Thomas v Blakai Trust
[2022] FedCFamC2G 551
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thomas v Blakai Trust [2022] FedCFamC2G 551
File number(s): ADG 300 of 2020 Judgment of: JUDGE BROWN Date of judgment: 7 July 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – allegation of breach of general protection provisions – workplace right – adverse action – casual employee – allegation applicant has workplace right to be nominated to receive JobKeeper payments – allegation employee subject to adverse action because she was neither nominated nor informed employer had applied for JobKeeper – matters to be considered Legislation: Coronavirus Economic Response Package (Payment and Benefits) Rules 2020, ss 5, 6, 7, 9, 10A
Evidence Act (1995) ss 140, 144
Fair Work Act 2009 (Cth), Pts 3-1, 6-4C, ss 12, 323, 340, 341, 342, 536, 539, 546, 550, 789GDA
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Fox v Percy (2003) 214 CLR 118
Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1
Qantas Airways Limited v Flight Attendants’ Association of Australia [2020] FCAFC 227
Qantas Airways Ltd v ALAEA (2012) 202 FCR 244
Reed v Blue Line Cruises Limited (1996) 73 IR 420
Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27
Skene v Workpac Pty Ltd [2016] FCCA 3035
Division: Division 2 General Federal Law Number of paragraphs: 267 Date of last submission/s: 31 January 2022 Date of hearing: 6, 7 December 2021 & 31 January 2022 Place: Adelaide Counsel for the Applicant: Mr Hanna Solicitor for the Applicant: Wearing & Blair Pty Ltd Counsel for the Respondents: Mr Sallis Solicitor for the Respondents: RSA Law
Table of Corrections 7 July 2022 Date of Certification amended from 6 July 2022 to 7 July 2022. ORDERS
ADG 300 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KELLY THOMAS
Applicant
AND: THE TRUSTEE FOR THE BLAKAI TRUST
First Respondent
WARREN RANKINE
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
67 JULY 2022THE COURT DECLARES THAT:
1.The first respondent, the Trustee of the Blakai Trust and the second respondent, Warren Rankine have contravened the following provisions of Fair Work Act 2009 (Cth):
(a)Section 323(1)(c) by failing to pay the applicant, Kelly Thomas at least monthly; and
(b)Section 536 by failing to provide pay slips to the applicant, Kelly Thomas.
2.However, the Court declines to make any order that either the first or second respondent pay any pecuniary penalty in respect of the contravention referred to above.
THE COURT ORDERS THAT:
3.The application filed by the applicant on 4 September 2020 is hereby dismissed.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to a general protection application brought by Kelly Thomas (“Ms Thomas”) against her former employer, the Trustee of the Blakai Trust, pursuant to the provisions of the Fair Work Act 2009 (Cth).[1]
[1] Hereinafter referred to the FWA or the Act.
The Blakai Trust is essentially a family trust, which trades as a small business known as The Trademan. Its main line of business is installing carports, verandas, pergolas and similar outdoor extensions to residential premises and offices.
The business is operated by the second respondent, Warren Rankine (“Mr Rankine”). Mr Rankine began The Trademan in 2005. He is a builder by trade. Mr Rankine is a preferred installer for Stratco, a company which manufactures and supplies pre-fabricated sheds, roofing steel and like materials.
Individuals wishing to build a home extension may be referred to The Trademan by retailers of Stratco products or otherwise learn of its services through word of mouth or from other clients. Contact by potential clients of The Trademan is generally made by telephone or email. Mr Rankine is the only tradesperson employed by The Trademan and is, at times, hard-pressed to deal with customer enquiries.
In these circumstances, in 2008, Mr Rankine elected to open a small office located at 13 Brock Street, Port Adelaide. The main purpose of the office, from Mr Rankine’s perspective, was to provide a location where a part-time employee could field telephone enquiries, from potential customers, particularly on Mondays, who had been referred to him by Stratco suppliers.
In addition, he envisaged that such an employee would perform other administrative tasks, for The Trademan. These tasks included the compilation and maintenance of a database of its customers, for future reference, including as a means of mailing out advertising material pertaining to the business to them.
Ms Thomas and Mr Rankine have known each other since 1990. Ms Thomas has a background working in office administration. She was also elected as a counsellor of the Municipality of Charles Sturt in 2014, a position which she still holds. She also holds a number of voluntary positions, particularly as a board member of an organisation known as Nonna’s Cucina, a community service organisation, which provides meals to particularly elderly and frail members of the community in the western suburbs of Adelaide.
Ms Thomas began working in The Trademan’s office in March 2017, on a part-time basis. She was paid $28.86 per hour. She generally worked on Mondays, but her hours were flexible and largely subject to her discretion. She was also paid irregularly, although the parties disagree why this was so.
Ms Thomas asserting that this was not her preference; whilst Mr Rankine contends that Ms Thomas was content to wait until she had built up sufficient hours to ensure that she would receive a reasonable sum of money. As will become apparent in due course, Ms Thomas did not work long hours at The Trademan.
Ms Thomas last attended at The Trademan’s office on 10 March 2020, when she worked between the hours of 8:45 am and 10:45 am. On the following day, the World Health Organisation assessed that the level of infections, world-wide, relating to COVID-19, could be characterised as a pandemic. This announcement had ramifications in Australia, where the first instances of the disease had been reported in early 2020.
On 15 March 2020, the National Cabinet, instigated by the Commonwealth Government, met and, on the advice of the Australia Health Protection Principal Committee, determined to introduce social distancing measures, in Australia, relating to the size of public gatherings. On 19 March 2020, Australia closed its international borders.
I think I can take judicial notice of the fact[2] that, the period around mid-March of 2020, marked the start of the pandemic emergency within Australia and was a time of great community uncertainty, within the country generally, including in Adelaide and South Australia. It is in this period, that the current controversy, which the court must resolve, arose between the parties.
[2] See Evidence Act (1995) at section 144.
On 16 March 2020, Mr Rankine sent Ms Thomas a text message at approximately 7:09 am, which read as follows:
Kelly, you won’t need to come in today. I’m putting the office in isolation![3]
[3] See affidavit of Kelly Thomas filed 5 October 2021 at [17].
It is common ground between the parties that Ms Thomas has never returned to The Trademan’s office, although she retains keys to it and a swipe that allows access to its carpark. However, the reasons for her non-attendance and whether she has been in fact formally dismissed from her position, are highly controversial.
In his evidence, Mr Rankine alleges that he and Ms Thomas had another telephone conversation, concerning what was happening at The Trademan on 18 March 2020. In this conversation, Mr Rankine asserts that Ms Thomas told him that she had decided to stop working at the business. This was due to of her concerns about potentially becoming infected with the virus and passing it on to her son, who suffers from asthma or one of the elderly patrons of Nonna’s Cucina, an organisation in which she is closely involved, both in its management and the services it provides.
Ms Thomas vehemently denied that there was any element of her conversation, with Mr Rankine, on 18 March 2020, which could possibly be construed as amounting to a resignation on her part. As such, it is her position that she was indefinitely stood down, by Mr Rankine, from her longstanding casual position at The Trademan and this remains her status to the present time.
It is in this context that her claim for a breach of general protection obligations arises. Particularly in respect of her entitlement to have an application made on her behalf. Pursuant to the legislation introduced by the Commonwealth Government, in response to economic hardship in the Australian community, as a consequence of business disruption arising from the pandemic emergency.
This initiative is formally known as the Coronavirus Economic Response Package and more colloquially as JobKeeper.[4]In broad terms, JobKeeper was a program designed to support businesses adversely affected by the coronavirus emergency. It was a form of wage subsidy to be provided to employers of eligible businesses to enable such businesses and indeed their employees to stay afloat financially, during the period of the program.
[4] See Coronavirus Economic Response Package (Payment and Benefits) Act 2020 and the Coronavirus Economic Response Package (Payment and Benefits) Rules 2020 hereinafter referred to as the JobKeeper Legislation; the JobKeeper Scheme; the Scheme; or JobKeeper.
Access to the program depended firstly on an employer making application and being found to be eligible to take part in the Scheme and then secondly, on relevant employees also satisfying the eligibility criteria.
Prior to 10 March 2020, Ms Thomas recorded the dates and hours, on which she worked at The Trademan, in a timebook, which she would leave in a drawer, at the office. The book was later collected by Pat Harding (“Ms Harding”), a bookkeeper retained by Mr Rankine to maintain The Trademan’s accounts and general ledgers.
Ms Harding was employed by an organisation, which supplied bookkeepers to small business. As such, she was not formally employed by The Trademan. However, on the basis of her calculations, Mr Rankine would transfer the monies due to Ms Thomas, into her bank account, from time to time.
I have been provided with copies of both Ms Thomas’ timebook and her bank account. Neither party disputes that either document is anything other than a correct record of the hours worked by Ms Thomas and the amount she was paid.[5]
[5] See Exhibit KT 1 to affidavit of Kelly Thomas filed 5 October 2021.
Between 14 March 2017 and 10 March 2020, a period of approximately 155 weeks, Ms Thomas worked 127 weeks and was paid a total amount of $13,341.25 gross. She did not attend the office for 30 of those weeks, many of which occurred in the extended Christmas holiday periods. The relevant records indicate that she was working fewer hours over time.[6]
[6] See Exhibit F. On my calculations, in 2017 Ms Thomas worked 36 weeks and received $5,954.00 an average per week of $165.39; in 2018, she worked 37 weeks and received $3,687.50 an average of $99.60 per week; in 2019, she worked 46 weeks and received $3,267.75 an average of $71.04 per week; and in 2020 she worked 7 weeks and received $432.00 an average of $61.71 per week.
It is common ground between the parties that The Trademan was eligible, as an employer, to apply to the Commonwealth Government for Jobseeker payments for any of its employees, who had been laid off due to the pandemic.
Subsequently The Trademan was deemed to be an eligible employer by the relevant Commonwealth Department. It is Ms Thomas’ position that as she had been laid off by Mr Rankine, in his text message to her of 16 March 2020 but remained employed by him, she herself was eligible for the allowance.
As previously indicated, Ms Thomas herself could not apply directly to the relevant authorities for the JobKeeper payments to be paid directly to her. Pursuant to the relevant provisions of the Scheme, only her employer could make such an application. It is in this context that the current general protection proceedings arise.
In a letter dated 1 December 2021, counsel for Ms Thomas, Mr Hanna, wrote to Mr Sallis, counsel for The Trademan in the following terms:
[T]he applicant had a workplace right to be paid the full amount of $1,500.00 gross per fortnight, in the event that she (as an eligible employee in the JobKeeper scheme) was paid by the first respondent (as an eligible employer). In other words, if the first respondent was paying her pursuant to the Jobseeker scheme, she had a right to be paid without deduction…[7]
[7] See Exhibit A.
As I understand Ms Thomas’ case, as it has developed, she asserts that she had a workplace right, protected by the provisions of the FWA, to be formally notified by Mr Rankine that he was applying for JobKeeper, on behalf of The Trademan and further to be nominated, by him, as one of its eligible employees under the relevant rules and then to be paid accordingly.
That she was not so nominated by The Trademan constitutes adverse action to which Ms Thomas asserts she was subject to and which has resulting in her suffering economic loss, for which she is entitled to be compensated.
In general terms, Ms Thomas calculates that she, as an eligible employee, would have been entitled to receive the following sums:
·$1,500.00 per fortnight between 30 March 2020 and 27 September 2020;
·$750.00 per fortnight between 28 September 2020 and 3 January 2021; and
·$650.00 per fortnight between 4 January 2021 and 28 March 2021.
These amounts total $28,875.00.[8]
[8] See Claim filed 4 September 2020. The Claim erroneously refers to weeks.
The issue is further complicated by the fact that Ms Thomas does allege that Mr Rankine did, in fact, canvas with her the prospect of him invoking the JobKeeper Scheme, for The Trademan, but only on the basis that he and Ms Thomas would, in effect, split the payment between them.
It is Ms Thomas’ case that she took umbrage at what was suggested to her, which she regarded as being highly dishonest. Thereafter, she asserts Mr Rankine ignored her and her possible eligibility for JobKeeper, which constituted the relevant adverse action, because she, in effect complained about his illegal or unethical conduct.
As her employer, Ms Thomas alleges the adverse action against her was taken by The Trademan. However, she asserts that Mr Rankine was involved in the relevant contravention and thus bear accessorial liability for it pursuant to the provisions of section 550 of the FWA.
As previously indicated, it is Ms Thomas’ case that she was paid irregularly and did not receive pay slips. In these circumstances, she alleges that The Trademan has breached provisions of the National Employment Standards relating to the frequency of its payment to her of wages, which pursuant to section 323(1)(c) of the FWA is required to be at least monthly.
In addition, it is alleged that The Trademan failed to provide her with pay slips as required by section 536 of the Act. This provision requires that pay slips be provided within one working day of payment and that the pay slips concerned contain details of the hours worked and the basis on which pay is calculated.
Contraventions arising under both section 323 and 536 are characterised as civil remedy provisions and, if established, authorise the court to impose monetary penalties of up to $12,600.00 for individuals. Pursuant to the provisions of section 546(1) the power to impose such monetary penalties is discretionary as the court is able to impose whatever penalty it considers appropriate up to the maximums provided by the schedule to schedule contained in section 539(2).
In response, The Trademan asserts the JobKeeper Scheme did not apply to Ms Thomas because she was not an eligible employee under the relevant legislation, as she was not employed on a regular and systematic basis. More significantly, it is asserted that any employment Ms Thomas had with The Trademan ceased on 10 March 2020, which was prior to the inauguration of the JobKeeper Scheme and the last day on which she worked at The Trademan.
Further, it is Mr Rankine’s position that he merely discussed the possibility of Ms Thomas returning to work, at The Trademan, but on a different basis to what had hitherto occurred. It is his case that he had no concrete knowledge or understanding of what the JobKeeper Scheme entailed and, in this context, Ms Thomas has either wilfully or mistakenly misconceived what he said to her and thereafter neither has done anything to rectify the rupture in their relationship both as friends and work colleagues.
Essentially, as I understand The Trademan’s case, as it has developed, it is denied that Ms Thomas had any workplace right to be nominated as an eligible employee of it pursuant to the provisions of the JobKeeper Scheme.
In this context, it is common ground between Ms Thomas and Mr Rankine that they did indirectly communicate, to some degree, via the agency of Ms Harding. Regarding the situation at The Trademan during the height of the pandemic emergency and as the JobKeeper program was put into effect throughout Australia.
The Trademan disputes that Ms Thomas had any identifiable workplace rights under section 341 of the Act referrable to the JobKeeper Scheme. Accordingly, it contends that any assertion by Ms Thomas that she has suffered some form of adverse action, as defined by section 342 of the FWA, as a consequence of a breach of any legislative protection to which she was entitled under the Act, is entirely misconceived.
The Trademan does not deny that it failed to provide Ms Thomas with pay slips, as required by section 536 of the FWA. However, its position is that this omission was inadvertent, on its part, and caused no prejudice to Ms Thomas. Given the nature of her employment, Ms Thomas was able to nominate her own hours of work and thus was responsible for recording them, which she did in the time book. In this context, Mr Rankine points to the fact that Ms Thomas was content to go along with this process without demur and never, in fact, requested a pay slip.
The Trademan further characterises Ms Thomas’ claim that she was not paid, at least monthly, as being vague and uncertain in nature, as she is unable to specify the pay period when the omissions occurred. More significantly, Mr Rankine asserts that it was Ms Thomas’ preference that she be paid only when she was entitled to receive a relatively significant sum and, in this regard, she was effectively in control of the hours, which she worked.
As previously indicated, Ms Thomas seeks compensation, for the alleged breach of her workplace rights, in an amount of $28,875.00, which in theoretical terms is the maximum amount to which an eligible employee would have been entitled, pursuant to JobKeeper, between March 2020 and March 2021.
In this context, notwithstanding its denial of any liability under the Act, The Trademan asserts that Ms Thomas has failed to take reasonable steps to mitigate her loss by seeking alternative forms of employment in the relevant period or indeed by indicating a willingness to return to her position with it.
Subsequent evidence provided to the court indicates that Ms Thomas commenced work at a firm known as Penny Riggs Property Management in June of 2020.[9] A pay slip for the period 22 July 2020 to 4 August 2020 indicates she earned $766.26 gross and for the period 5 August 2020 to 19 August 2020 she earned $1,064.00 gross.[10]
[9] See Exhibit D.
[10] See Exhibit G.
In addition, it is Mr Sallis’ submission that the fact Ms Thomas sought employment with Ms Riggs indicates, by necessary implication, that she had no form of relevant employment relationship with The Trademan, after mid-April of 2020 and therefore her application regarding the applicability of the JobKeeper Scheme to her is misconceived.
THE JOBKEEPER LEGISLATION
The JobKeeper legislation was introduced as a response to a public health emergency, in Australia, which was unprecedented in recent memory. It was designed to be transitory in its operation and was originally subjected to repeal on 27 September 2020, which was later extended to 29 March 2021.
Given the context of its introduction, a national emergency, it was not the subject of extended and detailed debate within the community. It was announced by the Prime Minister, in a press release, on 30 March 2020. Accordingly, when introduced, the full implications of the pandemic emergency were being considered and assimilated by the Australian Community. It was a time of some uncertainty.
The relevant legislation was passed by the Australian Parliament and received Royal Assent on 9 April 2020. In the Explanatory Statement issued by the Federal Treasurer, the object of the JobKeeper Scheme was to:
[P]rovide financial support to entities to assist with the impact of the Coronavirus known as COVID-19. In particular, the Act establishes a framework for the Treasurer to make rules about one or more kinds of payment to an entity in respect of a prescribed period.
In particular:
A business that is entitled to the JobKeeper payment will receive a fixed payment of $1,500.00 per eligible employee. The payment must have already been passed on to the eligible employee in full. The payment provides the equivalent of approximately 70% of the national median wage. In addition a business may be entitled to the JobKeeper payment for the business owner or a nominated owner regardless of whether the business has eligible employees.[11]
[11] Explanatory Statement, Coronavirus Economic Response Package (Payments and Benefits) Act 2020.
The Scheme was administered by the Australian Tax Office (“ATO”). The relevant legislation provided criteria which both an employer (referred to an entity by the legislation)[12] and an employee were required to satisfy before being eligible to participate in the Scheme and for the Treasury to release the relevant payment, which was calculated fortnightly.
[12] It can include a trust, as in the present matter.
JobKeeper fortnights commenced with Monday 30 March 2020.[13] Sections 6 & 7 of the JobKeeper Rules provided the conditions to be satisfied by any entity to be able to receive payments for an individual under the Scheme. Such an employer had to:
·be carrying on business in Australia as at 1 March 2020; and
·establish that its business had suffered a decline in turnover.
For the purpose of these proceedings, it is not necessary to discuss the decline in turnover test, which is set out in the Rules. It is clear that The Trademan satisfied both such criteria. Section 6 provides that it is the employer entity which has the formal entitlement to receive the payments. In order to be eligible, pursuant to section 6(1)(e), such an employer is required to notify the Taxation Commissioner that it elects to participate in the jobkeeper scheme.
[13] See Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 at section 6(5)A.
Section 9 of the JobKeeper Rules defined employees who were eligible to take part in the Scheme. As at 1 March 2020, they had to be over 16 years of age; an Australian resident; and an employee of an entity or a long term casual employee of such entity during any applicable JobKeeper fortnight.
The expression long term casual employee is defined in section 9(5) of the Rules and means an individual who has been employed by the relevant entity on a regular and systematic basis during the period of twelve months prior to the relevant JobKeeper fortnight. As indicated above, it the Trademan’s contention that Ms Thomas was not so employed by it in the twelve months prior to 1 March 2020.
Thereafter, eligible employees are required to confirm their eligibility to take part in the Scheme and provide a nomination notice to the relevant entity employing them which indicates their willingness to be included in the JobKeeper program and the fact that the relevant employee is not also an employee (other than a casual employee) of another entity.
The relevant Explanatory Statement indicates the Government’s intention that JobKeeper is a wage subsidy, which is directed to provide assistance to enable employers to continue paying their employees during the period of downturn anticipated by the pandemic emergency. As such, eligible employees are required to satisfy two sets of criteria – employment on 1 March 2020 and during each relevant JobKeeper fortnight.[14]
[14] See Explanatory Statement, Coronavirus Economic Response Package (Payments and Benefits) Act 2020 at page 13.
The onus is on employee to prove that he or she is an eligible employee, which is done by such an employee completing a nomination form. The nomination process is required to cover situations in which a person has multiple employers or elects to be employed by a fresh entity. In this context, the relevant Explanatory Statement read as follows:
The requirement in paragraph 9(1)(a) of the Rules that a person was an employee of the employer during a fortnight is satisfied if the person was employed at any time during that fortnight. In other words, the person does not need to be employed for the full fortnight.
This ensures that an employer is eligible to receive JobKeeper payments for a fortnight in respect of an employee who has been rehired or terminated at a point during the fortnight, provided the other eligibility and entitlement requirements are satisfied.
The nomination requirement in subsection 9(3) of the Rules requires an employee to provide a notice in the approved form to their employer agreeing to be nominated by the employer for the purpose of the JobKeeper scheme. The employee must also specify in the notice that they have agreed to be so nominated by any other employer or business. The purpose of this nomination is to assist employers to determine whether they may be entitled to JobKeeper payment in respect of the employee for a particular fortnight.
A person who is employed by one or more qualifying employers will need to choose one employer that will receive the JobKeeper payments for their employment.
Once an employee has nominated an employer and the employer has received JobKeeper payments in respect of the employee and has paid the employee, they cannot nominate a different employer. If, for any reason, the employment relationship between an eligible employee and their nominated employer ends, the employee will not be able to have another employer qualify for the JobKeeper payments in respect of their new employment.[15]
[15] See Explanatory Statement, Coronavirus Economic Response Package (Payments and Benefits) Act 2020 at page 15.
These statements are apposite to the situation in the present matter for the following reasons. Firstly, there is an obligation imposed on employees to provide a nomination as to their willingness to be included in their employers’ application for JobKeeper and that they have not provided a nomination to another employer.
This is because an individual may have more than one employer and the Scheme is not intended, for obvious reasons, to authorise multiple payments of JobKeeper. In this case, Ms Thomas had more than one source of income as at 1 March 2020, albeit she was not formally employed as a councillor.
In this context, the Explanatory Statement provides as follows:
The requirement that casual employees cannot nominate with an employer if they were permanently employed by another employer at the time of nomination, ensures that an individual who is employed on a permanent basis (either full time or part time with an employer) must nominate that their full time or part time employer under the scheme. This reflects that such employers are likely to be the individual’s ‘primary’ employer, and prevents an individual nominating a secondary, casual employment position if their primary is unaffected.[16]
[16] See Explanatory Statement, Coronavirus Economic Response Package (Payments and Benefits) Act 2020 at page 12.
In this particular case, it cannot be assumed that Mr Rankine personally was aware that Ms Thomas regarded The Trademan as her primary employer or whether he did or did not know that she had other sources of income at relevant times. This was the rationale for employee having to agree to be included in one specific application for JobKeeper. It was a measure to deter fraud or multiple claims, as much as anything.
Secondly, an individual’s entitlement for JobKeeper ceased on him or her becoming employed by another employer. Thereafter, if this subsequent employment ceased for whatever reason, such employee’s recourse for income support was to another Commonwealth benefit, such as JobSeeker, rather than to be re-nominated by the previous employer for JobKeeper.
This is relevant given the fact of Ms Thomas’ employment with Penny Riggs Property Management from 23 June 2020 onwards. In my view, it undermines her claim to be entitled to be paid an amount equal to the maximum possible amount of JobKeeper by the respondents in this case, for the entire period of the Scheme.
The Explanatory Statement indicated what was anticipated to occur once an employer had agreed to take part in the Scheme and their eligible employees had agreed to be nominated by their employer. It said as follows:
Once an employer decides to participate in the JobKeeper scheme and their eligible employees have agreed to be nominated by the employer, the employer must ensure that all of these eligible employees are covered by their participation in the scheme. This includes all eligible employees who are undertaking work for the employer or have been stood down. The employer cannot select which eligible employees will participate in the scheme. This ‘one in, all in’ rule is a key feature of the scheme.[17]
[17] See Explanatory Statement, Coronavirus Economic Response Package (Payments and Benefits) Act 2020 at page 5.
The Trademan contends that Ms Thomas never indicated her agreement to be nominated to be included in the Scheme in that she never returned any nomination form to The Trademan. The purpose of the Scheme being expressed as being intended to assist businesses affected by the Coronavirus to cover the costs of wages of their employees.[18] In this context, it is the submission of Mr Sallis that the Scheme did not create any direct entitlement for an employee to receive payment of any amount.
[18] See Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 at section 5.
Rather the entitlement pertained to qualified entities, who were obliged to hand on the full rate to each eligible employee. This distinction is significant, in Mr Sallis’ contention when the applicable general protection provisions of the FWA are considered, particularly in the context of any workplace right attributable to Ms Thomas asserted to have been contravened by The Trademan.
In effect, it being submitted that Ms Thomas had no such right arising under the Scheme and never qualified to take part in it because she had not satisfied the necessary preconditions to be included in it, as an eligible employee. In particular she had not formally indicating her willingness to take part in the Scheme and was not employed by The Trademan when Mr Rankine applied for JobKeeper.
This is not an end to the complexity surrounding the relevant legislation, which had two distinct iterations relevant to the period in contention between the parties. On 1 May 2020, section 10A, which is headed Requirement to give employees notice of election to participate, was inserted.
If section 6(1)(e) of the Rules is engaged, which arises when an eligible employer has advised the Commissioner of Taxation of its intention to take part in the JobKeeper Scheme, in respect of an applicable JobKeeper fortnight. Pursuant to section 10A, such an employer is required to inform each relevant employee of such election within seven days and provide the individual concerned with a nomination notice.
Section 10A(3) reads as follows:
(3) An individual is a relevant employee of an entity if the individual is an employee of the entity on the day the entity notifies the Commissioner of the entity’s election to participate.
As will be shown in greater detail, in due course, the date on which The Trademan notified the Commissioner of its election to take part in the Scheme was 29 April 2020, some two days prior to the insertion of section 10A into the relevant legislative framework.
However, section 10A(4) provides as follows:
(4) However, an individual is not a relevant employee of an entity if the entity reasonably believes that the individual does not satisfy the requirements in section 9(2).
As previously indicated, section 9(2) deals with the criteria, as of 1 March 2020, required to be satisfied by an employee to be eligible to participate in the JobKeeper Scheme. It would seem thus that the date on which the entity must hold the prerequisite reasonable belief, as to employment, is 1 March 2020. In contrast, an individual must also be a relevant employee on the date on which the employer elects to participate.
As I understand Mr Sallis’ submission, he contends that Ms Thomas was clearly not employed by The Trademan, as at 29 April 2020 and therefore Mr Rankine was under no legal obligation to inform Ms Thomas of its application for JobKeeper, even if section 10A(1) can be held to have retrospective application.
In addition, he contends that his client, by necessary implication, had a reasonable belief that Ms Thomas was not a relevant employee of The Trademan due to the lack of regularity and system in its casual employment of her in the year ending on 1 March 2020 and certainly was not so when The Trademan applied for JobKeeper. In this context, it is significant that no questions were asked, during the course of the hearing, as I recall, regarding what was either Mr Rankine or Ms Thomas’ personal understanding of their employment relationship as at 1 March 2020.
There is no controversy between the parties concerned that if an entity is approved to take part in the Scheme, at relevant times, it was entitled to receive a sum of $1,500.00 per fortnight (later reduced to $1,200.00 and then $1,000.00 per fortnight) for each eligible employee, which had to be passed on in full to the employee concerned, regardless of past rates of pay.
This arises because of provisions (since repealed) in the FWA (Part 6-4C – Coronavirus economic response), which formed part of the JobKeeper Scheme. The object of the Part being to enable temporary changes to workplaces to assist Australian people to keep their jobs.
These provisions provided employers with the authority to stand down employees, during the pandemic period, if certain conditions were met. In broad terms, the legislation guaranteed that no employee could receive less than the full amount provided for by the JobKeeper Scheme. This was entitled the minimum payment guarantee [see section 789GDA].
The Full Court discussed these provisions in Qantas Airways Limited v Flight Attendants’ Association of Australia[19] where Jagot and Wheelahan JJ indicated as follows in respect of the implications of the Scheme overall:
The JobKeeper Scheme as a whole provides a wage subsidy to employers. In one sense, this is a necessary “windfall” for an employer as their wages bill will be subsidised either in whole or in part by the scheme. A condition of the scheme is that the employer must pay the wage subsidy (at least) to the employee whether or not the employee has performed work for the employer. This is a form of “windfall” to the employee. By this means, the scheme achieves its object, as set out in the second reading speech, of supporting employers to maintain their employment connection to employees so that they can reactivate their operations quickly, and without having to rehire staff, once the Coronavirus crisis is over. That different fact combinations give rise to different extents of so-called “windfalls” depending on the construction adopted is not a reason to prefer one construction over another. On all three constructions, the employer will always receive the jobkeeper payment and the employee will always receive that amount per fortnight – that is the object of the scheme and it is achieved on any construction. Parliament must be taken to have accepted that there will be apparent anomalies in the operation of the scheme, particularly given that the jobkeeper payment is an arbitrary amount, unconnected to any amount that is otherwise payable to any particular employee.
[19] Qantas Airways Limited v Flight Attendants’ Association of Australia [2020] FCAFC 227 at [78].
As I understand Mr Hanna’s submission, he contends that Ms Thomas was stood down by Mr Rankine by means of his text message of 16 March 2020 and is therefore entitled to be protected by the provisions of Part 6-4C of the FWA and was entitled to receive the relevant JobKeeper payments for each fortnight the Scheme was in effect.
It is further Ms Thomas’ case that she had a workplace right to be informed by Mr Rankine that The Trademan was applying for JobKeeper and thereafter to be nominated as an eligible employee of it pursuant to the provisions of section 10A(1).
Accordingly, it is the import of her case that, notwithstanding any rift between the parties, she had an entitlement to be consulted about what The Trademan intended to do about JobKeeper so that she could provide any required nomination that she wished to be included as a recipient of it.
LEGISLATIVE PROVISIONS
Part 3-1 of the FWA is headed General Protections. Pursuant to section 340(1) a person must not take “adverse action” against another person because that other person has a workplace right.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The table provides as follows:
Meaning of adverse action
Item Column 1
Adverse action is taken by …Column 2 if … 1 an employer against and employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer
It is Mr Sallis’ submission that there is no evidence to support Ms Thomas’ contention that she was subject to any form of adverse action. Given what he would characterise as the infrequency and irregularity of her employment at The Trademan. Mr Sallis disputes Ms Thomas was ever dismissed from employment nor the subject of specific injury or prejudicial alteration to her employment, with The Trademan, such as it was, after 10 March 2020, the last day on which she provided any services to it.
In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors[20] the High Court discussed the contrasting expressions of injury and alteration of the employment of an employee in his or her employment and concluded that the former covered injury of any compensable kind whereas the latter expression encompassed:
…a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
[20] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1 at page 18.
In Qantas Airways Ltd v ALAEA[21] The Full Court held that:
[A] prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.
[21] Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at 250 [32].
Accordingly, it is Mr Sallis’ submission that, when the JobKeeper regime commenced, with the first relevant fortnight being that of 30 March 2020, Ms Thomas had no form of employment with The Trademan, which could suffer injury in the sense that it would be compensable or capable of being altered in any real or substantial way.
It seems axiomatic that this is not a case involving any discrimination in the workplace. The essence of such discrimination being that there is some form of differentiation between two individuals by reference to a proscribed factor or factors, such as gender, race, political opinion and so on and so forth. There is no suggestion that Ms Thomas suffered any outcome, vis-à-vis her employment with The Trademan, which was less favourable than another individual as a consequence of any such factor.[22]
[22] See Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 at 31 [158]-[160].
Section 341(1) of the FWA provides the definition of workplace right. A person has such a right if the person:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
The expression workplace law is defined within section 12 of the Act. It includes any law of a state or territory that regulates the relationship between employers and employees, including dealings in respect of occupational health and safety matters. It includes the Fair Work Act itself.
It is the submission of Mr Sallis that the provisions of the JobKeeper Scheme cannot amount to a workplace right as defined in section 341. He submits that the Scheme conferred rights on employers to maintain their businesses and retain staff during the Coronavirus emergency. Ms Thomas had no personal entitlement to make an application for JobKeeper payments and The Trademan was not subject to any obligation to make any such application itself.
In these circumstances, in his written submissions, Mr Sallis submits as follows:
Even if the most generous interpretation of the workplace right provision is undertaken, the Applicant has no enforceable right pursuant to the legislation unless they are an eligible employee and a Nomination is received and the employer is determined to be eligible for the scheme.[23]
[23] See Respondents’ Outline of Submissions filed 29 November 2021 at [20].
As a consequence of the use of the word because in section 340 there must be a causal link between the taking of the relevant adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right.
Accordingly, in order to establish that she has suffered a contravention of a general protection provision under section 340 of the FWA, Ms Thomas must establish:
·What is her workplace right;
·What is the adverse action to which she has been subject; and
·What is the connection between the workplace right and the adverse action.
LEGAL PRINCIPLES RELATING TO THE EVIDENCE
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[24] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[25]
[24] See Evidence Act (1995) (Cth) at section 140.
[25] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ.
The relevant standard of proof is the balance of probabilities. In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
In Hadgkiss v Sunland Constructions Pty Ltd & Ors[26] Kiefel J (as her Honour was previously) summarised the considerations relevant to establishing facts, on the balance of probabilities, in civil proceedings, particularly those involved in civil penalty proceedings. Her Honour indicated as follows:
·The strength of the evidence necessary to establish a fact or facts, on the balance of probabilities, may vary according to the nature of what it is sought to be proved;
·The conventional perception is that people do not ordinarily engage in conduct prescribed by legislation and, as such, a court should not lightly make a finding to this effect, in civil litigation.[27]
[26] Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193 at 195 [11]
[27] See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
In my assessment, all of the witnesses who gave evidence in the proceedings were motivated to be truthful and provide an account of their interactions with one another which corresponded with their personal recollection of what happened. However, for all sorts of reasons, including the general emotional discombobulation, which the early uncertain period for the pandemic precipitated in the community generally, those recollections are flawed, in my view.
In these circumstances, each of the parties, but particularly Ms Thomas, has been inclined to misconstrue what the other has said in their heated and emotional conversations with each other and their terse and spontaneously composed text messages. As such, each has reconstructed, to some extend what happened, to buttress their recollection of it.
As a consequence, it is my finding that more often than not, in the difficult period, which is at the centre of this adjudication, Ms Thomas and Mr Rankine was at complete and utter cross purposes with one another, which led to each of them fundamentally misconstruing what the other’s position was.
Because of their mutually held umbrage for one another, neither of them was capable of hitting the metaphorical reset button. In order to clear the air between them and resolve their misunderstanding of one another, or to enable them to agree on a common approach in respect of how The Trademan would operate during the pandemic emergency and what their respective roles would be in this and, indeed, what would be the role of government support. Rather, during the period in question, each festered in his/her dissatisfaction with the other.
In this difficult situation, with the parties unwilling and unable to communicate with one another, Ms Thomas attempted to recruit Ms Harding as an intermediary, a role Ms Harding was disinclined to take up.
BACKGROUND
There are many evidentiary disputes between the parties, which start with the nature of their relationship – were they friends or merely acquaintances? But particularly what was said between them (and what was their respective understanding of that) when information about the possible severity and implications of the pandemic began to percolate through the Australian community in early to mid-March of 2020.
As I have previously observed, this was a time of acute uncertainty and anxiety for many in the community. It is Mr Rankine’s evidence that Ms Thomas resigned from The Trademan on 18 March 2020 because of concerns that she might contract Covid-19 at work or unwittingly infect her son or vulnerable clients of Nonna’s Cucina. Ms Thomas, in contrast, refutes these assertions. It is her case that it was Mr Rankine, rather than she, who hysterically over-reacted in the early days of the emergency.
A further major evidentiary controversy, in the case, relates to telephone conversations between Ms Thomas and Mr Rankine, which occurred on 15 April 2020 and related text messages, which provide some form of written record of their verbal exchanges. The parties vehemently disagree about what occurred in those conversations and their overall import in terms of their on-going relationship as employer and employee.
In the course of this conversation, Ms Thomas asserts that Mr Rankine indicated to her that The Trademan was eligible for JobKeeper and so Ms Thomas, as its employee, would be covered by its provisions. However, she alleges that Mr Rankine further proposed to her that, as the amount provided by JobKeeper was $1,500.00 per fortnight and she (Ms Thomas) did not usual earn such a sum, he would split the relevant payment with her so she received $200.00 to $300.00 per week of it and he retained the balance.
It is Ms Thomas’ case that she was disgusted by this proposal, which she assessed to be both fraudulent and illegal and made it clear to Mr Rankine that she would have nothing to do with it. It is further her case that she personally had knowledge of how the JobKeeper program was intended to operate as a consequence of her membership of the board of Nonna’s Cucina.
Nonna’s Cucina, at the time of the onset of the pandemic emergency, apparently employed many casual employees in its kitchen, who had previously worked short hours which had recouped them far less than $750.00 per week in wages. Yet, from briefings she had received from the accountants of Nonna’s Cucina, Ms Thomas was aware that this did not affect the entitlement of such employees to receive the full amount of JobKeeper, attributable to employees eligible under the Scheme, without any interference from the employer.
As has been outlined above, Ms Thomas’ understanding of the Scheme was undoubtedly correct – an employee eligible to receive JobKeeper is entitled to receive the full fortnightly allowance, regardless of his or her level of weekly remuneration in the period prior to the pandemic emergency.
Mr Rankine acknowledges that there was an extensive telephone conversation between him and Ms Thomas on 15 April 2020. He is not in a position to dispute the existence of the call given the references to it in subsequent text messages passing between him and Ms Thomas.
However, he significantly disputes the effect of the conversation and, certainly from his perspective, what was his intent and his level of personal understanding, at the time, of the JobKeeper Scheme as it pertained to The Trademan.
In this context, he disputes that he knowingly advanced any proposition to Ms Thomas, which he knew to be illegal. Rather, he asserts that he did not understand the implications of the JobKeeper Scheme, at the time he made contact with Ms Thomas but rather was trying to be helpful to her and her family.
In respect of the 15 April 2020 conversation, Mr Rankine deposes as follows:
Kelly’s version of what was between us in her affidavit is not correct. She either misheard or has misstated our discussion. I certainly did not say she was eligible. I did not know whether she would be, or whether The Trademan would be at the time and she did not agree to return to work nor had The Trademan paid her.[28]
[28] See affidavit of Warren Rankine filed 10 November 2021 at [90].
What both parties agree is that the discussion between them on 15 April 2020 and the subsequent text messages between them were extremely heated in nature and thereafter they have had only limited contract with one another, which has arisen because Mr Rankine had tendered to supply a veranda at Nonna’s Cucina.
Ms Thomas agrees that she personally did not raise the issue of her personal eligibility to receive JobKeeper, as a consequence of any employment relationship she had with The Trademan, with Mr Rankine directly after 15 April 2020. She did however approach Ms Harding, via text message to inquire of her what Mr Rankine had done regarding JobKeeper.
On 29 April 2020 Mr Rankine submitted an application for JobKeeper on behalf of The Trademan. It named one employee on behalf of whom the allowance was sought, namely Mr Rankine himself.
Thereafter, the parties exchanged a number of vitriolic communications, which resulted in each of them concluding that, whatever had been the previous nature of their relationship together, it was not irrevocably over and a state of mutual enmity existed between them. It was in this context that Ms Thomas commenced the proceedings on 4 September 2020.
ISSUES
It seems to me that the following are the major issues which require the court’s determination in both an evidentiary and legal sense:
·What was the nature of Ms Thomas’ employment at The Trademan prior to 10 March 2020;
·Was Ms Thomas stood down from her position or did she resign from her position, at The Trademan on 18 March 2020;
·What is her current status vis-à-vis her employment, at the present time and what was it in mid-April 2020 and on the date The Trademan applied for JobKeeper;
·What was the legal effect, if any, of the conversations and correspondence between Ms Thomas and Mr Rankine on 15 April 2020; add
·In this context, what were the legal obligations, if any, of The Trademan, vis-à-vis Ms Thomas and the JobKeeper Scheme?
In the light of how these issues are resolved, the court must identify whether Ms Thomas has a workplace right, as defined by the FWA and, if so, whether she has been subject to an incident of adverse action, falling within any of the categories listed in section 342(1).
THE NATURE OF MS THOMAS’ EMPLOYMENT
It is not, in my view, necessary for the court to make any extensive findings about the nature of the parties’ relationship with one another other than they were well acquainted in 2017, having engaged together in community/municipal activities and family camping trips.
In this setting, the prospect of Ms Thomas coming to work for The Trademan, in 2017, was mutually advantageous for each of them. My impression is that Ms Thomas led a busy life, balancing her family commitments with her responsibilities as a municipal councillor, for which she received an allowance of $30,000.00 per annum. It suited her to have a position which was relatively flexible in its demands, with a person she knew reasonably well, so that she had some autonomy in what she did.
From Mr Rankine’s perspective, he needed someone to fill a gap in his business, who could primarily field some customer inquiries referred from Stratco suppliers, after the weekend and deal with other email and telephone calls to the business. He also aspired to having a data base completed of all of The Trademan’s clients, so that he could easily email them advertising material and remind them of his services. It is a source of chagrin that this data base was never completed by Ms Thomas.
It suited him that these services were to be provided by someone whom he knew and trusted, who could come and go, at his office, subject to any other demands on her time, without any need for supervision or oversight. It seems to me that this level of informality suited and appealed to them both.
In particular, Mr Rankine did not wish to enter into an onerous employer/employee relationship. Given their level of previous relationship, both parties wanted to maintain a level of informality and flexibility in respect of what occurred in their employment setting, which was based on some shared degree of familiarity and trust.
Mr Rankine was the guiding hand of The Trademan. He was the only Trademan it employed to do installation work and he provided all necessary quotes for work. When Mr Rankine was away, there was very little for Ms Thomas to do. It is significant that Ms Thomas has deposed that her perception was that Mr Rankine trusted her to work the necessary numbers of hours required to get done what had to be done.
I accept Mr Rankine’s evidence that he relied on Ms Thomas to determine the fair level of pay for the services, which she provided to him. He relied on her previous experience of administrative work in this regard and, in this context, she nominated the Clerks’ Award as providing an appropriate basis for her remuneration.
The basis of the parties’ employment relationship was Ms Thomas’ timebook. Ms Thomas kept a record of the hours she worked each week in the timebook; noted the wages due to her; calculated what tax was due; and then signed the weekly record, which she left in a desk drawer. I accept Ms Harding’s evidence that Ms Thomas calculated the tax due.[29] Ms Thomas does not disagree.[30]
[29] See Transcript at page 74
[30] Transcript at page 17
It was also Ms Harding’s evidence that she did not herself attend to the actual payment of Ms Thomas. This was done personally by Mr Rankine, who had reference to the timebook, from time to time and made the required payments electronically. It is Ms Harding’s evidence that Mr Rankine would endorse the book with a stamp noting his payment of the wage. Thereafter, it was Ms Harding’s responsibility to keep an accounting record of the payment and reconcile it with the relevant bank statement, when it arrived.
The parties agree that payment was irregular in nature. Mr Rankine asserts that he was not aware that this was a problem from Ms Thomas’ point of view until she raised it in these proceedings. He has deposed that Ms Thomas specifically requested that she not be paid in small amounts but preferred for her wages to accrue to sums of several hundred dollars.
As previously indicated, my analysis of the Ms Thomas’ timebook is that, over the course of time, she was working less and less hours per week. In the fifty two weeks prior to 10 March 2020, Ms Thomas worked approximately 45 of the weeks and earnt over a $100.00 on five occasions. Her lowest wage was $27.00 on twelve occasions and her highest $210.00 on one occasion. The average amount for this period was about $64.00; the total for the year just under $3,000.00.
In these circumstances, Mr Rankine’s evidence rings true to me. In addition, if Ms Thomas had wished to be paid more regularly, in my assessment, she would have demanded it of Mr Rankine. In my assessment, Ms Thomas is not to be described as a shrinking violet in turns of pursing what she believes she is entitled.
In my finding, the manner in which Mr Rankine elected to pay Ms Thomas suited them both and was the product of their mutual agreement. Which flowed from the extremely informal nature of what was expected of Ms Thomas in the completion her hours of work at The Trademan, which was largely subject to Ms Thomas’ idiosyncratic preference.
The pattern of the work is that it took place mostly on Mondays but also on occasions on Tuesdays. Ms Thomas worked in the morning for a minimum period of one hour and a maximum period of seven hours, but mostly between two and three hours. I have been provided with limited evidence as to how Ms Thomas decided whether she would come into the office and how long she would elect to stay. It does not seem to be the case that Mr Rankine left her specific tasks to do.
As previously indicated, the JobKeeper Scheme applied to long term casual employees, who had been employed on a regular and systematic basis during the period of twelve months prior to the relevant JobKeeper fortnight. Long term is not a complex expression. It means relating to a long period of time. In the context, of this matter, I agree that the employment relationship between Mr Rankine and Ms Thomas, extended as it did, over a period of approximately three years, can be properly described as being long term in its nature.
A more difficult issue is whether she can be characterised as a casual employee, employed on a regular and systematic basis. Regular is defined as meaning conforming to a rule or principle; systematic; acting or done or recurring uniformly or calculably in time or manner.[31] The expression systematic is defined as meaning methodical; done or conceived according to a plan or system.
[31] Australian Oxford Dictionary.
Mr Sallis contends that the last twelve months of Ms Thomas’ employment, occurring as it did for irregular periods of time cannot be described as being either regular or systematic in that how the hours worked by her fall is random, subject to her election, and are thus incapable of prediction. He has analysed this period (over fifty five weeks) as follows:
Number of Weeks Worked
Hours Worked
9 weeks
0
13 weeks
1.0
3 weeks
1.5
1 week
1.75
8 weeks
2.0
2 weeks
2.25
2 weeks
2.5
3 weeks
2.75
6 weeks
3.0
2 weeks
3.5
1 week
4.0
1 week
4.25
2 weeks
5.0
1 week
5.5
1 week
7.0
In his submission, Ms Thomas did not work to any fixed hourly pattern in any given week and had varied days of work and start and finish time.[32] However, informality and flexibility are the traditional hallmarks of what is characterised as casual employment. It is clearly the case that Ms Thomas’ hours of work were trending down in the last twelve months of her employment with The Trademan.
[32] See Respondent’s Outline of Submissions filed 29 November 2021 at page 2.
In Skene v Workpac Pty Ltd[33] Judge Jarrett considered that whether a person was or was not a casual employee was a question of fact. In Reed v Blue Line Cruises Limited[34] Moore J indicated as follows in respect of the nature of casual employment:
What then, is likely to have been the feature of the employment at the time of the engagement that would characterise it as an engagement on a casual basis? Plainly it involves a notion of informality or flexibility in the employment following the engagement…
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.
[33] Skene v Workpac Pty Ltd [2016] FCCA 3035 at [69].
[34] Reed v Blue Line Cruises Limited (1996) 73 IR 420 at page 425.
In the relevant Explanatory Statement to JobKeeper Scheme, issued by The Treasurer on 9 April 2020, the following explanation of long term casual employee appears:
A casual employee is likely to be employed on a regular and systematic basis where the employee has a recurring work schedule or a reasonable expectation of ongoing work.[35]
[35] Explanatory Statement, Coronavirus Economic Response Package (Payments and Benefits) Act 2020 at page 14.
In this case, it was Ms Thomas rather than Mr Rankine who elected when she would work other than there was a pattern that it was more often than not on a Monday and then a Tuesday, which recognised Mr Rankine’s need for Stratco referrals to be followed up. Other than that, it seem to me that Ms Thomas’ work lack both regularity and system to a large degree. Certainly, there was a high degree of informality and irregularity about it.
It is not the function of the court to determine whether Ms Thomas was employed casually with the prerequisite degree of system and regularity for the purposes of the JobKeeper Scheme. If she had been nominated by The Trademan for JobKeeper, it would have been the function of the Commissioner of Taxation to make this assessment on the basis of the data submitted to it. However, it is my view that she did not satisfy the criteria specified in the applicable rules. There is no predictability evident in respect of the number of hours she worked each week.
16 March in 2020 was a Monday. This was the day of Mr Rankine’s text message regarding the closure of the office. The fact that he elected to inform Ms Thomas of this at 7:09 am indicates some expectation, on his part, that he was expecting Ms Thomas to attend at the office on this day and this would, but for the pandemic emergency, have been a normal and predictable occurrence. Certainly, this is the effect of Ms Thomas’ evidence, which was that she was showering in preparation for leaving for work, when the message came through.
WHAT HAPPENED ON 18 MARCH 2020
I accept Mr Rankine’s evidence that he was very concerned about the situation, as it started to unfold in mid-March. I accept his evidence that his decision to close the office on 16 March 2020 was a hasty one, which was not subject to any great degree of deliberation but was largely influenced by the uncertainty which then prevailed. In respect to a text message question from Ms Thomas, as to whether he was isolating, he indicated that he was staying away from anything that had a pulse and was considering pulling his children out of school.
Ms Thomas was more moderated in her responses, indicating that it was going to be really mild given she and her family were all fit and healthy. She expressed some concern for one of her children who suffered from asthma but otherwise indicates we will all be fine.[36] It is her evidence that she thought Mr Rankine was over reacting by closing the office and she was annoyed that she could not come in as she had planned.
[36] See Exhibit KT 3 to affidavit of Kelly Thomas filed 5 October 2021.
As such, there is nothing in the text message correspondence, passing between the parties on 16 to 18 March 2020 to indicate that Ms Thomas had decided to cease working for The Trademan because of her concerns for either one of her children or because she might expose the clients at Nonna’s Cucina to the virus. This is at odds with Mr Rankine’s evidence that he believed Ms Thomas had told him that she was not returning to work.
It would be extraordinary if the parties had not discussed the pandemic in their telephone conversation of 18 March given that it was the topic to the forefront of the vast majority, if not all adults at the time. It seems to me to be more likely than not the parties did not have any concluded discussions as to what was going to happen at The Trademan and both were inclined to see what happened.
If there was any formal discussion about the issue of Ms Thomas’ status, as Mr Rankine alleges, given the general heightened emotional atmosphere of the period, arising from the high level of uncertainty about what was going to happen. It is, in my view, highly likely that the parties misconstrued what the other said about his/her future intentions. It was a febrile time. Certainly, Mr Rankine did not provide any obligation that he was under any obligation to provide any form of work to Ms Thomas.
From Ms Thomas’ point of view, it seems improbable, given her level of earnings over the preceding weeks and months that she was likely to have been greatly concerned about returning or not returning to work at The Trademan from a financial point of view. From Mr Rankine’s point of view, his work situation was uncertain and he had no pressing need for Ms Thomas’ services.
Indeed my impression of his evidence was that he was somewhat displeased that no progress had been made by Ms Thomas in completing the data base of customers, which was his raison d’être for employing her in the first place. Certainly there is no evidence that Ms Thomas agitated to return to work or volunteered her services.
It is Mr Rankine’s position that The Trademan remained open for business and continued to take inquiries from customers, though he personally, due to his concerns about the pandemic did, not go to into the homes of customers. From his perspective, the government and health situation regarding Covid-19 was changing regularly and swiftly. This is consistent with his oral evidence that he regarded the office as still, at least, officially open, although no one was regularly attending, as Ms Harding was working remotely from Tasmania at the time.
In addition, Ms Thomas’ main focus, at the time, seems to have been on her work at Nonna’s Cucina, which necessarily was time consuming and challenging given the nature of the services it provided to elderly people and the obvious concerns about their vulnerability. Clearly, the onset of the pandemic did not leave Ms Thomas bereft of financial support and it appears against the weight of the evidence that she was reliant on her modest and irregular salary from The Trademan to provide for herself and her family.
Mr Rankine too, after being greatly concerned about the implications of the pandemic, also seems to have become more focussed on trying to maintain his business. It is the effect of his evidence, which I accept, that only reasons he contacted Ms Thomas, in this period (mid-March to mid-April), related to the work he was doing at Nonna’s Cucina. In this context, he deposed that his business was struggling financially and as a consequence, he had not replaced Ms Thomas and had no need of anyone to perform the duties, for The Trademan, which she had previously fulfilled.
Clearly, this period was also one marked by a great deal of uncertainty, including how the Government was likely to respond. He has provided his Facebook postings for the period, to which I am satisfied Ms Thomas was privy, which indicated his intention to keep working on, at The Trademan, in the face of adversity.
Between 18 March 2020 and 14 April 2020 the main focus in the parties’ text messages with one another is on a job Mr Rankine had been retained to perform for Nonna’s Cucina, which Ms Thomas had helped him obtain, in an unorthodox fashion, due to her position on the board of management of the organisation. Mr Rankine was anxious to know that the funding for the job was secure and he could be paid sooner rather than later.
On Monday 23 March 2020, Ms Harding sent a text message to Ms Thomas asking if she was in at The Trademan office. Ms Thomas replied that she was not as Mr Rankine had closed the office the previous week. The next day, Mr Rankine sent her a text message in respect of the work to be done at Nonna’s Cucina, which had been delayed to one of his worker’s having to take a Covid-19 test.
Mr Rankine did not have any need to formally stand Ms Thomas down and, given she could essentially elect if and when she came into the office, Ms Thomas could come and go, as she pleased. The only restriction on her hours being the long standing informal agreement between them that she would only ever work a few hours each week.
For her part, Ms Thomas was likely to be aware that, given the onset of the crisis, it was improbable that there would be any great influx of inquiries about The Trademan potentially being asked to quote for the installation of any Stratco products. The obvious focus of his correspondence with Ms Thomas was on maintaining his pre-existing contract with Nonna’s Cucina.
All this evidence persuades me of the essentially amorphous nature of the employment relationship between the parties from mid-March onwards, which indeed was its characterisation for at least the past twelve months, prior to the pandemic emergency. The employment relationship was casual and lacking in system and regulation. Ms Thomas worked when she chose.
Ms Thomas did not agitate to return to work because she was aware that there was little point in doing so. From Mr Rankine’s perspective, the financial outlook of The Trademan had changed drastically for the worst. In these circumstances, it seems improbable that he gave any close thought to what was Ms Thomas’ status or otherwise at the business. As previously indicated, the implicit nervous energy of the period provided fertile ground for misunderstanding to arise.
During the early stage of the pandemic, when neither was able to predict what would happen, the parties responded to this uncertainty in the manner in which they had interacted throughout 2019 other than, with the implicit approval of Mr Rankine, Ms Thomas did not attend the office. The parties’ on-going employment relationship remained as it had been prior to March 2020 – essentially fluid and ad hoc in nature. Ms Thomas decided what she would or would not do.
WHAT HAPPENED ON 15 APRIL 2020 AND AFTERWARDS
On 14 April 2020, Mr Rankine sent Ms Thomas a series of text messages urging her to contact him about an issue which pertained to her best interests. The two finally managed to intersect on 15 April 2020, when Ms Thomas was at her grandfather’s home helping him install an air-conditioner and otherwise socialising with him. The effect of her evidence was that she was disinclined to talk to Mr Rankine about the affairs of The Trademan, which confirms my impression that she was essentially unconcerned about her status at the business.
There can be no doubt that Mr Rankine’s motivation for wanting to contact Ms Thomas was to discuss the possible application of JobKeeper to his and Ms Thomas’ situation, at The Trademan, to their mutual advantage in the context of the pandemic crisis.
I mean Mr Rankine no disrespect but in mid-April of 2020 his knowledge of what JobKeeper did or did not entail was extremely rudimentary. He relied on what was said in the news media but also what was the general scuttlebutt going around the community at the time. As previously indicated, the Commonwealth Government had only released its policy as few days earlier and, in lay terms, how it would play out in the community was highly uncertain and subject to gossip and speculation.
In respect of this period, Mr Rankine deposed as follows:
…I spoke to my accountants BDO Adelaide several times about what the State and Federal Governments might do for business stimulus, and in early to mid-April 2020, I heard through word of mouth about JobKeeper and other possible State and Federal grants. At the time the main person I spoke to at BDO was Mr Kishen Vijayadass. He, to my recall, was not completely sure what if anything The Trademan might qualify for and he was not sure about the rules or how they worked.[37]
[37] See affidavit of Warren Rankine filed 10 November 2021 at [78]
I accept this evidence. Mr Rankine, at best, is likely to have had only a basic level of understanding of what was open to him, The Trademan and indeed Ms Thomas. Given their idiosyncratic employment relationship and the fact that it must have been readily apparent to him that Ms Thomas could not have been significantly financially dependent on the business given how she had approached her work there over the preceding twelve months or so.
As the Federal Court indicated in the Qantas Airways case, the JobKeeper Scheme created outcomes that many are likely to have regarded as anomalous. This was because the amount to be paid through the Scheme was both standardised and guaranteed and if an employer qualified the full amount had to be passed on to each eligible employee. In my view, this was an unprecedented initiative, which the Commonwealth Government itself recognised. As such, it was a complex scheme in both its explanation and implementation.
In these circumstances, it is hardly surprising that a person, such as Mr Rankine, was liable to misconstrue the implications of the Scheme for him and Ms Thomas personally. Particularly given the fact that she had been working for The Trademan so irregularly and on such a limited basis over the last year or so, at the very least.
Even if Mr Rankine had understood the full implications of the Scheme, as at 15 April 2020, which appears to me to be highly unlikely, I suspect that he would have greeted with incredulity the proposition that Ms Thomas could potentially be paid $1,500.00 per fortnight, by the Commonwealth Government, without performing any duties for his business. Notwithstanding the fact that in the previous year she had, at the most, worked a full day for The Trademan on one occasion only and had earned $210.00 for it.
In my view, it is in this context that Ms Thomas’ assertion that Mr Rankine knowingly invited her to take part in some form of quasi-criminal conspiracy must be examined. On the balance of probabilities, it seems to me to be more likely than not that Mr Rankine did not understand, in any realistic sense, what were the implications of JobKeeper. He then contacted Ms Thomas in regards to it in an attempt to be helpful to her and indeed in order to see if she could finally complete the much delayed data base of his clients, which had been his initial motivation for offering Ms Thomas a position and which remained unstarted almost three years after she had begun to work for The Trademan.
I accept Mr Rankine’s evidence that he thought what he was offering Ms Thomas was a win/win situation for each of them. In my assessment, he may be categorised as being naïve or impulsive in his offer but I do not accept he was motivated by dishonesty. It is extremely unfortunate that these expensive and time consuming proceedings have been launched on the basis of what I assess to be a misunderstanding.
In his affidavit, Mr Rankine deposed as follows, in respect of his recollection of the telephone conversation between him and Ms Thomas of 15 April 2020:
I asked Kelly if she knew about JobKeeper and she said she did. I told her I was going to try and get it for The Trademan and asked her whether she would be interested to come back and work 2 days a week. I had in mind her completing the client data base to help the business.
Kelly said she was not interested in coming back to work. I pressed her to consider what I was saying. I said to her if she agreed to come back, she might be able to earn $750 per week for 2 days work instead of the $200 to $300 per week she would have earned before.[38]
[38] See affidavit of Warren Rankine filed 10 November 2021 at [82] – [83].
Mr Rankine’s understanding of the Scheme was incorrect. In addition, it appears improbable that he would have been aware of any potential uncertainty regarding Ms Thomas’ personal eligibility for the Scheme given the previous status of her work. Rather, I accept the tenor of his evidence that he was motivated by a desire to assist Ms Thomas notwithstanding that he was not in full command of the facts regarding the application of the Scheme and how it might apply in his business.
This confirms my overall impression of his temperament that he is a somewhat impetuous person, inclined to react extremely and spontaneously to circumstance – as best demonstrated by his inclination to announce the closure of his office on 16 March – and then calm down as more information comes to hand and he can reflect on it.
His offer to Ms Thomas was precipitate and ill-considered but kindly intended. He cannot have known whether what he was offering was feasible or not, as he had little grasp of what JobKeeper actually entailed. Mr Rankine in my opinion is the sort of person who considers the fine detail later. Rather, it seems to me he wanted to make a big splash with Ms Thomas so far as JobKeeper was concerned.
In his oral evidence, Mr Rankine deposed that he began discussions with BDO about The Trademan’s possible eligibility for JobKeeper from 9 April 2020 onwards but did not have a clear understanding of what it might or might not entail. He also indicated that he had made a lot of inquiries about it with a lot of people.
Significantly, this state of affairs led to her level of remuneration being sporadic. In any event, on any view, the sums she earnt were modest in nature. In these circumstances, when the pandemic crisis broke, in mid-March, Mr Rankine felt no compunction in closing his office and so, in his mind, ending the employment relationship between the two.
I am satisfied that whatever employment relationship, which existed between the parties, ended on 10 March 2020, although it was clearly capable of being reinstated. As such, in Mr Rankine’s mind, he had no obligations towards Ms Thomas, apart from paying her what she was due. In addition, at this early stage, I am also satisfied that Ms Thomas was of the same mind. She did not think Mr Rankine owed her any obligations and it was his prerogative to close The Trademan office.
This commonality of understanding was disrupted by the Australian Government’s announcement of the apparent largesse of JobKeeper, which as with the Pandemic itself, was unprecedented in Australian recent history. Its announcement was the catalyst for Mr Rankine to contact Ms Thomas on 15 April 2020.
I am satisfied Mr Rankine did not understand the implications of the Scheme, particularly the fact that if a business qualified the level of remuneration to be provided to eligible employees, by the Government, was not necessarily connected to past levels of pay. In the circumstances of him and Ms Thomas, I do not think that there is anything sinister in his misconception.
He was well meaning, but mistaken in what he proposed to Ms Thomas. However, nothing was done to formally or illegally advance his misconception. In addition and significantly there can be no guarantee, in my view, given her previous level of employment that Ms Thomas would have been deemed eligible for the JobKeeper Scheme anyway.
The reason why Mr Rankine’s proposal was not advanced was because Ms Thomas upbraided him severely and characterised his as a shonk. This upset Mr Rankine who felt unfairly maligned. In this heated and febrile environment, each resolved to have nothing further to do with the other. Each said he or she was done with the other.
After 15 April 2020, both Mr Rankine and Ms Thomas were too stubborn to seek some form of rapprochement with the other. Ms Harding did not consider it her role to negotiate any form of reconciliation. In my view, it was clearly Mr Rankine’s personal view that he had no obligation towards Ms Thomas whatsoever, either in respect of JobKeeper or in any other manner. Certainly, Ms Thomas herself did nothing to persuade him otherwise. She maintained her silence towards him.
It also the case that, from 23 June of 2020, Ms Thomas had obtained another position at Penny Riggs Property Management and therefore was ineligible for any payments from The Trademan vis-à-vis any application it made for JobKeeper for its former employees, as at 1 March 2020.[43] Certainly, in practical terms, Ms Thomas did nothing to facilitate her nomination, by The Trademan, for JobKeeper.
[43] See Exhibit E.
In the context of Ms Thomas’ application it is necessary for the court to identify the particular workplace right germane to her before, if appropriate, in determining whether she has been subject to some form of adverse action because of the application of that right to her circumstances. In general terms, as I understand her case, it is the right to be nominated to take part, as an eligible employee in the JobKeeper Scheme.
From 10 March 2020 onwards, I am satisfied that Ms Thomas’ employment with The Trademan was in abeyance subject to her presenting at its premises on the following Monday. Mr Rankine was entitled to indicate to her that, for whatever reason, her services were not required on 17 March, which he clearly did. At this stage, no relevant workplace right could have been engaged, as JobKeeper itself did not formally exist.
On 15 April 2020, Mr Rankine informally indicated to Ms Thomas the prospect of The Trademan applying for JobKeeper. He indicated his understanding that his business may be eligible to apply. The proposition he put to Ms Thomas, at this stage, was erroneous and misconceived. Significantly, no actual application had been made and none of the criteria, which The Trademan was required to satisfy, including downturn in turnover, had been made to the Commissioner of Taxation.
The proposition put by Mr Rankine, at this stage, was entirely conjectural. He had not concluded his discussions, with his accountants, in regards to what had to be done to satisfy the criteria for The Trademan to be eligible for JobKeeper payments.
However, at this stage, in my view, the evidence shows that Ms Thomas indicated that she would have no further truck with Mr Rankine and she did not wish to be nominated by The Trademan for JobKeeper. At this stage, she made it clear to Mr Rankine that she was done with him and The Trademan. Essentially, the employment relationship between her and The Trademan had become incapable of being rekindled from her perspective.
Thereafter, as he was entitled to do, Mr Rankine completed his inquiries with his accountant and instructed them to do whatever was required to be done to ascertain whether The Trademan would qualify for JobKeeper. Given what Ms Thomas had told him, in no uncertain terms, in my view, he was under no obligation to keep her informed as to the progress or otherwise of his application for JobKeeper.
In technical terms, he was not to know whether Ms Thomas had other employers; had sought other avenues of employment; or regarded The Trademan as her primary employer. From his perspective, over the year preceding 1 March 2020 he had provided her with an extremely modest salary and her engagement with his business seemed to be one of decline rather than increase.
Prior to 1 May 2020, section 9(3) of the relevant rules required an employee of an entity which had qualified for JobKeeper to agree to be nominated to take part in the Scheme. Ms Thomas provided no such nomination. She did not ask Mr Rankine to provide her with such a nomination form. Rather, she conducted her own clandestine inquiries, via Ms Harding, to ascertain the approach being taken by The Trademan.
Ms Harding was not directly employed by The Trademan. Her employer contracted her services to The Trademan to do its bookkeeping. Accordingly, Ms Harding had no authority to make any decisions or take any decisions regarding The Trademan eligibility for JobKeeper or who of its employees would be including in any relevant application for it.
It does not seem to me to be improbable that Ms Thomas had an entitlement to ask of Mr Rankine whether The Trademan was applying for JobKeeper and thereafter to request that the prerequisite nomination documents be provided to her for her completion. The essential underpinning of the Scheme created an obligation on her to formally advise the Commissioner of Taxation that she regarded The Trademan as her primary employer for the purposes of the JobKeeper Scheme and that she had no other form of employment at relevant times. Mr Rankine could not do this on her behalf.
It is clear to me that Ms Thomas did not exercise this entitlement. Rather, she approached the issue obliquely via Ms Harding, who was not authorised to send her the nomination form and was not a formal delegate of The Trademan for any purposes pertaining to the JobKeeper Scheme. Indeed, the evidence indicates that Ms Thomas herself resolutely declined to make any such overture to Mr Rankine himself until such time as he apologised to her.
In these circumstances, Mr Rankine had no possible way of knowing that Ms Thomas was aggrieved or otherwise in respect of how The Trademan had elected to approach the issue of JobKeeper as it pertained to her given that she did not raise the issue with him nor did she request that Ms Harding do it on her behalf.
For his part, at this stage, Mr Rankine was oblivious of what Ms Thomas’ personal and employment situation was, particularly whether she had sought alternative employment for herself; had been the subject of another employer’s application to take part in the Scheme and had supplied the relevant nomination in this context; or indeed whether, for some particular reason personal to herself, she did not want to take part in JobKeeper. In this context, it is important to note that the Scheme was primarily directed toward employer entities rather than employees.
In these circumstances, in my view, Mr Rankine was entitled to pursue JobKeeper, on behalf of The Trademan, via the agency of his accountants, without any reference to Ms Thomas, from 15 April 2020 onwards. I do not accept that he took any adverse action against Ms Thomas because of any entitlements she personally had under the JobKeeper Scheme.
In particular, I do not accept that he injured Ms Thomas’ employment with the JobKeeper given the fact that she had unequivocally indicated to him that she personally was done, with The Trademan, from 15 April 2020 onwards. In my view, he was entitled to consider that Ms Thomas had, in his words, departed the business.
Mr Rankine was formally accepted for JobKeeper, on behalf of The Trademan, on 29 April 2020. He nominated only one employee of The Trademan, as an eligible employee for the JobKeeper fortnights commencing 30 March and 13 April 2020, namely himself. The form he provided to support his nomination required the employer to notify eligible employees. It further indicated it would be used to ask eligible employees if they agree to be nominated by you as their primary employer so that they can receive JobKeeper payments for them.
However, the nomination aspect of the form required relevant employees to indicate their willingness to be nominated and affirm that they satisfied the eligibility criteria, which included indicating that they were currently employed and had been employed as at 1 March 2020, if a casual employee on a regular or systematic basis in the previous twelve months.
I accept that it was his understanding that he had no specific obligations towards Ms Thomas, vis-à-vis JobKeeper at this stage, as she was not an eligible employee in his understanding given what she had said and how she had acted towards him on 15 April 2020 and afterwards, as she was not currently employed by The Trademan. As such, I do not consider he was under any formal obligation to provide the form to her and, as previously indicated, Ms Thomas herself neither requested such a form or asked to be nominated.
This was two days prior to the reiteration of the Coronavirus Economic Response Package (Payment and Benefits) Rules which created section 10A, which created an obligation on employers to provide notice of intention to apply for JobKeeper to all relevant employees as at 1 March 2020.
As previously indicated, the application of this provision is one of the main thrusts of Ms Thomas’ case. Neither Mr Sallis nor Mr Hanna, as I recall, addressed the question of the retrospective application of the provision. However, pursuant to section 10A(4) an employing entity is excused from the obligation to provide this notice if it reasonably believes that the individual concerned does not satisfy the eligibility criteria provided by section 9(2). These include whether the individual was a permanent casual employee as at 1 March 2020.
There is no evidence as to what was or was not Mr Rankine personal state of mind vis-à-vis Ms Thomas’ employment status as at 1 March 2020. However, given what occurred on 17 March 2020 and afterwards, it seems clear that he did not consider that The Trademan was under any on-going obligation to maintain her employment at this stage. Certainly because Ms Thomas did not contact him in respect of her desire to be nominated for JobKeeper he was not in a position to turn his mind to the issue or seek professional advice as to what were the possible ramifications of Ms Thomas’ previous level of employment so far as her eligibility for the Scheme was concerned.
In my view, these were obvious live issues in the context of the modest amounts of income which had been derived by her and the lack of system and regulation in her hours of work. In these circumstances it would have been open to Mr Rankine, if the issue had been specifically raised with him, to have classed Ms Thomas, so far as The Trademan was concerned, as being a person who was not casually employed.
In these circumstances, it seems to me to be essentially unfair that Mr Rankine should be regarded as having a retrospective statutory obligation in respect of a matter which had not been specifically canvassed with him and which also relied on the employee concerned certifying his or her personal degree of eligibility and willingness to take part in the Scheme, neither of which Mr Rankine himself was in a position to certify.
As previously indicated, the underpinning of the JobKeeper Scheme, including so far as it pertains to casual employees, is to ensure a minimum level of connection between an employing entity and the employee concerned. This requires an assessment of the degree of connection at both the start of the Scheme and during each relevant JobKeeper fortnight. In my view, such considerations are likely to be central in informing what is a reasonable state of mind for any relevant entity.
Both before and after 1 May 2020, Mr Rankine clearly considered that Ms Thomas wished to have nothing further to do with The Trademan. There is no evidence to indicate that Ms Harding or anyone else did anything to dissuade him otherwise.
In all these circumstances, I am of the view that Ms Thomas has not been able to establish either that she had a relevant workplace right at relevant times or that The Trademan or its operator (Mr Rankine) took any proscribed adverse action against her. As a consequence, I have formed the conclusion that Ms Thomas’ principle cause of action should be dismissed.
The remaining issues concern The Trademan liability for the civil penalty offences arising under sections 323(1)(c) and 536 of the FWA. Mr Rankine admits that he did not provide Ms Thomas with pay slips and did not pay her at least monthly.
In mitigation, he points to the idiosyncratic nature of Ms Thomas’ employment and the fact, from his perspective, she never agitated to be paid more regularly; and as he relied on her to keep a record of the hours she worked and calculate her rate of pay, which he accepted without demur, the utility for a further payslip was redundant.
I am satisfied that The Trademan has breached the relevant provisions of the Act and Mr Rankine bears accessorial liability for these breaches. However, Ms Thomas has not particularised these breaches and the main emphasis, in her case, has been on perception that she was disadvantaged by Mr Rankine in respect of the JobKeeper Scheme.
I do not consider it appropriate for the court to attempt to formulate the number of counts applicable. This would be extremely difficult to do from the raw material available and neither Mr Hanna nor Ms Thomas has done so.
As previously indicated, pursuant to section 546 of the FWA the power to impose a civil penalty order on a respondent is discretionary in nature. Pursuant to relevant authority,[44] the types of matter to be considered in determining whether to impose such a penalty and its extent are as follows:
[44] See Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Kelly v Fitzpatrick [2007] FCA 1080 at [14]. (Tracey J); Blandy v Coverdale NT Pty Ltd [2008] FCA 1533 at [23] (Reeves J).
· The nature and extent of the conduct which led to the breaches;
· The circumstances in which the conduct took place;
· The nature and extent of any loss or damage sustained as a result of the breaches;
· Whether there has been similar previous conduct by the respondent;
· Whether the breaches were properly distinct or arose out of the one course of conduct;
· The size of the business enterprise involved;
· Whether or not the breaches were deliberate;
· Whether senior management was involved in the breaches;
· Whether the party committing the breaches has exhibited contrition;
· Whether the party committing the breaches has taken corrective action;
· Whether the party committing the breaches has cooperated with the enforcement authorities;
· The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
· The need for specific and general deterrence.
Regardless of these considerations, the fundamental task, for the court, is to determine, from all the factual circumstances arising, the gravity or seriousness of the offending, which it is called upon to penalise. Again there is general agreement between the parties as to the considerations relevant to this task, which has been delineated in a number of decisions of both this court and the Federal Court.
However, in the recent case of Australian Building and Construction Commissioner v Pattinson[45] the High Court indicated that the primacy of deterrence is the objective of any civil penalty regime. As such a sentencing court, in a civil penalty matter, is required to impose a penalty which is proportionate in the sense that it strikes a reasonable balance between deterrence and what is described as oppressive severity.[46]
[45] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.
[46] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [41].
Many cases have emphasised the importance of the provision of payslips to employees as an aid to them to ensure they are correctly paid and are able to check their records to see if payment has been made. Judge Reithmuller in FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor[47] said as follows:
Without proper payslips, employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated.
[47] FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258 at [67].
The distinction in this matter is that Ms Thomas calculated her own wages and recorded the details in her timebook. This reflected the extremely informal nature of the relationship between her and Mr Rankine. As such, I do not consider it can be said that Ms Thomas was disempowered by the lack of a payslip.
The main gravamen of her complaint is that she did not get her wages with more regularity. In this context, I do not disbelief Mr Rankine’s evidence that it suited both him and Ms Thomas to wait until there was a reasonable amount to be paid. I also accept that Ms Thomas did not agitate to be paid more frequently. As I have already observed, my impression of Ms Thomas is that she is not a person likely to be reticent about lodging a complaint relative to such a matter if it did rankle with her.
It is difficult to see how the various omissions of which Ms Thomas complains have caused her any specific loss or damage. She does not allege that she has not been paid what is due to her for the hours worked. Clearly The Trademan is a small enterprise. It does not seem to me to be the case that Mr Rankine deliberately set out to flout the industrial law for some personal financial advantage.
However, ultimately, as pointed out in Pattison, the most important consideration for the court should be focussed on deterrence. It seems unlikely that Mr Rankine will offend in the same way in future. These vitriolic and hard fought proceedings, between two individuals who previously enjoyed some level of cordiality between them, have provided a salutary lesson for Mr Rankine.
In addition, given the idiosyncratic nature of the employment situation in question, in my view, there is no pressing need for the court to consider issues of general deterrence. In these circumstances I propose to make findings in respect of one contravention in respect of each of the matters alleged under sections 323(1)(c) and 536 of the Act but decline to impose any pecuniary penalty.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated:
67 July 2022
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