19 July 2019, he requested long service leave because he planned to travel to Greece between 13 July 2020 on 8 September 2020. His evidence is that he asked for long service leave because he knew that he did not get paid annual leave.
I do not accept this evidence. At that stage, Mr Seindanis had been working for Bentley’s Cabin Park for 11 years. I don’t accept that Mr Seindanis was taking personal steps such as salary sacrificing, negotiating the terms and conditions of his pay and employment and being involved in an Individual Flexibility Agreement for another employee over the course of his employment and not ever receive paid annual leave nor complain about not ever receiving it. I also find it to be inconsistent with his awareness, requests and payment of long service leave, that Mr Seindanis would not be taking and receiving payment of annual leave.
I also find Mr Seindanis’ evidence as to annual leave to be inconsistent. In particular, Mr Seindanis’ evidence about what took place in 2021 when the working relationship between the parties appears to have started to deteriorate is that “requested leave” from Mrs Bentley between 4 June 2021 and 17 June 2021 so that he could take a holiday with his wife to celebrate their 40th wedding anniversary. He said that on 25 April 2021, Mr Bentley revoked his leave approval. Where Mr Seindanis’ own evidence speaks about applying for leave, I do not accept his evidence that he thought or knew that he did not receive annual leave in his employment.
I also prefer Mr Bentley’s evidence as to the historical details of the initial meeting. Mr Seindanis disputes the original discussion about a 3.5 day on, 3.5 day off roster and of working in such a pattern. However, on 10 August 2008, Mr Bentley wrote to the Manager of BankSA in Port Piri confirming Mr Seindanis’ employment on a 3.5 day week, and a salary of $850 per week gross. I find this letter to independently corroborate Mr Bentley’s evidence.
Whilst I accept the fallibility of memory over events that took place such a long time ago, I also prefer Mr Bentley’s evidence because Mr Seindanis remains unsure whether his employment was full-time, part-time or casual. Reflecting back on the initial days, Mr Seindanis also said that he cannot remember what the advertised position even was.
For the same reasons that I have already discussed, and accepting the informality and lack of documentation in the terms of Mr Seindanis’ employment, I accept Mr Bentley’s evidence as a more reliable historical account of what took place.
In all of these circumstances, I find that Mr Seindanis and Bentley’s Cabin Park entered into an agreement at the commencement of his employment for annual leave to be taken and paid on a regular basis, which permitted Mr Seindanis to adjust his days off, and he did adjust his days off, including in the ways described by Mr Lee.
In Surveillance Australia Pty Ltd v Australian Federation of Air Pilots,[10] the Full Bench of the Fair Work Commission held:
Several observations may be made about s 88 of the Act. Section 88(1) provides an entitlement for employees to take paid annual leave for the purpose, inter alia, of “access to rest and recreation” relevantly, “at a time of the employee’s choosing, so long as the request for leave is not unreasonable.” Put another way, s 88 of the Act provides for agreement between an employer and an employee about when annual leave is to be taken by the employee and the duration of that leave and an employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave. So much seems clear when reading “agreed” in s 88(1) in the context of the qualification in s 88(2) and the significance of annual leave.
Section 88 of the Act permits an employee to make a single request for more than one period of paid annual leave. But the words “a period” and “a request” in s 88(1) and (2) show that employees are entitled also to make several requests for annual leave and for periods of different durations.
The NES provisions permitting employees to take paid annual leave recognise that employees are not a homogeneous group. Employees will need to use annual leave differently over the course of their employment, and the entitlement to take annual leave under the NES accommodates that difference through its machinery of request and approval and by proscribing the unreasonable refusal of leave requests. It also accommodates the business, operational and organisational needs of the employer by permitting reasonable refusals.
The rostering terms of the employment contracts between the appellant and some FIFO employees, as is evident from the provisions earlier reproduced, require FIFO employees to comply with a rigid pattern of annual leave accrual and use. Relevantly, under the rostering terms, a FIFO employee cannot take any more than four days annual leave at any one time and, conversely, cannot accrue longer periods of leave because leave progressively accrued is taken at short intervals. The rostering terms have the effect of limiting the days on which annual leave may be taken and there appears no scope under the rostering terms to reach agreement to take annual leave during any of the 16 or 21 days on-duty period.
However, central to the operation of s 88 of the Act is the notion that paid annual leave is to be taken for a period agreed between an employee and his or her employer. The agreement to a period, which may include one agreement for several or multiple or ongoing periods and may be facilitated by an employee request, which must not be unreasonably refused, or requests by the employer. Agreements to periods of paid annual leave to be taken may be initiated by an employer proposing one or more leave periods and the employee agreeing to same.
We agree with the appellant that the rostering terms so far as they concern taking paid annual leave are consistent with s 88(1) of the Act. The nature of the rostering terms is that they involve an agreement between the FIFO employee and the appellant about how and when annual leave would be taken (either during the employee’s off-swing period or during an agreed extended holiday). We do not consider that making an agreement through an employment contract about when leave is to be taken is inconsistent with or contradictory to s 88(1) of the Act.
Although s 88(1) of the Act provides that paid annual leave may be taken for “a period agreed”, as we note above, the section does not require a singular agreement for each singular period of leave. We do not consider that the language, purpose and context of s 88(1) supports such a narrow construction. Plainly, unless the contrary intention appears in the Act, words in the singular number will include the plural number. No contrary intention appears in the Act.
[10] [2024] FWCFB 234 at [20] – [26] (footnotes omitted).
Whilst I accept that Surveillance Australia Pty Ltd involved agreements between the employer and employees under which the period of annual leave in the roster was clearly defined, I find that the agreement between Mr Seindanis and Bentley’s Cabin Park permitting him to take annual leave on a regular basis is an agreement for the purposes of s 88(1).
To that extent, many of the observations in Surveillance Australia Pty Ltd are of general application. More broadly, as I have set out, the key issue for the purpose of s 88(1) is agreement between the parties, not the mode of the agreement.
In Mr Seindanis’ case, the agreement provided him with greater flexibility about his leave arrangements, which he generally utilised in a manner that suited him. From the commencement of his employment to 2016, as Mr Seindanis became more settled and confident in his role, he treated his work schedule with increasing flexibility, and arranged shift swaps with the other shift manager without seeking approval, enabling him to take personal trips.
In 2016, Mr Bentley determined that shift swaps were not always communicated to him and Mrs Bentley, which created operational confusion and impacted on staff morale. Mr Bentley gave evidence in cross-examination that communication is king, with reference to the implementation of a formal requirement in 2016 where shift changes were required to be approved by him and Mrs Bentley, preferably in writing by way of email.
Thus, after 2016, the process by which leave could be taken changed, but it did not alter the substance of the agreement between Mr Seindanis and Bentley’s Cabin Park at the commencement of the employment. It also did not alter Mr Seindanis’ ability to flexibly adjust his hours and time at work to suit his personal needs.
I do not accept Ms Seindanis’ submissions about the operation of s 88, or of the categorisation of his ability to adjust his working hours and take time off work. I find that, in effect, Mr Seindanis was receiving paid annual leave, being his base salary, for periods where he was absent from work pursuant to rostering terms that were agreed at the commencement of the employment with Bentley’s Cabin Park, and which were implemented and utilised throughout.
WAS MR BENTLEY INVOLVED IN THE CONTRAVENTION OF BENTLEY’S CABIN PARK, AS BEING, IN ANY WAY, BY ACT OR OMISSION, DIRECTLY OR INDIRECTLY, KNOWINGLY CONCERNED IN, OR A PARTY TO THE CONTRAVENTION?
Bentley’s Cabin Park has admitted two contraventions. It has admitted a contravention of s 536 of the Act by failing to comply with the obligation to provide payslips. Bentley’s Cabin Park has also admitted that it contravened s 535(1) by failing to keep records of the kind prescribed by the Fair Work Regulations 2009 (Cth). It has admitted that it did not keep records of the leave that Mr Seindanis took and the balance, if any, of his entitlement to that leave from time to time.[11] It has denied that it was required to keep records as to loading and penalty rates,[12] and overtime,[13] as it says that Mr Seindanis was not entitled to loadings, penalty rates, or overtime.
[11] Reg 3.36 of the Regulations.
[12] Reg 3.33(3) of the Regulations.
[13] Reg 3.34 of the Regulations.
Sections 535 and 536 are civil remedy provisions. If the court is satisfied that a person has contravened a civil remedy provision, the court may make any order it considers appropriate.[14] The court may also order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.[15]
[14] s 545(1).
[15] s 546.
Mr Seindanis alleges that Mr Bentley was involved in each contravention of Bentley’s Cabin Park, within the meaning of s 550(2)(c) of the Act. He seeks declarations to this effect. He also seeks the imposition of a pecuniary penalty against him and an order that he and Bentley’s Cabin Park are joint and severally liable for compensation, pre-judgment interest and costs.
Section 550 of the Act relevantly provides:
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note:If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
…
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
…
The relevant issue is whether Mr Bentley is involved in the contravention, as being in any way, by act or omission, directly or indirectly knowingly concerned in, or a party to the contravention.
In Fair Work Ombudsman v Agile Group (Global) Pty Ltd,[16] Judge Brown summarised the principles that apply to accessorial liability in the following way:
[16] [2025] FedCFamC2G 46 at [90] – [92] (citations omitted).
In Buckingham v KSN Engineering Lucev FM (as his Honour then was) summarised the legal test for sheeting liability to a potential accessory in the following terms; before such a person could be considered an accessory under the Act, could it be established that:
•did he or she have knowledge of the essential facts constituting the contravention;
•was he or she knowingly concerned in the contraventions;
•was he or she an intentional participant in the contravention based on actual or constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient in cases of wilful blindness; and
•however, such an individual did not need to know that the matters in question constituted a contravention.
In Fair Work Ombudsman v Devine Marine Group Pty Ltd White J explained the concept of a party being knowingly concerned in a contravention under the FWA in the following terms:
The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention…
In Qantas Airways Ltd v Transport Workers’ Union of Australia Moore J summarised a number of authorities dealing with this concept of knowingly concerned. It involves conduct with implicates or involves the person concerned in the relevant contravention such that he or she has a practical connection to the contravention. Such a connection can be inferred from the circumstances surrounding the essential matters of the contravention.
In Wilkinson v Wilson Security Pty Ltd (No 3), Colvin J observed the divergence of authority as to whether an accessory must know the terms of the award.[17] Mr Seindanis submits that it is not necessary to demonstrate that Mr Bentley had knowledge that the state of affairs was unlawful. It is asserted by Mr Bentley that the observations of White J in Devine Marine Group Pty Ltd are correct. In that matter, White J held that:[18]
… knowledge that there is an award which is applicable which prescribes minimum rates or entitlements is a factual element necessary for the establishment of the accessory’s intention.
[17] [2024] FCA 705 at [299].
[18] [2014] FCA 1365 at [188].
His Honour went on to say:
… I do not consider it necessary … to establish that [the first respondent] knew the name of the particular award applicable to the work being performed … it is sufficient … to establish that [the first respondent] knew that an award was applicable.[19]
[19] At [194].
Additionally, the notes to ss 535 and 536 provide that if an employer fails to comply, the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions. Section 557C of the Act:[20]
… shifts the burden of proof from the applicant (here the Ombudsman) to the employer where the employer fails to comply with record-keeping or pay slip requirements in the FW Act or Regulations. It reflects a legislative policy that an employer should not be able to take advantage of its wrongdoing to defeat a claim that it has underpaid its employees.
[20] Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liq) (No 3) [2024] FCA 785 at [63].
In Sabapathy v Viveganantham,[21] Judge Mansini observed:
Such cases may attract a reverse onus of proof. In Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201 (Katzmann J) at [91]:
Section 557C shifts the burden of proof to the employer in a proceeding relating to a contravention by an employer of certain civil remedy provisions of the Act in circumstances in which, relevantly, the employer was required to make and keep records or to give a pay slip and, absent a reasonable excuse, the employer failed to comply with the requirement. The provision reflects a legislative policy that an employer should not be able to take advantage of its failure to make or keep certain records to defeat a claim that it has underpaid its employees, see for example: Gallagher v AAG LabourServices Pty Ltd [2020] FCA 1753 at [18] (Jackson J).
Section 557C is concerned with the overall burden of proof – when engaged, it is both the legal and evidential burden that shift to the defaulting employer. If the evidence adduced by the employer is insufficient to disprove the allegation on the balance of probabilities, then the effect of s.557C is that the claim must be upheld: Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 (Colvin J) at [14].
[21] [2024] FedCFamC2G 666 at [69] – [70].
In support of the claim under s 550(2)(c), Mr Seindanis’ submissions place emphasis on Mr Bentley’s admissions in the second further amended defence. In this respect, I accept as admitted facts that Mr Bentley was a director of Cabin Park Port Pirie, an owner, a manager and a person with operation and financial superintendence of Cabin Park Port Pirie.
I also accept that he had the ability to control the timing and quantum of payments to Mr Seindanis by Cabin Park Port Pirie, and that he knew the days, hours and times that Mr Seindanis worked. He also knew what the duties Mr Seindanis performed, and was employed to do.
However, after they established Bentley’s Cabin Park, the Bentleys not only grew that business, but they became involved in several other business ventures, including a signwriting business for 20 years, and 4,500 acres of farmland, which Mr Bentley largely worked on himself with his family for over 15 years. They have also operated construction companies and been responsible for building commercial properties in Port Pirie and other places, including Port Lincoln. They developed and own commercial property including a laundromat, and other hospitality outlets.
Although Mr Bentley was an owner of the Cabin Park, his role primarily involved overseeing the business at a strategic level, rather than managing day-to-day operations. As I have observed in assessing separate questions, the day-to-day operations were managed by Mrs Bentley when she was there.
To this end, Bentley’s Cabin Park kept records of gross pay, net pay, pay as you go instalments and superannuation contributions for Mr Seindanis. During his employment, one of Mrs Bentley’s main responsibilities was to handle all payroll functions. Before Bentley’s Cabin Park implemented Single Touch Payroll, Mrs Bentley managed the payroll for all staff manually using Excel spreadsheets. She identified an error in calculating Mr Seindanis’ superannuation entitlements over his employment, which was a genuine administrative mistake that she made. Mrs Bentley gave evidence of Mr Seindanis’ pay records over the course of his employment.
Although there are admissions as to Mr Bentley’s involvement on the pleadings and although the further amended statement of claim does not expressly and clearly put the allegation that it extended to payslips,[22] it is a matter in dispute that Mr Bentley had knowledge of the documents that were and were not provided to Mr Seindanis over the course of and in connection with his employment.
[22] Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [50].
It is also in dispute that Mr Bentley authorised payments and the timing and quantum of the payments that were made to Mr Seindanis over the course of his employment. It is in contention whether Mr Bentley determined the days, hours and times that Mr Seindanis. It is also disputed that Mr Bentley was responsible for making and keeping records in relation to Mr Seindanis’ employment by Cabin Park Port Pirie.
In the proceedings, Mr Seindanis has alleged that Mr Bentley’s conduct in the circumstances I have set out, some of which is admitted, is taken to be that of Bentley’s Cabin Park. He has also pleaded that Mr Bentley’s state of mind is taken to be Bentley Cabin Park’s state of mind and that Mr Bentley was involved in each of the contraventions within the meaning of s 550(2)(c).
However, in each instance that Mr Seindanis relies on s 550(2)(c) no specific, direct or indirect, act or omission is pleaded that identifies the basis upon which it is said that Mr Bentley was involved in the contraventions. To that extent, as I have observed, the allegation is put generally, as the admitted matters on the pleadings are general.
In terms of the admitted contravention as to payslips, I accept Mr Bentley’s evidence that it was not his responsibility to provide payslips. I accept that Mr Bentley did not have knowledge of these matters, nor was there any act or omission that implicated him in them.
In terms of the failure to keep leave records, it is admitted on the pleadings that Mr Bentley had knowledge of the days, hours and times that Mr Seindanis worked. As I have set out, in connection with evidence given that communication is king, in 2016 Mr Bentley established a requirement that shift changes were to be approved by him and Mrs Bentley, preferably in writing by way of email. This was expressed as a matter of common courtesy. However, it is disputed that Mr Bentley determined the days, hours and times that Mr Seindanis worked.
I accept Mr Bentley’s evidence that it was not his responsibility to keep records of annual leave taken, and I accept that Mr Bentley did not have knowledge of these matters.
I accept Mr Bentley’s high level oversight of the Cabin Park and the limitations on his role, which impact upon the depth of his actual knowledge of day-to-day matters. In each case, I am not satisfied that Mr Bentley had actual knowledge of the essential elements of the contravention, nor that there was any act or omission by Mr Bentley which implicated him in being involved in Bentley’s Cabin Park’s contraventions.
CONCLUSIONS
Other than as has been admitted, I have determined to dismiss the application against Bentley’s Cabin Park and Mr Bentley.
I will list the matter for directions to hear from the parties further about directions sought in respect of the penalty hearing for Bentley’s Cabin Park’s admitted contraventions of s 535(1) and reg 3.36 and s 536.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 26 September 2025
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