Vij v Cordina Chicken Farms Pty Ltd
[2012] FMCA 483
•15 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VIJ v CORDINA CHICKEN FARMS PTY LTD | [2012] FMCA 483 |
| INDUSTRIAL LAW – Whether labour hire employee employed by operator of workplace – whether labour hire employee prospective employee of operator of workplace. WORDS & PHRASES – Prospective employee. |
| Fair Work Act 2009, ss.340, 341, 342, 351, 539, 545, 546, 550 Crimes Act 1914, s.4AA |
| Wilton v Coal & Allied Operations Pty Ltd (2007) 162 IR 264 Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186 Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 Twentieth Superpace Nominees Pty Ltd v Transport Workers’ Union (2006) 156 IR 323 Guirguis v Ten Twelve Pty Ltd [2012] FMCA 307 |
| Applicant: | SUMER KANWARJEET SINGH VIJ |
| Respondent: | CORDINA CHICKEN FARMS PTY LTD |
| File Number: | SYG 2470 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 April 2012 |
| Date of Last Submission: | 23 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr M. Easton |
| Solicitors for the Respondent: | Truman Hoyle |
ORDERS
The questions posed for separate determination are answered as follows:
1.No.
2.No.
3.No.
4.Not necessary to answer.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2470 of 2011
| SUMER KANWARJEET SINGH VIJ |
Applicant
And
| CORDINA CHICKEN FARMS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent company (“Cordina”) operates a chicken factory in Girraween, New South Wales. The applicant, Mr Sumer Vij, alleges that he was employed by Cordina to work in its factory from 4 May 2011 to 12 September 2011. Mr Vij is a Sikh and, it may be assumed, ethnically Indian. He alleges that during the course of his employment he was abused by Cordina’s management and suffered discrimination on the basis of his race and religion. He also alleges that after he tried to educate other workers and management about workplace rights, working “with dignity” and bullying and harassment in the workplace, Cordina unlawfully terminated his employment.
In contrast, Cordina alleges that Mr Vij was employed by Bai Li Food Services Pty Ltd (“Bai Li Food Services”) and/or ABC Staff Hire Pty Ltd (“ABC”), both of which are contracted to provide Cordina with labour hire workers on a temporary basis. Cordina alleges that Mr Vij was not an employee but a temporary labour hire worker employed by one of its contractors.
Mr Vij seeks compensation and reinstatement in his employment.
Relevant legislation
General protections
Part 3-1 of chp.3 of the Fair Work Act 2009 (“FWA”) provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights. Sections 340 to 342 of the FWA are found in div.3 of pt.3-1 and relevantly provide:
340Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person. …
341Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
…
(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.
…
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
…
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an 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.
Division 5 of pt.3-1 provides for other protections. Section 351 of the FWA is found in that division and relevantly provides:
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. …
Section 539 provides that ss.340(1) and 351(1) are civil remedy provisions.
Penalties and compensation
Sections 539 and 546(2) provide that the maximum pecuniary penalty for a contravention of ss.340 or 351 is 60 penalty units for an individual and 300 penalty units for a corporation. A penalty unit is worth $110: s.4AA Crimes Act 1914.
Section 545(2)(b) provides that the Court may award compensation for loss suffered because of a contravention of those civil remedy provisions.
Separate questions
At the commencement of the hearing of Mr Vij’s application the parties agreed that the Court should determine certain questions separately and as points preliminary to the remainder of the case. Those questions were:
1.Was the applicant an employee of the respondent?
2.Was the applicant a prospective employee of the respondent?
3.Could the respondent be taken to have contravened a civil remedy provision?
4.If the answer to 3 is affirmative, what civil remedy provision?
Evidence
Sumer Kanwarjeet Singh Vij
Mr Vij’s evidence was not completely clear but it appears that he was interviewed by ABC and told by them that he would be working at a chicken factory in Girraween. He said that he thought that ABC was just an employment agency which sent workers to employers although at another part of his evidence he acknowledged that he had signed an employment form with ABC together with terms and conditions which, amongst other things, said:
Employer: your employment is with ABC Staff Hire, not the factory in which your work is performed.
Mr Vij deposed that subsequently, at 8:57am on 3 May 2011, he received a text message from “PennyTel” which read:
hi this is Amy from ABC, you will work for packing section before 9:30am today and you need see Gary. Cordina Chicken address: 104 Magowar rd, Girraween.
Mr Vij deposed that he then went to Cordina’s factory where he worked until 4:30pm. At approximately 5pm on the same day, he received a call from Amy Song (human resources officer for Bai Li Food Services and ABC) who told him that Cordina had been very happy with his work and that, starting the next day, he would be working on a permanent full-time basis in the factory’s kitchen section. At 5:02pm he received a text message which read:
this is Amy from ABC, you will work at Cordina Chicken section tomorrow at 10am, you will see Gary, Cordina add: 104 Magowar rd, Girraween nsw 2145.
Mr Vij deposed that he was never informed that his employment with Cordina was temporary.
Mr Vij said that when he started to receive pay slips which referred to Bai Li Food Services he assumed that that company had something to do with Cordina, rather than with ABC. He acknowledged that he had received a PAYG summary dated 2 July 2011 from Bai Li Food Services and went on to say that he assumed that his subsequent tax return referred to Bai Li Food Services as his employer.
Mr Vij deposed that from 3 May 2011 until 19 September 2011 he worked at the factory six to twelve hours per day, five days a week. He deposed that he reported to Mary Vassallo and Gary Broadhurst. He said that directions were principally given to him by Ms Vassallo and, indeed, she was his only point of contact.
Mr Vij said that to encourage workers to be diligent Cordina held out the prospect of them becoming its employees and, thereby, better paid than workers in his category. He said that he had been told within his first ten days at Cordina that if he worked hard he would have the opportunity to become an employee. He said that examples were given of people who worked for Bai Li Food Services and later became Cordina employees.
Mr Vij deposed that on 3 August 2011, whilst working in the kitchen section on the gourmet mondini machine, he heard Ms Vassallo yelling his name. He deposed that he ran to Ms Vassallo’s workstation where he was introduced to Mario Camilleri, the operations manager. He deposed that they started shouting at him in front of fifteen or twenty other workers. They told him to “fuck off” and said that he did not need to come into work the following day as they did not need “slow, dumb, stupid and Indian asshole[s] [sic]” like him. He deposed that they continued to abuse, insult and swear at him for about twenty-five minutes. Afterwards, when he went to mark his attendance for the day, Ms Vassallo told him that he had not been sacked and that he should come into work the following day.
Mr Vij deposed that on 7 August 2011 Ms Vassallo issued him a factory locker. However, when he went to open it, he found that it was already occupied. Mr Vij deposed that when he raised this with Ms Vassallo the next day she told him to “fuck off”.
Mr Vij deposed that he became extremely depressed after “these two incidents of harassment, insult, and bullying”. He deposed that during this period of depression he went to a library and read some books on bullying and harassment in the workplace. Subsequently, on 23 August 2011, he printed out three notices and placed them on the noticeboard at the factory. They stated:
WORK WITH DIGNITY
This is to bring to the notice of all the fellow workers, employees and the management of Cordina Chicken
The Standard
A.Employers and workers are committed to recognising and affirming the dignity of every person in the workplace.
B.There is no bullying and harassment in the workplace.
C.The employer regularly invests in the skill formation of workers and appropriate career paths are developed within the workplace.
D.Surveillance of the workplace occurs only with the consent of workers and when used for legitimate purpose.
E.Every person in the workplace is committed to treating others with respect.
Brought to you by – Sumer Singh Vij one of you who works at kitchen section, Gourmet Mondini machine. To know about workers’ rights, please feel free to contact me …
and:
WORKERS’ RIGHTS
This is to bring to the notice of all the fellow workers, employees and the management of Cordina Chicken
These are some of the key clauses of the Universal Declaration of Human Rights that are concerned with work.
Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 23a) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
b) Everyone, without any discrimination, has the right to equal pay for equal work.
c) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
d) Everyone has the right to form and join trade unions for the protection of his interests.
Article 24Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Brought to you by – Sumer Singh Vij one of you who works at kitchen section, Gourmet Mondini machine. To know about workers’ rights, please feel free to contact me …
and:
BULLYING & HARASSMENT IN WORKPLACE
This is to bring to the notice of all the fellow workers, employees and the management of Cordina Chicken
Harassment is usually seen as constant interference or intimidation that violates a persons’ [sic] dignity or creates a hostile or degrading environment. While workplace harassment usually consists of a pattern of unwelcome behaviour, it can also consist of just one act. Charter right 3, “Freedom From Discrimination And Harassment”, details specific grounds, but workplace harassment can occur on a general level and be found unlawful. For example, in one case the court found it was workplace harassment for a supervisor to subject a worker to humiliating criticism and repeatedly taunt the worker for being “stupid” and “slow”. The employer was found vicariously liable for the actions of the supervisor and was ordered to pay the worker $200,000.
Brought to you by – Sumer Singh Vij one of you who works at kitchen section, Gourmet Mondini machine. To know about workers’ rights, please feel free to contact me …
Mr Vij deposed that on 24 August 2011 Cordina’s general manager, Daniel Cordina, called him into his office and questioned him about the reasons for his actions. Mr Vij deposed that during that meeting he was told that he would lose his job if he did it again.
Mr Vij deposed that later that day he advised Ms Vassallo that the emergency exit of the kitchen section where he worked was blocked by goods and paraphernalia. He deposed that Ms Vassallo told him that he could leave if he found it too dangerous to work or if he was unhappy with the polices, procedures and work culture adopted by management. He deposed that she also said that they would be happy working without an Indian idiot like him.
On 25 August 2011 Mr Vij was given a memo addressed to “All Agency Casuals” and signed by Mr Camilleri. The memo stated:
Recruitment Process
When Cordina Chicken Farms requires additional labour due to operational needs they will contact a recruitment agency to provide casual labour.
As a casual employed via a recruitment agency, your engagement at Cordina Chicken Farms terminates at the end of each shift worked. Cordina Chicken Farms will confirm their operational needs with the recruitment agency on a daily basis. The recruitment agency will then advise and confirm shifts with their casuals.
Mr Vij said that he was surprised to get this document because he did not consider himself to be an agency casual but an employee of Cordina, an employment which he understood commenced when he started work with them on 3 May 2011. When it was put to Mr Vij that this evidence appeared to contradict what he had earlier said in relation to being a prospective employee, he said that his position had been one of a casual employee of Cordina and the inducement offered by Ms Vassallo was for him to become a permanent employee. Mr Vij said that it was Cordina’s policy to appoint employees from the ranks of ABC casuals and he thought he could become a Cordina employee through the “route” of Bai Li Food Services.
Mr Vij deposed that he approached his supervisor, Mr Broadhurst, and told him that he wanted to ask Mr Camilleri why the 25 August 2011 memo had been issued to him given that his shift confirmations had always been advised by Ms Vassallo. He deposed that Mr Broadhurst told him that Mr Camilleri had better things to do and did not have time to talk to him.
Mr Vij deposed to a particular incident where his shoes had become submerged in contaminated water spilling on the production floor. He deposed that the water penetrated his socks as the shoes which had been provided to him by Cordina were torn. Given the freezing conditions inside the production hall, it became difficult for him to work so he asked Ms Vassallo for better footwear. At the same time, he also notified her of a broken drain pipe. He deposed that Ms Vassallo told him that she was sick of him, that he should go back to work if his job was precious to him, that the broken drain pipes were none of his business and that this was the best that could be provided to a “bloody Indian fool” like him. Ms Vassallo also said that the cameras were watching and that he would not get paid for the time he was wasting.
Mr Vij deposed that on 13 September 2011 he informed Ms Vassallo that he would not be able to come to work as he had to go to the office of the Fair Work Ombudsman (“FWO”) to lodge a complaint in respect of Cordina’s failure to pay him overtime. He deposed that Ms Vassallo told him that he was risking his job and would soon lose it. Although Mr Vij said that his complaint to the FWO had made no reference to Bai Li Food Services, annexed to his affidavit was a copy of the FWO’s letter to him acknowledging receipt of his complaint regarding “your employment with BAI LI FOOD SERVICES PTY LTD t/as Cordina Chicken”. Mr Vij said that he later received approximately $2,700 in respect of underpaid wages.
Mr Vij deposed that later in the afternoon on 13 September 2011 he was advised by Mr Cordina that his section would soon be changed in accordance with the company’s multi-tasking policy to create skilled workers in multiple areas.
Mr Vij deposed that on 15 September 2011 Mr Broadhurst informed him that, because of his previous actions, he had been transferred to the cold room where the work was hardest. He had also been allocated a new supervisor, Socrates Aguilar. He deposed that every possible effort was made by Cordina to make him quit his job.
Mr Vij deposed that most of the workers in the cold room were students with limited working rights. He deposed that he was informed by a fellow worker that students, who could work a maximum of twenty hours a week, were being made to work between forty to sixty hours a week. He deposed that they were being paid $15.51 per hour for the initial twenty hours and $12 per hour in cash thereafter. Mr Vij deposed that on 19 September 2011 he asked Mr Broadhurst if he could meet with Mr Cordina to discuss these issues. He deposed that Mr Broadhurst told him that Mr Cordina was in an important meeting and that he would let Mr Vij know at the end of the shift when it would be possible for him to meet him. However, at the end of his shift Mr Vij was informed by Mr Aguilar that, because of his actions, his services would no longer be required with immediate effect. At 5:28pm he received a text message from “PennyTel” which read:
Hi Sumer Vij. This is ABC staff hire. We have been notified by Cordina that you are not required to work there until further notice effective today 19/09/2011.
Mr Vij confirmed that he received a second text message from ABC Staff Hire asking that he contact them but chose not to do so because he had been underpaid.
Mr Vij deposed that the prejudicial attitude and behaviour of Ms Vassallo, Mr Camilleri and Cordina management caused irrecoverable damage to his self-esteem and self-respect. He deposed that he had not been able to overcome the stress, depression, anxiety, trauma, verbal abuse and mental torture he had suffered as a result of these incidents.
James Wang
Mr Wang is the general manager of Bai Li Food Services and ABC which, he deposed, provided temporary labour hire workers to commercial food processing factories on an “as needs” basis. He deposed that both companies traded under the name “ABC Staff Hire”.
Mr Wang deposed that ABC and Bai Li Food Services each had an agreement with Cordina to provide labour hire workers on a casual basis. He deposed that ABC provided workers to Cordina when the workers were required to produce “units”. In these situations, ABC charged Cordina according to the volume of production. Mr Wang deposed that Bai Li Food Services provided workers to Cordina in respect of all other types of work and charged Cordina for the workers’ time on an hourly basis.
Mr Wang deposed that Mr Vij was employed by Bai Li Food Services on or about 14 April 2011 and that his initial appointment was to work at Cordina’s factory in Girraween. He deposed that during Mr Vij’s appointment either he (Mr Wang) or Amy Song, the human resources officer for Bai Li Food Services and ABC, would contact Mr Vij on a weekly basis to confirm his shifts. In his oral evidence Mr Wang said that ABC Staff Hire did not communicate with its employees in relation to their shifts in third party workplaces unless their shifts were to change.
Mr Wang went on to say that the company nevertheless had contact with its employees because pay slips were issued face-to-face on a weekly basis by an ABC Staff Hire payroll officer. The company also had a presence in its clients’ workplaces where its employees could contact it. Mr Wang deposed that Bai Li Food Services employed two representatives at the Cordina factory who performed a supervisory role in respect of the labour hire workers employed by both ABC and Bai Li Food Services. Additionally, on occasion he and another representative from ABC Staff Hire would attend Cordina’s premises to speak to the workers.
Mr Wang deposed that during Mr Vij’s appointment at Cordina, he was not aware of any complaints raised by Mr Vij either in relation to the terms of his employment or the conditions of his work.
Mr Wang deposed that Mr Vij’s placement with Cordina ended on 19 September 2011 after he received an email from Mr Broadhurst advising him that Cordina no longer had any shifts for Mr Vij to perform. He deposed that since his appointment with Cordina ended, Mr Vij had not made any contact with ABC Staff Hire or any employee of ABC Staff Hire.
Mr Wang confirmed that Bai Li Food Services had received an underpayment claim from Mr Vij and had paid him an amount.
Anne-Marie Gerbasi
Ms Gerbasi is Cordina’s human resources manager. She deposed that her duties included overseeing the employment of Cordina’s employees as well as engagement of temporary labour hire workers through labour hire agencies when the factory required additional workers. Ms Gerbasi deposed that Cordina had labour hire agreements with Bai Li Food Services and ABC. She deposed that Bai Li Food Services and ABC shared the same administrative personnel, traded under the name ABC Staff Hire and had the same general manager, Mr Wang.
Ms Gerbasi deposed that Cordina was not involved in the recruitment of labour hire workers by ABC Staff Hire. She deposed that ABC Staff Hire conducted initial interviews with prospective employees, hired them and then decided which employees would be placed with its clients. Ms Gerbasi deposed that when Cordina required temporary labour hire employees, its production manager or its assistant production manager, Mr Broadhurst, would contact ABC Staff Hire. She deposed that after a worker was allocated to Cordina, Cordina carried out an induction process and directed the worker to perform particular tasks.
Ms Gerbasi deposed that Mr Vij was a temporary labour hire worker employed by Bai Li Food Services who was placed with Cordina from about 4 May 2011 to 19 September 2011.
Ms Gerbasi deposed that her duties included managing Cordina’s payroll but that she was not responsible for managing the payroll for Bai Li Food Services or ABC employees. She deposed that ABC Staff Hire’s payroll officer attended Cordina’s premises to issue pay slips to Bai Li Food Services and ABC employees and that Mr Wang and another representative also occasionally visited Cordina’s premises to communicate with and issue instructions to their employees. Ms Gerbasi deposed that during Mr Vij’s engagement, she did not issue him with any pay slips.
Ms Gerbasi deposed that there were common areas in Cordina’s factory where work-related information, including safety notices and hygiene related information, was generally displayed. She deposed that various incident reporting documents were also available from the human resources office, production office and first aid room. Ms Gerbasi deposed that there was an occupational, health and safety (“OH&S”) committee comprised of representatives from various departments within the factory whose pictures were posted around the factory. She deposed that Cordina also regularly conducted “Safety Toolbox Talks” to communicate safety related information to employees.
On 25 August 2011 Ms Gerbasi attended a meeting with Mr Vij, Mr Cordina, Mr Broadhurst and Mr Wang to discuss the posters which Mr Vij had posted around Cordina’s factory. Ms Gerbasi deposed that prior to the meeting she had a conversation with Mr Cordina to the following effect:
Mr Cordina: Why is Sumer posting this material around the premises? Has he made any complaints?
Ms Gerbasi:Not to me. As far as I am aware there have been no incidences [sic] in the workplace which might have instigated this.
Mr Cordina:He has also been taking photographs of the workplace. That is inappropriate.
Ms Gerbasi deposed to the following conversation taking place at the meeting on 25 August 2011:
Ms Gerbasi:Sumer, have you ever reported any incidents, issues or concerns to Bai Li or to someone from Cordina that you feel have not been addressed?
Mr Vij: No
Ms Gerbasi:Do you understand that, as you are a temporary labour hire worker at Cordina, you are only on assignment here? If you have any concerns about your terms of employment, you must report these to your employer, Bai Li?
Mr Vij: Yes, I know that.
Ms Gerbasi deposed that when an OH&S delegate, team leader, supervisor or manager received a complaint about workplace health and safety from an employee, that complaint would be reported either to her, to the safety officer or to the employee’s manager. She deposed that during Mr Vij’s engagement with Cordina she was not aware of any complaint made by him in relation to blocked emergency exits, although a report was lodged with WorkCover New South Wales. Ms Gerbasi deposed that on 6 October 2011 a WorkCover inspector attended Cordina’s premises without notice. She deposed that he had with him photographs of allegedly blocked entrances. Ms Gerbasi deposed that after inspecting the factory and finding no blocked entrances, the inspector said:
I have concluded that this claim is not justified. There will be no further action pending.
Ms Gerbasi deposed that she never received a complaint from Mr Vij regarding his footwear or broken drain pipes. She deposed that generally Cordina provided gumboots to employees working in wet environments and steel capped boots for those working around forklifts. She deposed that she was unaware of how either type of footwear would tear.
Ms Gerbasi deposed that she never received a complaint from Mr Vij about a failure to pay him overtime. She deposed that his alleged complaint was made on 13 September 2011, after the 25 August 2011 meeting where she had told him that he was an employee of Bai Li Food Services. Ms Gerbasi deposed that the proper person for Mr Vij to complain to about pay rates and the length of shifts would have been a representative of Bai Li Food Services and, since she was not involved in ABC Staff Hire’s payroll processes, she was not aware whether Mr Vij was paid overtime.
Ms Gerbasi deposed that since the commencement of her employment with Cordina she had submitted all visa clearance forms for Cordina’s employees and was not aware of Cordina contravening any visa restrictions.
Ms Gerbasi deposed that at a meeting on 12 September 2011 with Mr Vij and Mr Cordina, Mr Cordina said:
Sumer, the company has decided that it needs to broaden the skills of its workers so that we move workers around to suit operational requirements. Multitasking will allow us to place you in another part of the factory if you are no longer required in a certain section. At this point, we don’t know where we will move you to, but Gary will confirm this with you when you return to work on the 14th.
Ms Gerbasi denied that Mr Vij’s move to another part of the factory was because of his alleged previous actions. She deposed that Mr Vij was moved to the cool room to replace an employee who had gone on annual leave and following a decision by Mr Cordina to multi-skill certain workers. She deposed that during Mr Vij’s time in the cool room she received complaints from his supervisor and manager that he was slowing processes down by standing and talking to his colleagues. Ms Gerbasi deposed that despite her concern over the issue, she took no action and the complaints were not the reason Mr Vij’s engagement ended. Instead, she deposed that on 19 September 2011 the worker Mr Vij had replaced returned from leave and Mr Vij was no longer needed in the cool room but there were no other sections in the factory which required a temporary worker.
On 19 September 2011 Mr Broadhurst sent an email to Mr Wang stating that Cordina would not be requiring Mr Vij and did not know when he would be required again. On 13 October 2011 Ms Gerbasi emailed Mr Wang enquiring whether Mr Vij was still working for Bai Li Food Services. Mr Wang replied that Mr Vij had not contacted Bai Li Food Services since the end of his engagement with Cordina.
Daniel Cordina
Mr Cordina is the general manager of Cordina. He deposed that he organised a meeting with Mr Vij on 25 August 2011 (and not 24 August 2011 as deposed to by Mr Vij in his affidavit), which was also attended by Ms Gerbasi and Mr Wang. Prior to that meeting, Ms Gerbasi informed him that she had just observed Mr Vij taking photographs of the factory.
Mr Cordina deposed that during the meeting the following conversation took place:
Mr Cordina:Sumer, why did you put posters up in the factory?
Mr Vij:So that workers are aware of their rights.
Mr Cordina:The company’s policy is that the noticeboard is to be used for updates from management. It is not for staff to use. Our employees are also aware of their rights through our company policies. We do not condone any human rights abuses in our organisation.
Mr Vij:I understand.
Mr Cordina:I am aware that you have also been taking photographs of the workplace. This is not permitted as our operational processes are confidential. You must not take any more photographs.
Mr Vij:Fine, but you know, the other day Mary swore at me and Mr Mario came down and he was swearing at me too.
Mr Cordina:We don’t condone that. What we will do is further investigate the situation and if appropriate Mario and Mary will be warned in respect of their obligations.
Mr Cordina denied that he told Mr Vij that he would lose his job if he continued to take photographs or put up posters on the noticeboard.
Mr Cordina deposed that he had another meeting with Mr Vij and Ms Gerbasi on 12 September 2011. He deposed that in the fortnight prior to that second meeting he and Ms Gerbasi had discussions about multi-skilling some of the factory’s temporary labour hire workers. These workers could then be moved around the factory as needed and Cordina would not have to request new workers each time a particular need arose. Mr Cordina deposed that the workers he and Ms Gerbasi chose were all identified as having the potential to take on supervisory positions in the future. He deposed that, at the time, they identified five or six possible workers, including Mr Vij.
During the meeting on 12 September 2011, Mr Cordina and Mr Vij had a conversation to the following effect:
Mr Cordina:Sumer, I have followed up on your complaint against Mary and Mario. I have spoken to them and they deny saying anything abusive to you. However, I have cautioned them against making any comments which may be discriminatory or offensive.
Mr Vij:I am glad that you have done that.
Mr Cordina:Going forward, we are also going to require some of our workers to learn different skills. That way we can place them in different sections of the factory as a need arises or where workers experience difficulty working together.
Mr Vij:I am happy to learn new skills. So you know, I also require the 13th of September off from work for personal reasons.
Mr Cordina:That’s fine. When you return to work on the 14th please see Gary so you can be allocated some new duties.
Mr Cordina said that he knew nothing about Mr Vij’s FWO claim for underpayment and he did not know if Cordina had made a $2,700 payment to him.
Applicant’s submissions
Mr Vij submitted that he had had no contact with Bai Li Food Services since he started to work at Cordina and had understood that ABC Staff Hire was a recruitment firm finding workers for businesses to employ. He submitted that he had thought when he saw references to Bai Li Food Services on his pay slips that that company was in some way related to Cordina and paying him on behalf of Cordina. He went on to submit that, in fact, that was the case because the money he was paid was paid to Bai Li Food Services by Cordina and thus the latter company was his indirect paymaster.
Mr Vij submitted that a relationship of employment between him and Cordina could be discerned from the fact that he had worked in Cordina’s factory, had been supervised by Cordina staff, had taken instructions from Cordina staff and was told by Cordina staff when and where to work.
Mr Vij submitted in the alternative that if he was not a Cordina employee he was a prospective Cordina employee. He submitted that as he had been enticed to work diligently by the possibility of full-time employment with Cordina, he was thus prospectively one of its employees.
Mr Vij referred to the other questions posed for separate determination but made no detailed submissions in relation to them.
Consideration
Question 1 – Was the applicant an employee of the respondent?
Mr Vij’s case was principally based on his perception of his relationships with Bai Li Food Services, ABC and Cordina. Certain features of his time with the latter company do suggest something like an employment relationship but employment of one party by another is based on a contract and Mr Vij failed to identify when a contract of employment was made between him and Cordina and what its terms were. Instead, the evidence, most particularly his pay slips and PAYG summary, indicates that Mr Vij was employed by Bai Li Food Services.
It appears that the nature of Mr Vij’s relationship with Bai Li Food Services was not as clear as it could have been but I conclude that when he was accepted by ABC as a worker Mr Vij was aware that he was not being employed by “the factory in which [his] work [was] performed”. The fact that Mr Vij may have understood at that point that it was ABC which was employing him, rather than Bai Li Food Services, may possibly have some effect on the nature of his relationship with those two companies, but does not affect his relationship with Cordina. The facts disclose that Mr Vij entered into a contract of employment with ABC or Bai Li Food Services but not with Cordina. Further, the fact that Cordina exercised some level of day to day control over Mr Vij’s activities in its factory does not transform a relationship which was non-contractual into one which was: Wilton v Coal & Allied Operations Pty Ltd (2007) 162 IR 264 at 347 [179] and 348 [181].
For these reasons, the answer to the first question is “no”.
Question 2 - Was the applicant a prospective employee of the respondent?
Mr Vij’s evidence concerning the nature of the inducement held out to him to be an effective worker changed during the course of his evidence from an opportunity to be employed by Cordina instead of by Bai Li Food Services to an opportunity to be employed by Cordina as a permanent rather than to continue to be employed by it as a casual. I have already concluded that Mr Vij was an employee of ABC or Bai Li Food Services and not of Cordina. I further conclude that Mr Vij was not a “prospective employee” of Cordina in the sense in which that expression is used in s.341(3).
The Macquarie Dictionary (5th ed), relevantly defines “prospective” as:
1. of or in the future. 2. potential; likely; expected.
The Court was not taken to any authority which discussed who would fall within the class of persons described in the FWA as a “prospective employee”. However, the sense in which that expression is used in ss.341 and 342 suggests that it refers to a person whom a second person, the prospective employer, is considering for employment. In particular it appears to presuppose that some form of application for employment has been made such that it would be possible for the prospective employer to contravene the FWA by refusing to employ the prospective employee or by discriminating against him or her in the terms on which employment was offered.
Further, and more generally, the expression implies a substantial degree of proximity such as to exclude persons who might yet apply for employment or be invited to consider employment with a particular employer but at the relevant time were not yet negotiating in relation to such a possibility: Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186 at 193 [22] and 194 [30]-[31]; Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 at 444-446 [20]-[22], [25]-[28]; Twentieth Superpace Nominees Pty Ltd v Transport Workers’ Union (2006) 156 IR 323.
I conclude that Mr Vij’s relationship with Cordina was never more than as an employee of one of its contractors which supplied it with temporary workers as required. Although the inducement of permanent employment might have been held out by Cordina to its contractors’ employees, there was no evidence that Mr Vij had been offered such employment or even invited to apply for it. Nor did Mr Vij say that he had applied to Cordina for employment by it. In those circumstances, there is no basis to conclude that any employment by Cordina of Mr Vij was realistically in prospect, or even under consideration.
In those circumstances, I find that Mr Vij was not a prospective employee of Cordina and thus the answer to the second question is “no”.
Question 3 - Could the respondent be taken to have contravened a civil remedy provision?
The third question was posed for determination in circumstances where I found that Mr Vij was neither an employee nor a prospective employee of Cordina. As explained at the hearing, the question asked whether Cordina could be taken, by virtue of s.550 of the FWA, to have contravened a civil remedy provision of the Act.
Section 550 provides:
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
The task posed by the third question is not to determine whether Cordina might have committed some contravention which has not been identified by the applicant but to determine whether Cordina could have accessorial liability for a contravention committed by someone else.
In order for a person to have accessorial liability under s.550(2) of the FWA he or she:
·must have knowledge of the essential facts constituting the contravention;
·must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient in cases of wilful blindness; and
·need not know that the matters in question constituted a contravention: see Guirguis v Ten Twelve Pty Ltd [2012] FMCA 307 at [149]-[154].
Consequently, the first step in determining whether Cordina might have some accessorial liability by reason of s.550 is to determine whether there has been a relevant contravention by another person for which Cordina might have liability of that sort. Mr Vij did not attempt to identify one and, in the absence of an adequately articulated allegation of such a contravention, there is no proper basis on which the Court could find that Cordina is to be taken to have contravened a civil remedy provision of the FWA by reason of s.550 of that Act. Consequently, the answer to the third question is “no”.
Question 4 - If the answer to 3 is affirmative, what civil remedy provision?
Not necessary to answer.
Conclusion
I answer the questions posed for separate determination as follows:
Question 1: No.
Question 2: No.
Question 3: No.
Question 4: Not necessary to answer.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 15 June 2012
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