Sim v LUO Enterprise Pty Ltd (No 2)
[2009] FMCA 1060
•5 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIM v L.U.O. ENTERPRISE PTY LTD (No.2) | [2009] FMCA 1060 |
| INDUSTRIAL LAW – Claim for underpayment under WR Act – proof – dispute over classification under industrial instrument – principle of major and substantial employment – claim for breach of WR Act – claim for breach of contract. |
| Workplace Relations Act 1996 (Cth) ss.720, 722, 729, 493A, 500, Sch.1A Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Fair Work Act2009 (Cth) Federal Magistrates Act 1999 (Cth) s.18 |
| Sim v L.U.O Enterprise Pty Ltd (No.1) [2009] FMCA 286 O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455 Rana v University of South Australia (2004) 136 FCR 344 Ware and O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 Merchant Services Guild v J Fenwick & Co Pty Ltd (1973) 150 CAR 99 Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union & Anor (1998) 29 IR 263 Logan and Otis Elevator Company Pty Ltd (Unreported) IRCA, Moore J, 20 June 1997 Duncans Holdings Ltd v Cross (1997) 76 IR 261 Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 |
| Applicant: | LAM SAN SIM |
| Respondent: | L.U.O. ENTERPRISE PTY LTD ABN 100 747 626 |
| File Number: | MLG 868 of 2008 |
| Judgment of: | O'Sullivan FM |
| Hearing dates: | 7, 8 & 9 September 2009 |
| Date of Last Submission: | 19 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 5 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Love |
| Solicitors for the Applicant: | Australian Legal Advisory Centre |
| Counsel for the Respondent: | Mr Shaw |
| Solicitors for the Respondent: | Scammell Black Mileo |
ORDERS
Subject to the matters in order (2) herein the amended application for orders pursuant to ss.720 and 722 of the WR Act be dismissed.
The matter be listed for mention on a date to be fixed to hear from the parties before making orders to deal with the claim of breach of contract and any consequential orders arising from these reasons.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 868 of 2008
| LAM SAN SIM |
Applicant
And
| L.U.O. ENTERPRISE PTY LTD ABN 100 747 626 |
Respondent
REASONS FOR JUDGMENT
These proceedings concern an application alleging conduct in breach of a number of the provisions of the Workplace Relations Act 1996 (Cth) (“the WR Act”).
In 2002 Lam San Sim (“the applicant”) arrived in Australia from Singapore. The applicant began working for L.U.O Enterprise Pty Ltd trading as ‘The Malaya Inn’ (“the respondent”) in September 2002.
The applicant worked in the kitchen at the Malaya Inn until early 2007.
Later that year the applicant commenced proceedings against the respondent for unlawful termination under the WR Act and made a claim for workers compensation. Those proceedings were subsequently finalised.
The applicant commenced these proceedings claiming underpayments of wages and other breaches of the WR Act on 17 July 2008.
There were directions made on 22 August 2008. An amended application was filed on 3 September 2008 and a response on 17 September 2008. The matter was listed for trial on 30 March 2009.
However the applicant did not comply with the orders for trial and on that date the applicant applied for and was granted an adjournment.
The respondent had its costs thrown away as a result and the trial was adjourned to 7 September 2009.[1]
[1] See Sim v L.U.O Enterprise Pty Ltd (No.1) [2009] FMCA 286
At the adjourned trial on 7 September 2009, Mr Love of Counsel appeared for the applicant and Mr Shaw of Counsel appeared for the respondent.
Throughout the proceedings the Court was left with the impression that the parties, who were known to each other by marriage and who had entered into visa arrangements to help family members, believed they had each been let down by the other. Moreover the applicant’s failure to get a permanent visa and the circumstances surrounding this appeared to be the main focus of the material filed on his behalf.
The application and response
By way of amended application filed on 3 September 2008 the applicant alleged:
“1.The Respondent was and is at all material times a company duly incorporated under the Laws of Victoria.
2.The Respondent has at all material times operated a restaurant (“the restaurant”) trading under the business name of “Malaya Inn Restaurant” (ABN 16 100 747 626).
3.The applicant is a citizen of Singapore and came to Australia on a visitors’ visa in September 2002.
4.The Applicant while in Australia changed his visa status to the standard business-sponsored visa under Subclass 457 which enable him to work as Head Chef in the restaurant of the Respondent.
5.The Applicant was not made aware of the terms of his employment at the restaurant until he commenced work.
6.After he began work as Head Chef, the Applicant discovered that the Respondent was only prepared to pay him at the rate of $611 per week.
PARTICULARS
The Applicant was engaged in the role as Head Chef, which meant he had responsibility of the management of the kitchen as well as preparing the main courses for the restaurant. He did not have advice or knowledge prior to beginning the work as to the rate of pay and/or the conditions he was entitled to.
7.After commencing to work, the Applicant became aware that he was expected to work long hours each day of the week except Mondays. The Respondent imposed a demanding schedule of work on the Applicant as follows: for 6 days of the week he was to work from 9.00 a.m. to 3.00 p.m. and from 4.30 pm until 11.00pm, in other words 12.5 hours per day; his hours on Monday were from 11.00 a.m. until 3.00 p.m., or 4 hours.
8.The Applicant was under pressure to accept the said schedule of work owing to his dependence on the Respondent for his visa. Accordingly, he continued to work in the restaurant in line with the said schedule without interruption until 21 March 2007 when his employment was terminated by the Respondent.
9.Despite the fact that the said schedule required the Applicant to regularly work much longer than 38 hours per week and to routinely work on weekends, the Applicant received no pay based on overtime or penalty rates of pay.
10.Despite the fact that the Applicant worked on all public holidays the restaurant was open, The Applicant received no penalty rates of pay for his work on these days.
11.The applicant took no annual leave or other holidays during the entire time of his employment with the Respondent, and consequently received no leave-loading for the holiday period to which he was entitled.
12.During the entire period of his employment with the Respondent neither the Applicant nor his nominated fun received any contributions from the Respondent in compliance with the requirements of the Superannuation Guarantee (Administration) Act 1992.
13.The Applicant says his terms of employment were at all material times governed by the conditions set out in the Liquor and Accommodation Industry—Restaurants (Victoria) Award 1998 [AP78721—Fed] (“the award”).
14.The Applicant says that by virtue of the facts disclosed in paragraphs 7-13 herein the Applicant has been underpaid by a considerable amount, and that the Respondent is therefore in breach of the award.
PARTICULARS
i. The Respondent has not paid the Applicant for hours worked beyond 38 hours per week.
ii. The Respondent has not paid the Applicant at the award rate for hours worked on weekend.
iii. The Respondent has not paid the Applicant at the award rate for hours worked on holidays.
iv. The Respondent has not paid the Applicant any leave-loading for holidays to which he was entitled.
v. The Respondent has not made any contributions to a superannuation fund on behalf of the Applicant.
15.Accordingly, the Applicant seeks compensation pursuant to the provisions of Sections 720 and 722 of the Workplace Relations Act 1996.
16.To establish the amount of compensation owed the Applicant, the Applicant seeks an order that all necessary accounts and enquires be made to calculate the precise amount underpaid.
17.The Applicant seeks a declaration that the Respondent is in breach of the Act in accordance with the facts disclosed herein.
18.The Applicant seeks an order that the Respondent pay the Applicant any amount the Court deems is owed to him.”
Save for admitting the formalities of its incorporation, that it operated a restaurant trading as the Malaya Inn, and that the applicant came to Australia on a visitor’s visa the respondent denied the claims made and opposed the orders sought by the applicant.
It was the respondent’s position that:
“10.The Respondent was, and never has been, a respondent to the Liquor and Accommodation Industry – Restaurants (Victoria) Award 1998.
11.At all times from the engagement of the Applicant until 31st December 2004, the Respondent was required by the operation of section 500 of the Workplace Relations Act 1996 to pay its employees, including the Applicant, in accordance with the Accommodation, Cafes and Restaurants Industry Sector – Victoria Minimum Rates Order 1997.
12.From 1st January 2005 the Respondent was required by the operation of section 493A of the Workplace Relations Act 1996 to pay its employees, including the Applicant, in accordance with the Liquor and Accommodation Industry – Restaurants (Victoria) Award 1998, a common rule award applicable to all relevant employees in the State of Victoria.
13.The Applicant has at all times been paid and had the benefit of the conditions of employment required by law…
14.The Respondent at all times complied with the provisions of the Superannuation Guarantee (Administration) Act 1992 and made contributions on behalf of the Applicant to Spectrum Super Funds Management Limited.”[2]
[2] Respondent’s contentions of fact and law filed 5 December 2008
The hearing
At the hearing the applicant relied on:
·the amended application filed 3 September 2008;
·his affidavits sworn 17 July 2008 and 6 April 2009;
·the affidavit of Sing Chee filed 26 March 2009; and
·his contentions of fact and law filed 14 October 2008.
At the hearing the respondent relied on:
·the response filed 17 September 2008;
·its amended contentions of fact and law filed 5 December 2008;
·the affidavit of Paul Luo filed 8 December 2008; and
·the affidavit of Pheak Yeoh filed 8 December 2008.
During the course of the first day of the hearing the respondent, through Counsel, made an oral application for security for costs which was stood over to and dismissed for the reasons given at the beginning of the second day. Both parties also tendered a number of exhibits which they relied on.[3] At the conclusion of the hearing of oral evidence on 9 September 2009 the following orders were made:
[3] Exhibits LSS1, LSS2, LSS3, LSS5, LSS6, LSS7, LSS8, LSS9, LSS10, LSS11, LSS12, LSS13, LSS14, LSS15, LSS16 and R3, R4, R5, R6, R7.
“1.The parties shall separately file and serve calculations of wage rates that should have been paid for the hours worked in accordance with the industrial instruments as they applied from time to time and a statement of the wages actually paid by 4.00 pm on 25 September 2009.
2.The Applicant file and serve written submissions in support of their case, addressing the wage rate calculations as previously filed and addressing the appropriate response of the Court to any breaches unrelated to the matters in contention in the case it may find occurred by 4.00 pm on
9 October 2009.
3.The Respondent file and serve written submissions in support of their case, addressing the wage rate calculations as previously filed and addressing the appropriate response of the Court to any breaches unrelated to the matters in contention in the case it may find occurred by 4.00 pm on
16 October 2009.
4. The parties have liberty to apply.”
Both parties filed submissions in accordance with those orders.
Background
In what follows a statement of fact constitutes a finding of fact on the balance of probabilities unless the context suggests otherwise.
The applicant is 57 and arrived in Australia on 5 April 2002 on a visitor’s visa. He left on 12 April 2002 and returned again on 13 June 2002.
In July 2002 the respondent made application to what is now known as the Department of Immigration and Citizenship (“DIAC”) to become a standard business sponsor.
In August 2002 the respondent, through a migration agent, wrote to DIAC making application for a number of section 457 visas. Enclosed with that application was a document signed on behalf of the respondent nominating the applicant for a temporary visa and indicating the position to be filed was ‘head chef’ with a salary of $40,000.00.
In September 2002 the respondent’s migration agent wrote to DIAC indicating 2 people (one as head chef and one as chef) were to be sponsored. At or around this time the applicant sought a temporary business visa.
Later that month the applicant was advised via the migration agent the section 457 visa application had been approved and would remain in force until 30 September 2006. At the same time the respondent was advised, as sponsor, the visa had been approved and reminded inter alia of its obligation to “comply with Australian Industrial Relations Law”.
The applicant and his brother worked in the kitchen at the respondent’s business where the applicant inter alia prepared a speciality dish known as ‘Hainan Chicken’ but was not responsible for the management of the kitchen or supervision of staff or setting the menu.
At all relevant times during the applicant’s employment the restaurant was closed every Monday and Tuesday at lunch time. The applicant was required to be at work from 5:00 pm to 9:30 pm Tuesday to Sunday (inclusive) and 12 noon to 2:30 pm Wednesday to Sunday (inclusive). The applicant was paid weekly, on a Sunday.
The restaurant closed every year from about 23 or 24 December and reopened in mid January. The restaurant was also closed on Good Friday, Easter Monday and the Queen’s Birthday.
The applicant took holidays and travelled overseas during the time he was employed by the respondent.
The applicant left Australia on 2 December 2004 returned on
22 December 2004, left again on 24 December 2005 and returned on
10 January 2006.There were group certificates issued for the applicant showing wages paid for financial year 2002/2003 on 23 September 2004, for financial year 2003/2004 on 7 October 2004 and for financial year 2004/2005 on 17 October 2005.
On 20 June 2006 the applicant and Mr Lok who signed as ‘director’ for the respondent completed an employment agreement which was to “commence on 20 June 2006 or the date … the valid visa is granted”.
On or about 30 August 2006 the applicant made a permanent residency application. At or around the same time a group certificate for the applicant for financial year 2005/2006 was issued.
The applicant claimed he sustained an injury at work on 13 March 2007 and went to see a doctor on 20 March 2007. That day the applicant had been advised the employer nomination for his permanent residency visa had been withdrawn and he was asked whether he wished to withdraw his application for a permanent residency visa.
The applicant’s employment ceased on 21 March 2007. Following this the applicant commenced proceedings against the respondent in the Federal Court alleging inter alia his employment had been terminated for a prohibited reason under the WR Act. On 10 April 2007 the applicant advised DIAC he was withdrawing his application for permanent residency.
The applicant made a WorkCover claim on 11 July 2007. The applicant made a complaint to the Workplace Ombudsman on 18 July 2007.
On 20 July 2007 the applicant was advised his WorkCover claim was incomplete and could not be progressed.
On 2 August 2007 the applicant was advised the Workplace Ombudsman was investigating his complaint. On 7 August 2007 the applicant was given notice his WorkCover claim had been rejected.
The proceedings commenced by the applicant in the Federal Court settled on 9 October 2007 and the parties entered into a deed of release. On 25 March 2008 the applicant was advised that the Workplace Ombudsman had finalised its investigation into, and would not pursue, his complaint.
Later that year the applicant commenced these proceedings.
Issue of breach of contract
Before turning to consider the evidence in this matter it is necessary to deal with an issue that was raised by Counsel for the applicant after the evidence had closed.
In order to place this issue in proper context, and why the time at which it was raised, is a matter about which criticism of the applicant and those advising him can reasonably be made, it is necessary to recall the grounds raised by the amended application. These have already been set out at paragraph [10] above.
Notwithstanding those were the grounds in the amended application, the applicant’s submissions filed 9 October 2009 raised the following issue:
“…
5.At the hearing of this matter …, the question arose as to whether the Applicant could appeal to his right under these two contracts given that in his Amended Application dated
2 September 2008 he had sought relief pursuant to section 720 and 722 of the Workplace Relations Act 1996 and these provisions provide only for recovery of wages where there has been a breach of an award, order or certified agreement. As the said provisions do not expressly admit recovery on the basis of other grounds, such as due to breaches of a Common Law contract, the question is whether the Applicant in the present proceedings can nonetheless claim compensation for contractual breaches in addition to his award entitlement.
6.The Applicant concedes that his Amended Application does not expressly raise the issue of breach of contract. However, he contends that breach of contract became and remained an issue between the parties from the time that he filed his Contentions of Fact and Law on 13 October 2008 (hereafter “Contentions of Law and Fact”). The Applicant maintains that the issue of breach of contract was from then on raised expressly at every subsequent opportunity and each time at some length.”[4]
[4] Applicant’s submissions filed 9 October 2009
The applicant’s submissions then went on at paragraphs 10 to 58 to contend why he believed he could claim compensation for contractual breaches in addition to seeking to enforce his entitlements under the WR Act.
In those submissions the applicant made repeated reference to the decision in O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455 and the comments made by the Full Court in that case about the “informality” governing proceedings in this Court. Those submissions appeared to ignore the omission made in the conduct of his case referred to earlier.
In O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455, the Full Court of the Federal Court (Carr, Moore and Marshall JJ) said at [16]:
“We are prepared to accept that in a case such as the present MBF was entitled to know, as a matter of procedural fairness, that s 51A was relied on either expressly or by clear implication. It is unnecessary to address the question of whether it needed to be pleaded in this case particularly having regard to the comparative informality created by the legislative scheme governing the Federal Magistrate Court including its Rules.”
It is also correct as Lander J said in Rana v University of South Australia (2004) 136 FCR 344 at [37]:
“The Federal Magistrates Court has abandoned pleading in favour of affidavits. In doing so, it has recognised that the Court has been crated to offer relatively inexpensive and expeditious justice. It is a court which should proceed without undue formality and should ensure that the proceedings are not protracted: s 42. It has abandoned the formal procedures of superior courts. That course is consistent with the Act and the FMC Rules.”
However, the applicant’s submissions concede the issue was not raised in his amended application. The applicant acknowledged he had only sought relief pursuant to ss.720 and 722 of the WR Act, but nonetheless pressed the Court to deal with a claim [for] contractual breaches (not raised in the amended application) in addition to his entitlement under the WR Act when it was raised after the evidence had closed. (emphasis added)
On this issue the respondent’s position was:
“20.The Respondent submits that regardless as to whether the Federal Magistrates’ Court is a Court of pleadings or not the Applicant has not, prior to its submissions dated 9th October 2009 sought to invoke the accrued common law jurisdiction of the court to have the court take the “contracts of employment” into account in any way other than to justify the claimed classification of “Head Chef”.
21.However it is trite law that a party may amend pleadings at any time prior to judgement to ensure that the real issues in dispute are brought before the court provided that no injustice or irreparable harm will be done to the other party. If the only harm to be done to the other party is incurring further costs this is normally remedied by a costs order against the party seeking to amend.”[5]
[5] Respondent’s submissions filed 19 October 2009
It is apparent that there had already been errors made in respect of the original application filed on behalf of the applicant, who at all times had been represented by Counsel. The applicant was required to file an amended application and also had to seek an adjournment due to a failure to comply with orders for filing material for hearing.
It is also important to pay particular attention to the case advanced on the applicant’s behalf (embodied in the amended application), for it was that case that the respondent answered, and not the more general assertions made in submissions after the evidence had closed, by Counsel for the applicant.
Contrary to the submission of the applicant, I am not satisfied the issue was a live issue about which the respondent had an opportunity to lead evidence at the hearing. A party to proceedings in the Federal Magistrates Court must be put on notice of the case against it and have an opportunity to respond.
The jurisdiction of the Court does include associated or accrued jurisdiction pursuant to s.18 of the Federal Magistrates Act 1999 (Cth). However, I note that the associated jurisdiction has to be properly invoked.
The provisions of the Federal Magistrates Act 1999 (Cth) would have provided the applicant with the opportunity to seek leave to further amend the application. That was not done.
Whilst the issue was raised in contentions of fact and law the applicant only invoked the jurisdiction of the Court under the WR Act and only sought relief on that basis.
In large part this difficulty arises as a result of the way the applicant put its case such as in the contentions of fact and law when the rates in the DIAC documentation was referred to[6] and also the possible application of relevant industrial instruments was averted to.[7] This confusion was further compounded as in those contentions the applicant specifically sought “restitution of his unpaid wages pursuant to the provisions of section 720 and 722 of the” WR Act.
[6] see eg. paras 43 & 56
[7] see eg paras 46, 52, 61
In the circumstances, I am not willing to accept that the applicant advanced the case that the assertions made after the closing of the evidence suggest.[8]
[8] the submissions at para 21-33 also conflated the issues
However, given the position of the respondent on this issue, this is a matter to which I will return later in these reasons. The reason I will do so is this issue, will it appears, by virtue of the way it has been advanced by the applicant further protract these proceedings.
The legislative framework
At the time of the commencement of the applicant’s employment the legislative arrangements for the terms and conditions of employees in Victoria was determined in large part by the WR Act.
In 1997 the Victorian Parliament referred legislative power over various industrial matters to the Commonwealth Parliament. After that date where an employer, wasn’t bound by a federal award, the employer was required to comply with the minimum terms and conditions provided for in the relevant parts of the WR Act.[9]
[9] see for e.g. s.500 and Schedule 1A of WR Act prior to amendments to WR Act made on 26 March 2006
Included in those minimum conditions was the provision for minimum wage orders which were made by the Australian Industrial Relations Commission (“AIRC”) that applied to employees in particular, industries where they weren’t otherwise covered by a federal award.
The Accommodation, Cafes, and Restaurants Industry Sector Minimum Wage Order Victoria 1997 (“the Order”) was one such order. By clause 4 it applied to any industry in Victoria providing hospitality services in the form of inter alia restaurants. It also included a classification for a Hospitality Employee Level 3, which was defined to include at 6.4.4 Cook Grade 2 “means an employee who has the appropriate level of training and who performs cooking duties including cooking, baking, pastry cooking or butchering”.
Also included in the classification structure of the Order was a Hospitality Employee Level 4, which was defined to include at 6.5.2 Cook Grade 3 “means a commi chef or equivalent who has completed an apprenticeship or who has passed the appropriate tread test and who is engaged in cooking, baking, pastry-cooking or butchering duties”.
There was also a Hospitality Employee Level 6 which was defined to include at 6.7.1 Cook Grade 5 “means a chef de partie or equivalent who has completed an apprenticeship or who has passed the appropriate trade test in cooking, butchering or pastry cooking and has completed additional appropriate training who performs any of the following:
6.7.1(a)general and specialised duties including supervision or training of other kitchen staff;
6.7.1(b) ordering and stock control; and
6.7.1(c)sole responsibility for other cooks and other kitchen employees in a single kitchen establishment.”
In 2004 legislation was passed at the federal level[10] that gave the AIRC power to declare common rule awards in Victoria.[11]
[10] Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2004
[11] The parties submissions proceeded on this basis
In late October 2004 the Liquor and Accommodation Industry – Restaurants – Victoria Award 1998 (“the Award”) was declared a common rule award, which was made effective from the first full pay period on or after 1 January 2005 and applied to the respondent.
The Award contained a six level classification structure similar for all present purposes to that in the Order referred to above.
On 26 March 2006 by virtue of the amendments to the WR Act, made by the Workplace Relations Amendment (WorkChoices) Act 2005 (“the Workchoices Act”), the classifications and rates of pay in the Award became part of an Australian Pay and Classification Scale (APSC), the Australian Fair Pay and Conditions Standard (AFPCS) came into operation and otherwise the Award continued in effect up until the date of termination of the applicant’s employment.
As the background rehearsed earlier makes clear the claims made by the applicant occurred before and after the amendments to the WR Act by virtue of the WorkChoices Act.
By the time this matter proceeded to hearing the WR Act had been repealed and the Fair Work Act 2009 had commenced on 1 July 2009.
However, by virtue of the provisions of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 the WR Act continues to apply on and after its repeal in relation to conduct that occurred before the repeal. Accordingly, the WR Act as it applied from the time to time continues to apply to the issues raised in these proceedings and the parties proceeded on this basis.
At the time the amended application was filed section 720 of the WR Act provided that:
“If an employer is require by an applicable provision… to pay an amount to an employer or to pay an amount to a superannuation fund on behalf of the employee, the employee or an inspector on behalf of the employee may, not later than 6 years after the employer was required to make the payment to the employee or fund, sue for the amount of the payment in eligible court.”
So far as is relevant for present purposes the applicable provision was defined in s.717 as:
“(a) a term of one of these that applies to the person:
(i) …
(ii) the Australian Fair Pay and Conditions Standard;
(iii) an award; …”
It is common cause the Award is an award for the purposes of s.717 and there was no dispute that the Court (as an eligible Court) has jurisdiction to make the orders sought by the applicant and the applicant bore the onus of proof.[12]
[12] see e.g. Duncans Holdings Ltd v Cross (1997) 76 IR 261 at 264, see also Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250
Evidence
The applicant gave evidence with the assistance of an interpreter and was cross examined. Mr Chee, who worked as a waiter at Malaya Inn in 2004 also gave evidence for the applicant and was cross examined.
Mr Paul Luo, the manager of the Malaya Inn gave evidence for the respondent and was cross examined. Ms Pheak Hoon Yeoh, (the director, secretary and shareholder of the respondent) also gave evidence and was cross examined, albeit with the assistance of an interpreter.
The Court has had the opportunity of observing the protagonists give their evidence and be cross-examined. Whilst one of those who was involved in the respondent’s business, Mr Lok, was not on affidavit or called to give evidence the Court was only asked after the event to draw any adverse inference on that basis.[13]
[13] see para 98 of the applicant’s submissions
I have refrained from forming a view of the applicant and Ms Yeoh, solely on the basis of their demeanour whilst giving evidence. Particularly, as their evidence was given through an interpreter.
However the applicant’s evidence was punctuated by obvious difficulties in giving a simple or clear answer. Whilst differences or lapses in recollection are understandable given the passage of time, there were difficulties, to which I will turn presently, in reconciling important parts of the applicant’s evidence.
The applicant was unwilling to make concessions when confronted in cross-examination with either inconsistencies in his explanation of the course of events or suggestions that his claims were misconceived. Finally, and unfortunately, it became clear during the course of the hearing, and whilst the applicant was being cross examined that his solicitor had spoken to him about his evidence. All of these issues left the Court with doubts about the applicant’s evidence.
Given this and before turning to review the evidence it is important to make clear that in this matter and by virtue of s.729 of the WR Act, the applicant bore the onus of proof to make out the underpayments and breaches of the WR Act.
Evidence of applicant
The applicant’s affidavit rehearsed in considerable detail the exchanges with and correspondence to DIAC from the migration agent regarding the approval of his visa in 2002.[14]
[14] see paras 1-16
The applicant then went on to depose:[15]
[15] affidavit sworn 6 April 2009
“17.On or about 30 September 2002 I was informed by my solicitor and I believe that the Respondent received a letter from DIMA advising them that their application for sponsorship of my 357 visa was successful and was granted for 4 years. In this letter my position is clearly stated as that of Head Chef and the salary level is specified as $40,000. Now produced and shown to me and marked as Exhibit “LSS 10” is a copy of the letter of approval.
18.In the letter of approval referred to above is appended a list of undertakings of the employer which include paying tax instalments, superannuation contributions, and complying with industrial laws and Australian levels of remuneration.
19.Since around September 2002 I worked continuously as Head Chef in the restaurant. I worked alongside with my brother in this role for about 1 year and then he left and
I continued alone.
20.When I first began work I was paid only $570 per week in cash and received no overtime, no penalty rates and no holiday pay. But in the beginning of August 2003 this was increased to $611. Form August 2003 until August 2006
I was paid in cash only $611 per week and received no overtime, no penalty rates and no holiday pay.
21.On or around 24 August 2006 Sinolink acting on behalf of the Respondent and myself applied for a Employer Nominated Scheme Subclass 856 visa, in which the Respondent was to be the sponsor for my achieving permanent residence status. Now produced and shown to me and marked as Exhibit “LSS 11” is a copy of the letter of application.
22.Attached to this application was an Employment Agreement which was signed by the parties on 20 June 2006. The title of the document has the words “Employment Agreement – Head Chef” on the front page. In clause 2.1.1 of the said agreement the commencing total remuneration package states my base salary to be $41,850, inclusive of superannuation.
23.Under a heading “Conditions of Employment” in clause 2.2.1 it is stated that my hours of work shall be 38 hours per week, but that I may be expected to work overtime from time to time. I was indeed expected to work overtime and worked the same long hours as I had previously worked before this new contract.
24.In Schedule 1 of the Employment Agreement is a position description in which I am referred to as Head Chef.
The responsibilities and duties listed in my view are correctly listed for a position such as Head Chef and I did indeed carry out such duties in my regular work both before and after this contract came into effect. Now produced and shown to me and marked as Exhibit “LSS 12” is a copy of the said agreement.
25.In the application form signed by Mr. Albert Lok for the Respondent on 28 August 2006, my base salary is stated as $41,850 but my total remuneration package is stated as $47,000. I never received an amount during the currency of my contract of either $41,850 or $47,000 and indeed received much less as explained below. Now produced and shown to me and marked as Exhibit “LSS 13” is a copy of the said application forms.”
The applicant also deposed that:[16]
[16] see affidavit sworn 6 April 2009
“27.Despite these contractual documents, the exact terms under which I was expected to work for the Respondent were not made clear to me before I took up the work. Upon starting the work I found that I had to work 6 days a week for up to 80 hours per week.
28.For the entire period I worked for the Respondent, my working day usually started at 8.30 am or 9.00 am but I was always at work by 9.30 am.
29.I was not usually finished until 11.00 pm every working day except Mondays, but I was always still working at 10.30 pm owing to the fact that customers were still being served at 9.30 pm.
30.The only day that was different to this was Monday when
I only had to work 4 hours preparing food for the week. This was always from 11.00 am to 3.00 pm.
31.On normal work days, I usually had a brake from work in the afternoon from 3.00 pm till 4.30 pm or 5.00 pm. Always by 5.30 pm at the latest I had to start work again to get ready for the evening meals.”
In relation to his duties with the respondent, the applicant deposed:[17]
[17] ibid
“41.My speciality as a chef is a Chinese dish called “Hainan Chicken”. The dish has to be prepared in a special way and takes several hours. I usually prepared this dish first thing in the morning so it was ready for the lunch customers.
42.The main other work I did was to prepare Chinese-style meals for the restaurant for the lunch and evening meal each day. I was also Head Chef and therefore responsible for managing the kitchen as a whole. This included me giving directions to other kitchen staff, coordination the kitchen work as whole and being responsible for ordering food and other administrative work.
43.In the entire time I worked for the Respondent, with the provisos explained below, I was given no days off and no holidays. Furthermore, I was never paid any overtime or penalty rates for the work I did in excess of 38 hours in a week, or for weekends, or for public holidays. I was also never paid any leave loading for annual holidays which I as not given anyway.
44.I have read the Respondent’s statement that I did take holiday, but what he says about this is not accurate. It is true that I did work during 4 brief periods when the restaurant was closed, and on some of these occasions
I returned to Singapore for a visit to my family and friends.
45.The first such brake (sic) was at the end of 2002 when the restaurant was closed for 3 weeks from 23 December 2002. The restaurant was also closed from 2 December 2004 until 22 December 2004. It was closed again from 31 December 2005 till 10 January 2006. It was also closed from
23 December 2006 til mid January 2007. On some of these occasions I admit I took a holiday overseas, but I never received any pay during these periods and certainly no leave loading. Now produced and shown to me and marked as Exhibit “LSS 14” is a copy of my international movement records showing that I travelled overseas on two of these occasions.
46.I have read the claims of Pheak Hoon Yeoh in paragraph
7 of her affidavit of 4 December 2008 that she paid me on behalf of the Respondent $700 per quarter prior to January 2005 and $750 after that date as holiday pay. I say I never received such payments. The only pay I ever received were the weekly payments referred to above.
47.I have also read the claims that I was rewarded with the use of a car. This utterly untrue, as I never had such a benefit.
48.I have also read the claims that I was rewarded with free accommodation, but this was never part of any agreement
I made regarding remuneration for my work.
The accommodation I had was indeed free but was very basic and the Respondent never placed a monetary value on it or asked for payment.”
The applicant gave no evidence before the Court that he was responsible for staff or that he supervised others in the kitchen. In cross examination the applicant agreed that he had worked with others in the kitchen. The applicant also agreed with the proposition put to him in cross examination that the affidavit of Mr Luo summarised what his responsibilities were. The applicant agreed others involved in the business did the shopping and he had not been asked to work on Mondays and the restaurant wasn’t open for lunch on Tuesday.
The applicant was taken in cross examination to inconsistencies between his affidavit material and the contentions of fact and law filed on his behalf regarding opening hours, deductions for tax and superannuation, tax refunds and group certificates. The applicant was unable to explain those inconsistencies other than to say he didn’t understand what he had previously complained about.
The applicant was confronted in cross examination with the inconsistencies between his affidavit material, the absence of any clarification in his evidence before the Court and the documentation that had been tendered that made clear that contrary to that material he had been paid whilst on holidays.
The applicant did not nominate an exact date he commenced his employment with the respondent. The applicant’s material had put it as in the vicinity of September 2002 or October 2002 but the applicant maintained nonetheless despite the records suggesting otherwise he had not worked without a valid visa (notwithstanding this was not granted until 30 September 2002).
Indicative of the confusion that bedevilled the conduct of the applicant’s case, was his answer to questions in cross examination about why he had filed material claiming he had not received superannuation. His answer made clear that, at least in his own mind, if not also in the mind of his solicitor who prepared the material, he had conflated his various visa applications and employment arrangements and appeared to assume the former determined his entitlements under the WR Act. His answers underscored the reservations about his evidence including that he believed he had not received superannuation as DIAC had rejected his application for permanent residency. However the history behind this matter, as traversed earlier makes clear, that application was discontinued at his initiative. Furthermore quite how the two were related in his own mind (or of those advising him) was never adequately explained.
Much of the applicant’s affidavit material was based on information or belief. Overall the applicant’s evidence made plain that not only had others prepared the material which he appears to just have signed without understanding but importantly he remained confused about his entitlements under the Award or the WR Act and the interaction of those with his visa requirements.
Mr Chee’s evidence, such as it was, made plain he had been employed as a casual waiter for only 8 months in 2004. He stated that in relation to the matters in dispute he could offer no probative evidence and couldn’t even answer questions put to him in cross examination as he “just didn’t know” as it was “too long ago.” Mr Chee certainly could not and did not give evidence that the applicant carried out the duties of a ‘head chef or Cook Grade 5’ during the period of his employment.
In this regard I reject the claim made on the applicant’s behalf in final submissions that Mr Chee “partially corroborated” his “version”.[18]
[18] see para 74 – Applicant’s submissions
Evidence of respondent
In his affidavit Mr Luo deposed:[19]
[19] see affidavit filed 8 December 2008
“…
2.I know the applicant. He is related to me by marriage.
The Applicant is a citizen of Singapore and came to Australia on a visitor’s visa in 2002 in the company of his older brother.
3.The restaurant is a fairly standard suburban restaurant. It is situated in a normal suburban street in a building consisting of two shops fronts. It does business with families and also take-away trade. It does not cater for, nor attract, business people at lunch time. The only reason it opens at lunch time is because during that time food preparation is done for dinner and it might as well be open to take advantage of any business that might be available.
4.The applicant and his brother stated that if the family were to buy the restaurant they would both work as cooks.
5.My mother decided to buy the restaurant. When the purchase was completed both the applicant and his brother altered their visa status to Temporary Business (Long Stay) Visas – subclass 457 and came to work in the restaurant. The applicant’s brother was more experienced as a cook and did most of the cooking.
6.As the restaurant was a simple suburban restaurant we simply continued with the previous menu. There was no menu planning done and the restaurant continued to trade as before. There was no head chef and no one performed the duties that might be expected of a head chef in a more sophisticated restaurant, such as seasonal changes in menu and planning for functions. Customers simply ordered from the menu as it was.
7.After about twelve months that Applicant and his brother had an argument and his brother left the restaurant. I am not aware of his brother’s whereabouts now. Once the applicant’s brother left we employed another person to perform the duties he had performed.
8.The Applicant was engaged and employed as a cook.
The Applicant’s duties were to prepare a specialty dish known as Hainan Chicken and to prepare some noodle dishes and soups. He was not responsible for the management of the kitchen or the preparation of main courses.
9.The applicant determined his own wage rates based on what he knew other people in similar situations were being paid. The respondent provided the applicant with Group Certificates.
10.The restaurant was closed all day Monday and Tuesday at lunch time. The Applicant was required to be at work from 5:00 pm to 9:30 pm Tuesday to Sunday (inclusive) and
12 noon to 2:30pm Wednesday to Sunday (inclusive).
As previously stated food preparation for dinner was the main duty during the lunch periods. Occasionally it would be necessary for him to stay later than 9:30 pm, but because of the nature of the restaurant and its clientele there was little late trade and as a rule last orders were taken at 9:30 pm and the kitchen closed immediately after the final order were prepared.
11.The restaurant did open on Good Friday, but was closed on all Monday’s including the public holidays which fall on a Monday. It opened for dinner on Tuesdays, including Melbourne Cup Day.
12.In 2006 the applicant applied for permanent residency in Australia. We provide him with a supporting reference.
He had gone to seek assistance from an immigration agent, apparently to get advice as to what should be in his applicant. All information concerning his work experience in Singapore and Malaysia was prepared by him, as we had no knowledge of his activities prior to him commencing work with us.
13.The Applicant took holidays and travelled overseas during the period he was employed by the Respondent.
14.The Applicant’s employment with the Respondent ceased on or about 21st March 2007 for reasons of poor conduct and performance…”
Mr Luo’s answers to questions in cross examination made plain the business was a family business and that his mother Ms Yeoh was responsible for the business not Mr Lok. He deposed that the applicant was a cook not a chef, who prepared chicken and other dishes. Mr Luo’s evidence was the applicant had not been involved in the menu or supervising other staff and he had not carried out the duties of a head chef.
It is true as was raised in submissions filed on behalf of the applicant that Mr Luo expressly disclaimed involvement in and knowledge of the arrangements for the applicant’s engagement.[20]
[20] see para 63-78 – Applicant’s submissions
However those submissions sought to make a virtue out of this claim but ignored the absence of evidence from the applicant to corroborate his claims and also ignored that Mr Luo’s evidence was the applicant certainly did not carry out the duties of a ‘head chef’ or Cook Grade 5 during his employment but rather that of a cook.[21]
[21] see para 70- 73
Importantly, the evidence of Mr Luo corroborated that given by
Ms Yeoh that the applicant was the brother of his sister in law and he was paid for the actual hours he was required to work.
In Ms Yeoh’s affidavit filed 8 December 2008 she deposed:
“1.I am the director, secretary and shareholder of the respondent company and I am authorized to make this affidavit on its behalf.
2.The respondent purchased the business known as The Malaya Inn Restaurant at 25 Village Avenue, Doncaster (“the restaurant”) in 2002. The company purchased the business with the financial assistance of my children.
3.At the time of the purchase of the restaurant two cooks were employed. One was the applicant Mr. Sim the other was his brother.
4.The applicant informed that he had spoken to other cooks and told me how much he and his brother were to be paid and how they were to be paid. The applicant said that he wanted to be paid and was paid in cash.
5.I kept a record of how much I paid the applicant. This was recorded in exercise books in my handwriting.
6.I have two exercise books with the records of the applicant’s earnings. The earliest records that I still have date back to April 2004. The earlier records have been misplaced, lost or destroyed.
7.It is my recollection that prior to April 2004 to January 2005 the applicant:
(a) Was paid $700 per week;
(b) Was paid a further $700 per quarter as holiday pay;
(c) Was paid a further $500 per month
(d) Received accommodation paid for by the company;
(e)Received the use of maintained motor vehicle paid for by the company.
8.In January 2005 up until the time of termination of his employment the applicant:
(a) Was paid $750 per week;
(b) Was paid a further $750 per quarter as holiday pay;
(c) Was paid a further $500 per month;
(d) Received accommodation paid for by the company;
(e)Received the us of maintained motor vehicle paid for by the company.”
Ms Yeoh was asked in her evidence in chief to explain the records of the applicant’s wages[22] and did so I am satisfied, to the best of her ability.
[22] see exhibits R5, R6 & R7
Consistent with the position of the respondent throughout the proceedings, Ms Yeoh’s evidence is cross examination established the applicant had been sponsored and employed initially because he was a relative. Her evidence in cross examination also established that as the events rehearsed earlier make clear the arrangement broke down and each of the parties continue to harbour resentment towards the other.
Ms Yeoh was asked a number of questions in cross examination about Mr Lok’s role in the business, including why, notwithstanding the documents provided to support the visa application in 2002, the applicant was paid at the rates he was. Ms Yeoh’s evidence in cross examination made plain the applicant carried out the duties of a cook and in her view was employed as a cook, not a head chef or Cook Grade 5.
Ms Yeoh was asked repeatedly in cross examination about the hours the applicant was required to work, what he did work, what he was paid and what work he did. Notwithstanding the vigorous cross examination and the submissions made by the applicant.[23] Ms Yeoh’s evidence in chief was not shaken and I accept it.
[23] see e.g. applicant’s final submissions para 102
Importantly for the purposes of this conclusion, Ms Yeoh provided answers to questions in cross examination that, in my view, adequately explained the basis for the preparation of the respondent’s records such as they were.[24]
[24] see exhibits R5, R6, R7
Whilst Ms Yeoh’s evidence was roundly criticised in submissions filed on behalf of the applicant[25] those same submissions went on to make the following remarkable statement:
“96.It should be recognized that the Respondent has generally made out that the Applicant was incompetent, over paid, and only worked minimal hours per week (39.5 is claimed in the Respondent’s spread-sheet submissions). But, the Respondents have failed to provide any evidence of how their restaurant could continue in operation for so many years and be apparently viable when their key chef (the Applicant) was supposedly so limited and only present during meal times. It is submitted that it is common knowledge that a successful restaurant requires quality meals and that this takes time, effort and an able chef to prepare it. Accordingly, I say the Applicant’s version of his role, hours of work and ability in the restaurant is to be preferred.”
[25] see paras 81-95
A number of documents were tendered through Ms Yeoh whilst she gave evidence before the Court. Importantly, Ms Yeoh’s evidence proved in the absence of documentary evidence to the contrary from the applicant that the time and wage records embodied in Exhibits R5 to R7 set out the hours worked and wages paid to the applicant.
Wage calculations
Pursuant to the orders made on 9 September 2009 both parties filed submissions[26]which it had been hoped would set out in light of the evidence before the Court, the wage rates they contended were due to the applicant, under the applicable industrial instruments as against the wages paid.
[26] the applicant filed on 25 September 2009 and the respondent filed on 9 October 2009
Each of the parties did this and on the basis of those submissions, it was accepted (contrary to the position in the amended application or the applicant’s contentions of fact and law) that at the relevant times during the applicant’s employment the relevant industrial instruments referred to earlier regulated the applicant’s employment.[27]
[27] see paras 55-70
However the calculations that were provided were so disparate in their outcome as to render the exercise of little forensic value. This was due in large part to the different classifications the parties adopted for that purpose and this simply ensured that exercise further protracted the proceedings and led to unedifying sniping in written submissions.[28]
[28] see paras 105-117 of applicants submissions
The applicant adopted the highest classification in the Award[29] and appeared to do so, on the basis that some of the documentation provided to DIAC referred to head chef rather than for reasons which will become clear presently the highest function usually performed by the applicant or the major and substantial employment of the applicant[30] or even the principle purpose of the applicant’s employment.[31]
[29] the same as in the Order
[30] see Ware and O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18
[31] see Merchant Services Guild v J Fenwick & Co Pty Ltd (1973) 150 CAR 99
The respondent’s position was “[it] is by looking at duties that classifications are worked out”. The respondent’s calculations were based on the applicant being a Grade 2 Cook as those were the duties he performed and the next higher level didn’t cover the applicant’s work and the higher grades even less so.
Given the dispute between the parties, in order to determine the application, in so far as it claimed an underpayment or a breach of the WR Act, it is necessary to determine which of the Award classifications applied. Unfortunately, neither party provided any real assistance or authority to the Court on this issue save as set out above. This is an issue to which I will return.
However before doing so, I note that whilst the respondent’s wage calculations, are the subject of some criticism in the applicant’s submissions[32] it was for the applicant to lead evidence that on the balance of probabilities would enable the Court to find either an underpayment or a breach of the WR Act.
[32] see paras 105-117
Submissions
The parties also filed submissions purporting to address the evidence and in relation to issues which arose during the course of the hearing regarding other breaches of the WR Act what action should be taken in that regard.[33]
[33] applicant filed 9 October 2009 and the respondent filed 19 October 2009
Applicant submissions
The applicant filed submissions on 9 October 2009. In addressing these submissions I shall leave to one side for reasons made clear earlier the argument, (only articulated by his Counsel before the Court at the conclusion of the hearing) that the applicant was also pursuing allegations of breach of contract.
The submissions proceeded on a basis that the applicant’s work duties “can be classified in accordance with the award definitions setting out the remuneration for a Head Chef’s position.”[34]
[34] see para 1
The difficulty with submissions made on that premise is that it ignored the absence of evidence led by the applicant which would have been necessary to make such a finding.
Despite seeking to impugn the respondent’s witnesses[35] the submissions of the applicant also appeared to ignore the need for the applicant to meet the burden of proof that confronted him to make out his claims.
[35] see paras 80-95
This failure to confront the burden of proof (and lack of understanding of the operation of the WR Act and associated industrial instruments) was unfortunately a consistent theme throughout the conduct of the applicant’s case by Counsel who appeared for him and his instructing solicitor. Concerns about this were only heightened when firstly the applicant’s solicitor spoke with the applicant after Court had adjourned for the day but whilst the applicant was still being cross-examined and secondly it was necessary to adjourn the hearing so those advising the applicant could locate and obtain copies of the relevant industrial instruments and they had to be directed by the Court as to where those could be obtained.
The applicant’s submissions did, in part, address the evidence given before the Court.[36] In doing so the applicant’s submissions contended that the evidence of the applicant should be preferred yet noted the evidence of the witnesses for the respondent that he was employed as a cook. [37] This is important as there were no submissions made on behalf of the applicant, having regard to the evidence before the Court as to the relevant classifications under the applicable industrial instruments other than it appeared the applicant relied on the reference to ‘head chef’ in the visa application and the contract in 2006 to make out his claim.
[36] see paras 63-104
[37] see paras 66-69
The applicant’s submissions acknowledged the evidence of the respondent’s witnesses regarding his hours of work.[38] The applicant could point to no evidence to corroborate his claim(s) that he worked hours different to those recorded, in what records the respondent did keep.
[38] see paras 70-77 and 80-95
The applicant’s submissions then proceeded to take issue with the respondents wage calculations provided after the hearing.[39] In doing so, the applicant’s submissions ignore that those calculations were based on the evidence, such as it was, of the time and wage records kept by the respondent.
[39] see paras 105-117
Whilst the applicant’s submission go on to criticise those records and ask the Court to reject them as “a construction of the writer” and bearing “no relation to the actual payments made” they could point to no independent evidence to corroborate the applicant’s contention that his “claims” should be accepted.[40]
[40] see paras 105-117
Respondents submissions
The respondent filed submissions on 16 October 2009. Those submissions reviewed the evidence[41] and reiterated the respondent’s position that the applicant “was paid more than the equivalent of all legal entitlements in accordance with the Minimum Rates Order, the Award and legislation…”
[41] see paras 3-16
The respondent’s submissions[42] addressed the issue of the correct classification of the applicant (at paragraph 3 and paragraph 14) which provided:
14.The rates listed as those required to be paid are taken from the regulatory instruments referred to in paragraph
12 herein. The wage rate chosen is that of Cook Grade 2 which falls under the classification “Hospitality Employee Level 3”. The definition of Cook Grade 2 reads “an employee who has the appropriate level of training and who performs cooking duties including cooking, baking, pastry cooking or butchering”. Regardless of what the immigration agent may have put on visa application forms and which the respondent went along with as it was trying, as explained by Ms Pheak Hoon Yeoh, to assist a member of the family, those are the duties he performed. It is by looking at duties that classifications are worked out (for example by the Fair Work Ombudsman). The next higher level requires the person to be a “commi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test and who is engaged in cooking, baking, pastry cooking or butchering duties”. Clearly this does not cover the Applicant’s work and the higher grades even less so.”
[42] filed 19 October 2009
Importantly, for present purposes the respondent’s submissions[43] noted:
[43] ibid
“…
12.The Applicant has at all times been paid and had the benefit of the conditions of employment required by law plus the additional benefits set out in paragraph 4 above. The rates the Applicant was paid and the appropriate regulated rates that were required to be paid (by the Accommodation, Cafes and Restaurants Industry Sector – Victorian Minimum Rates Order 1997 as varied from time to time and the Liquor and Accommodation Industry – Restaurants (Victoria) Award 1998) for the hours he worked are set out in the spread sheet that was filed by the Respondent on 25th September 2009.
13.The rates actually paid are those agreed between the Applicant and Respondent and include cash amounts which did not appear in the “first” exercise book, but which were confirmed by Ms Pheak Hoon Yeoh in her evidence, although denied by the Applicant. Significantly this denial came after he had amended his evidence in respect of the exercise books, in cross examination, after his solicitor had spoken to him whilst he was still under oath.
The Respondent, on advice from its solicitor, advised the Australian Taxation Office of the revised wages and filed paid the outstanding liabilities and advised the Applicant in writing, both personally and through his solicitors.
…
15.The wage rates are those provide for at each relevant time. Until 1st January 2005 neither annual leave loading nor overtime were payable. After 1st January 2005 annual leave loading at 17.5% was payable on leave accrued subsequent to that day. Although accidentally omitted from the spread sheet this was added in a subsequent letter from the Respondent’s solicitors. The Respondent apologises for any inconvenience caused to the court by this omission.
As annual leave was taken at the end of each year the loading was calculated on the wage rates applying at that time. Under the Award overtime was payable on hours in excess of 38 in any one week. As the evidence is that the pay week ended on a Sunday, the overtime has been calculated at the Sunday rate.
…”
Finally, the respondent dealt with the criticism levelled against the calculations it had done in the applicant’s submissions. The respondent[44] noted:
“16.At paragraph 109 of his submissions the Applicant says that “the Respondent has provided no explanatory notes, nor has the Respondent provided copies of the industrial instruments on which they are relying”. The submission is mischievous and untrue. The spread sheet is, in the Respondent’s submission, self explanatory and there is sufficient explanation on it for it to be understood. It is that Applicant who is trying to justify what the Respondent submits are extraordinary wage rates and hours with no evidence, apart from the tainted and contradictory evidence of the Applicant himself so it needs equally extraordinary submissions. Further the Respondent compiled a bundle of documents comprising the industrial instruments governing the employment and had them hand delivered to the Applicant’s solicitors at no charge to the Applicant. The same bundle of documents was delivered to the Court.”
[44] ibid
Conclusion
I have not recited, nor do I intend to recite, all of the evidence that was presented over the three days of hearing although all the evidence has been considered and taken into account as have the material and the submissions filed by both parties.
As set out earlier given the position of the parties in order to determine the application in so far as it claimed an underpayment under the WR Act it is necessary to determine which classification in the industrial instruments applied to the applicant. Neither of the parties provided any authority or meaningful submissions to assist in resolving the dispute between them on this issue and accordingly it is necessary to turn to the authorities on this question whilst doing the best I can on the material before the Court.
In Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union & Anor (1998) 29 IR 263 at 275, a Full Court of the Federal Court adopted a test to determine this sort of question as one based on whether the employee was engaged substantially in the duties of the relevant classification.
The principle generally applied to determining whether an employee is engaged in a particular classification or class of work has been referred to as “the principle of major and substantial employment”. It has also been referred to as the “principal purpose” test. It was described by Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd (1971) AR (NSW) 18 in the following terms:
“This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and certain elements which taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied expect to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.”
These principles have been applied in cases in the federal jurisdiction and I am satisfied are applicable in this case.[45] There was an absence of proof as to what qualifications the applicant did have and, whether to the extent he did have qualifications[46] they had been approved by relevant trade authorities.
[45] see Logan and Otis Elevator Company Pty Ltd (Unreported) IRCA, Moore J, 20 June 1997
[46] see photocopies of courses completed overseas that were attached to his various applications
However, on what is before me I cannot be satisfied the applicant had completed the necessary training and/or accreditation for the purpose of enabling the Court to be satisfied the classification he contended for should apply.
Furthermore on what is before me even taking into account all the documentation I cannot be satisfied the applicant was engaged substantially in the duties of the classification for which he contended. I am not satisfied the applicant’s actual duties were the supervision or training of other kitchen staff, or the ordering of and stock control or the sole responsibility for other cooks or kitchen employees.
Accordingly, on that basis I would proceed to determine, that part of the proceedings that sought relief under the WR Act on the basis, the applicant was not engaged substantially in, or the major and substantial employment of the applicant was not, in the position of head chef or Cook Grade 5 under the Award but as a cook as contended for by the respondent.
Given the burden of proof fell to the applicant to make out the underpayment he was required to meet this by way of evidence capable of persuading the Court of the facts in issue to the requisite standard. The informality of, and expedition in, proceedings mandated by the Federal Magistrates Act 1999 (Cth) and Federal Magistrates Court Rules 2001 (Cth) cannot be a substitute for proof of facts where the facts are disputed as they were here.
The Court has therefore only had regard to the assertions made in the applicant’s submissions to the extent that there is evidence of those assertions in the evidence before the Court.
The applicant had filed an affidavit which exhibited correspondence from the Workplace Ombudsman dated 25 March 2008 which provided:
“…
The investigation into your claim could not identify breaches of the Act or the relevant award that may have resulted in a determination that you had been underpaid.
In order to sustain your claim that you had not been paid correctly for all hours worked and quantify any underpayment,
I needed to be able to determine the hours you were required to work by your former employer for every shift that you did work.
I also needed to determine the total gross amount paid to you for each week.
The information that you provided to this Office in support of your claim was not sufficient to enable me to make the determination that you sought.
The employer disputed your claims and provided information in support of their position. I was told that you were required to work during the trading hours of the Malaya Inn and that you were adequately paid for such hours. The employer states that while you may have worked outside these trading hours, you worked extra hours by your own choice.
While the employer could not produce proper records, the records they did have indicated that, overall, you were paid adequately for time you were required to work and that you were paid for annual leave, both taken and accrued.
As I am unable establish with any certainty that L.U.O Enterprise Pty Ltd trading as Malaya Inn Restaurant was not meeting its obligations under the Act and the Liquor and Accommodation industry – Restaurants – Victoria – Award 1998, in relation to your claim, I am unable to sustain your claim.
…”
That correspondence was from the Workplace Ombudsman. That office was abolished by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. However, the Fair Work Ombudsman has assumed the functions of that office and is the body who carry out investigations into underpayments such as that carried out in relation to the applicant’s claim in 2007 just after his employment ended. Having received that advice, from the body responsible under the relevant legislation for inter alia bringing proceedings to recover employee entitlements, the applicant commenced these proceedings.
This matter was raised in the respondent’s submissions were it was noted:
“19.The Respondent further submits that the Applicant’s employment and remuneration during that employment were the subject of an investigation by inspectors employed by the then Office of the Workplace Ombudsman and that investigation resulted in the conclusion it was impossible to calculate if any breaches had occurred and no further action was justified. It did provide training and advice on the keeping of pay records and requires an annual inspection of them.”
There were no bank records produced to corroborate the applicant’s claims of monies he did receive and what evidence there was appeared to conflate the issue of underpayment of wages under the WR Act and breach of undertakings given to DIAC. The applicant did not keep or produce contemporaneous wage or bank records to assist in establishing his claims.
Consistent with the way his case had been conducted the applicant made no submission on the correct classification under the relevant industrial instruments in light of the evidence other than to maintain the claim he was a ‘head chef’.[47] The applicant’s submissions appeared to proceed on the basis that the invocation of the title ‘head chef’ as in the visa application or draft contract in 2002 (that was never signed) or the 2006 contract was sufficient to determine the issue notwithstanding the weight of evidence that the applicant carried out the work of a cook as contended for by the respondent.
[47] see for e.g. para 62 of applicant’s submissions
Whilst offering no explanation of the classification arrived at other than that referred to above, and no authority to justify such a contention, the applicant’s submissions were strident in their criticism of the respondent’s position on how the applicant should be classified.[48]
[48] see for e.g. paras 109-110 of applicant’s submissions
The submissions which were made proceeded on the basis of the applicant’s claim not what the evidence was where they weren’t otherwise contradictory.[49] For the reasons set out earlier the Court is not satisfied that the respondent’s calculations evince an underpayment and the applicant’s submissions and calculations suffer from the problems already discussed.[50]
[49] see submissions para 1 as compared to wage calculation note 1
[50] see for e.g. the discussion at paras 103-109 above
In respect of other claims regarding non payment of superannuation and failure to make appropriate taxation deductions the applicant’s submissions acknowledged that in relation to the former this depended on and were subject to his claim regarding there being a contract in terms of the DIAC documents or the second contract being upheld as were the issues regarding taxation.[51]
[51] see paras 59-60 of applicant’s submissions
In the circumstances given what is before me and for all the above reasons the applicant has failed to persuade the Court to the required standard that there has been an underpayment or other breach such as is necessary to make the orders he sought under the WR Act.
Other issues
Given the evidence that was led during the hearing the parties were directed to file submissions on what, if any, action the Court should take in relation to any other breaches of the WR Act.
The applicant’s submissions on these issues, were set out at paragraphs 118 to 122. Put simply the applicant asked the Court to refer to the respondent to DIAC for what were claimed to be breaches of undertakings. The applicant denied he had worked without a visa.
The applicant’s submissions did not address any other breaches such as that the respondent, for a least part of the applicant’s employment, was in breach of the requirements under the WR Act and the Workplace Relations Regulations 1996 in relation to payslips and time and wages records.
The respondent’s position on those issues were at paragraph 22 of the submissions filed 16 October 2009. They were:
“22.The Court has also requested submission on what should be done if in determining the issues in this case it finds that there are other breaches of the law. In that regard the Respondent submits: -
(a)The question of wage records and pay slips not meeting the legislative requirements was reported to the then Office of the Workplace Ombudsman which decided to take no further action other than educational action;
(b)Any alleged breaches of the Income Tax requirements have already been dealt with by the Respondent advising the ATO of the discrepancies in payments. The ATO has so far taken no action;
(c) The alleged failure to pay appropriate superannuation contributions on behalf of the Applicant is a matter for the appropriate authority, being the ATO and if it is a real claim should have been reported there by the Applicant. Mr Sim is still free to do so; and
(d)Any suspected breaches of the sponsors undertaking can be investigated by the appropriate Commonwealth Department. Such allegations were not canvassed by these proceedings.”
Given those submissions, and that the Court has been told that the Fair Work Ombudsman (in its previous incarnation) has investigated the respondent’s compliance with the WR Act and decided to take no further action and the other issues can all be pursued with other agencies independently of these proceedings, I do not intend to make orders referring the matter to those other bodies.
However, as these reasons make clear it is necessary to hear from the respondent on the issues raised by the applicant concerning the allegation of breach of contract and from the parties on any other necessary orders that should be made arising from these reasons.
Orders
For all the reasons set out above and save for the issues just referred to the amended application for orders pursuant to ss.720 and 722 of the WR Act should be dismissed.
There will otherwise be orders as set out at the beginning of these reasons.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Deputy Associate: Haylee Hobbs
Date: 5 November 2009
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