Wang v Odyssey Trading Pty Ltd (No 2)
[2021] FedCFamC2G 363
•17 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wang v Odyssey Trading Pty Ltd (No 2) [2021] FedCFamC2G 363
File number(s): MLG 2554 of 2019 Judgment of: JUDGE BURCHARDT Date of judgment: 17 December 2021 Catchwords: INDUSTRIAL LAW – Applicant claiming substantial amounts of underpayments of wages and overtime based on the General Retail Industry Award – Court accepting applicant worked the hours she asserted – whether applicant estopped from claiming overtime where claims not made during the employment – whether applicant became independent contractor in 2017 – whether applicant should have been paid for time spent overseas – whether employer entitled to set-off “bonus” payments – whether director of the employer was involved in contraventions within meaning of s 550 of the Fair Work Act – Court accepting applicant became independent contractor in 2017. Legislation: Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth)
General Retail Industry Award 2010Cases cited: Appeal by Joseph [2013] FWCFB 8539
Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 8) [2010] FCA 1197; 275 ALR 293
Fair Work Ombudsman v Devine Marine Group Pty Ltd & Ors [2014] FCA 1365
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
James Turner Roofing Pty Ltd v Peters [2003] WASCA 28
Jones v Dunkel [1959] HCA 8
Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99
Maciver v Hilton Nursing Home Pty Ltd [1999] NSWIRComm 152
Parker v HG Innovations Pty Ltd [2021] FCA 1051
Poletti v Ecob (No 2) [1989] 31 IR 321
Ray v Radano [1967] AR (NSW) 471
Wang v Odyssey Travel Pty Ltd (No.2) [2020] FCCA 3218
WorkPac Pty Ltd v Rossato [2021] HCA 23Division: Division 2 General Federal Law Number of paragraphs: 237 Date of last submission/s: 9 November 2021 Date of hearing: 3-9 November 2021 Place: Melbourne Counsel for the Applicant: Mr Banasik Solicitor for the Applicant: Esser Legal Counsel for the Respondents: Mr Levine Solicitor for the Respondents: Maciel Pizzorno & Co ORDERS
MLG 2554 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIMEI WANG
Applicant
AND: ODYSSEY TRADING PTY LTD
First Respondent
CHRISTINE ZHANG
Second Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.The matter be listed to the Melbourne Registry for a case management hearing before Judge Burchardt on 21 December 2021 at 9.30 am.
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 BURCHARDT
INTRODUCTION
In this proceeding, the applicant, Jimei Wang, seeks remedies arising out of her employment with the first respondent which took place as she puts it between 2013 and 2019. She says she was not paid her wages, including overtime and penalty rates, in accordance with the relevant applicable award. She also claims unpaid annual leave.
The first respondent Odyssey Trading Pty. Ltd. was her employer, and Christine Zhang (I will refer to her in this way as that is everybody else has done), is the sole director and shareholder of Odyssey Trading. The applicant says Ms Zhang was involved in the various contraventions of the Fair Work Act 2009 (Cth) that arose from the alleged underpayments within the meaning of section 550 of the Fair Work Act.
The respondents say that part of the applicant’s claim is time-barred (something the applicant herself accepts). They admit that Ms Wang was an employee between 2013 and 2017, but say that she was not underpaid at all during this period. They further say that the applicant was an independent contractor from 2017 until 2019, so no wages or annual leave was payable.
For the reasons that follow, I have decided that the applicant has made good her claims for the period 2013 to 2017 but she was an independent contractor from 2017 to 2019. Since both parties have conducted this proceeding with an intensity of some note, and since I think appeals and cross-appeals are highly likely, I will endeavour to make findings in the alternative in the event it is ultimately found that Ms Wang was not an independent contractor between 2017 and 2019.
THE APPLICABLE AWARD
The applicant’s amended statement of claim filed 11 December 2020 (which was itself amended during the running of the trial) pleads that at all material times, the General Retail Industry Award 2010 applied to the applicant’s employment. The respondent’s defence to that statement of claim admits that “an award” applied to the applicant when employed by Odyssey Trading. It does not say which award it was.
Counsel for the applicant traversed the identification of the award in final submissions (P256-257). It is clear from the decision of the Fair Work Commission Full Bench in Appeal by Joseph [2013] FWCFB 8539 and in particular at [28] that:
the work of a travel consultancy in selling and making travel bookings on behalf of clients falls within the description of the retail industry because it involves selling goods and services to final consumers for personal or business consumption. Further, we are of the view that the broad classifications in that award extend to the travel consultants
The decision also noted that certain aspects of work done by travel consultants might be considered clerical.
In her evidence, Ms Zhang said:
For every employee since 1997, we always followed the award.
And when cross examined, she was asked at P178:
The award that you meant was the General Retail Industry Award; is that correct?---Yes.
She went on to confirm that the rate that was paid was the rate prescribed since 2010 by the General Industry Retail Award 2010.
In these circumstances, it is clear that the General Retail Industry Award 2010, was the relevant applicable award at all times material to Ms Wang’s employment.
WHAT WAS THE CLASSIFICATION IN WHICH THE APPLICANT WAS EMPLOYED?
The applicant has pleaded that she was classified as a retail employee level 7, or alternatively, level 4. The respondents accept that during the period in which they admit the applicant was an employee, she was a level 4 employee.
I refused yet further application to amend to include level 6 during the running of the trial. I permitted the amendment to include level 4 on the footing that the respondents defence put her level of seniority in issue.
The award itself is exhibit SAM8 to the affidavit of the solicitor for the respondents sworn on 18 August 2021. Pursuant to clause 16.1, all employees must be classified according to the structure set out in schedule B classifications.
The classification specifications for retail employee level 4 is at pages 61-63 of the award. Some of them are plainly not applicable to the sort of work the applicant was doing. They include, however, inter alia, clerical functions level 2. By clause B.4.4, the clerical officer level 2 characteristics include:
This level caters for the employees who have had sufficient experience and/or training to enable them to carry out their assigned duties under general direction.
Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations, detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
The indicative duties at this level are at B.4.5 and may include:
Reception/switchboard duties as in Level 1 and in addition responding to inquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services, and/or where presentation and use of interpersonal skills are a key aspect of the position.
Operation of computerised radio/telephone equipment, micro-personal computer, printing devices attached to personal computer, Dictaphone equipment, typewriter, and the like.
It is easy to see why the respondents have conceded that the applicant satisfied the level 4 classification.
The classification of retail employee level 7 is described at pages 64-65 of the award. The level is by clause B.7.1:
Performing work … at a higher level than a Retail Employee level 6.
By clause B.6.2:
Indicative job titles which are usually within the definition of a Retail Employee Level 6 include
(a)section/department manager with five or more employees (including self),
(b)manager/duty manager in a shop without departments, sections (may be under direction of a person not exclusively involved in shop management).
By clause B.6.3:
(a)Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work. Employees require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.
(b)Employees may be required to give assistance or guidance (including guidance in relation to quality of work and that may require some allocation of duties) to employees at Levels 1 and 2 and be able to train such employees by means of personal instruction and demonstration.
I set these out because axiomatically, level 7 is at a higher level than level 6.
Pursuant to clause B.7.2, indicative job titles within the level 7 band include visual merchandiser (diploma) and clerical officer level 4.
By clause 7.3, clerical officer level 4 includes:
(a)Employees at this level must have achieved a level of organisation or industry specific knowledge sufficient for them to give advice or provide information to the organisation and clients in relation to specific areas of their responsibility.
(b)Employees would require only limited guidance or direction and would normally report to more senior staff as required. Although not a pre-requisite, a principal feature of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordinating workflow, checking progress, quality of work and resolving problems.
(c)Employees exercise initiative, discretion and judgment at times in the performance of their duties.
(d)Employees are able to train employees in Clerical Levels 1–3 by personal instruction and demonstration.
Pursuant to clause 7.4:
Indicative typical duties and skills at this level include:
(a)providing secretarial or executive support services that may include maintaining executive diary; attending executive or organisational meetings and taking minutes; establishing or maintaining current working and personal filing systems for executive; answering executive correspondence from oral or handwritten instructions; or
(b)preparing financial or tax schedules, calculating costings or wage and salary requirements; completing personnel or payroll data for authorisation; reconciliation of accounts to balance; or
(c) giving advice or providing information on any of the following:
(i) employment conditions; or
(ii) workers compensation procedures and regulations; or
(iii) superannuation entitlements, procedures and regulations; or
(d) applying one or more computer software packages
The applicant’s evidence about what sort of work she did is at paragraph 7, in her trial affidavit. She deposed:
I started as a Travel Consultant at the Odyssey Travel office at 256 Swanston Street, Melbourne, 3000. When I began, I introduced domestic tours to clients. Sometimes I picked up phone calls and spoke to clients on the phone. In the very beginning, the first two months, I only booked the domestic tours and some Australian inbound tour, like the Great Ocean Tour and Sydney Tour and took telephone calls.
It should be noted that these duties were performed between 3 June 2013 and 5 August 2013. These periods are not within the scope of the dispute in this case, as employment prior to 5 August 2013 is time barred as both sides agree.
At paragraph 17, the applicant deposed:
At about this time (which is 5 August 2013 onwards), I started to book all the tickets including domestic and international air tickets. I also started to book travel across the whole of Australia and New Zealand. I saw clients face to face. Most of the clients came to the office. Sometimes, after working hours some clients gave me a call on the phone - such as in an emergency when the flight was delayed.
At paragraph 18, she said:
From this time, my duties were:
(a)to speak to clients who came into the store in person or who called the store;
(b)to give the client advice about flights to book and what tours to go on;
(c)to organise the tour and do quotation of the tour;
(d)use the computer system to open a file for the client;
(e)use a computer system to book domestic flights;
(f)use a computer system to book international flights;
(g)use a computer system to reissue domestic flights;
(h)use a computer system to reissue international flights;
(i)use a computer system to book domestic tours;
(j)use a computer system to book domestic accommodations;
(k)use a computer system to book domestic group tours;
(l)to talk or send emails or electronic messages to people at the airlines or tour places to ask for information or make bookings;
(m)to create a record of the bookings;
(n)to send to the client the details of the bookings;
(o)to receive, process and keep a record of payment for the client's booking;
(p)to help clients to make changes to bookings; and
(q)to help clients if things went wrong, like delays to flights or tour cancellations to give the clients advice about flights to book and what tours to go on;
At paragraphs 19-22, the applicant deposed:
Clients asked me to help them apply for a visa and fill in their application form, which they signed. Sometimes clients were not satisfied with the tour guide service, I had to call the tour guide.
Odyssey gave me an email address to use to do my work. I worked using an Odyssey computer and telephones. Other than when I took calls at home on my personal mobile, I did all my work from the Odyssey office.
To do my work I used computer systems, the internet and the messaging app called WeChat.
There was software which was developed by Odyssey to book local tours, Sydney bus tours, International group travel and visa applications. I used the Sabre Travel Network software in the computer to check the airlines, prices and departure cities or times. When clients came in to check the cheapest and most convenient airline to their destinations, I used Sabre to compare which one was the best choices for clients and started the booking. To do the booking I needed to remember the formats, function, city codes and airline codes. Sabra would give a quotation and due day to pay for this price. When clients paid for tickets, Sabre would create a SAM number automatically. SAM would include the clients name, airline and how much need to pay. I issued the tickets via a supplier which is called Select Travel Group (Express ticketing).
At paragraph 23-24, the affidavit continued:
I also booked accommodations through different websites, such as booking.com.au, Expedia.com.au, ETA booking and others. I was given a username and password for these websites.
I used WeChat to talk with clients. Clients sent me messages on WeChat to ask for the quotation of the tours or air tickets. Sometimes clients wanted to cancel their plan without cancellation fees, and they contact me on WeChat. I had to explain the policy of hotels or airline about it. Some clients even texted messages and let me call hotel reception to ask for one more blanket, or bath towels - things like this. Sometimes Mr Shen sent me tasks to do by WeChat.
At 25-26, the affidavit continued:
Christine gave me some extra jobs. She wanted me to organise her friends' tours and tickets. I was also given paperwork to do, such as notices to other staff.
I was supervised by Christine and General Manager, James Shen. Christine or James would tell me when I did something wrong. Christine or James would tell me when I was to work.
At paragraph 27, the applicant deposed:
In January 2014, I was Senior Travel consultant. I was given a business card. I do not have a copy of the card from that time. I have one from later, in 2018.
Paragraph 28 of her affidavit, the applicant deposed that throughout 2014 she started to do the training for new staff, teaching them how to book tickets and tours and group tours, especially the overseas tickets and tours.
At paragraph 87, the applicant deposed that, in October 2017, having been transferred to the Glen Waverley office:
I still did the same duties as before, and some new ones. I had to do a daily report for the branch. I had to prepare this report of the sales from that day and send it to Head Office. I did this every day.
At paragraphs 88-89, she deposed to collecting receipts at the end of the day and putting them into a report and also undertaking bookkeeping and sending money to the bank. At paragraph 91, she deposed that, from March 2018, she worked alone most of the time, and, at paragraphs 92 and 93, she deposed to training two new colleagues. Paragraph 98: she deposed to training another employee, Lulu, in September 2018.
Under cross-examination, the applicant confirmed that when she commenced work for the first respondent in June 2013, she had no experience working in travel agencies (P62). She had never operated any business, and she said that, at the time, her command of English:
…is okay as far as working related topics, and my reading and writing was better than my listening and speaking.
She conceded that she needed training when she began work at Odyssey but said:
I was trained, but only for half an hour to familiarise with the operation of different working softwares and before I can officially start.
She said at P63:
In the beginning, I had to ask for the assistance from other staff because I didn’t know everything.
When asked for how long she had to ask for assistance from other staff, she said:
throughout the whole career there were always new knowledges that I’m not – I didn’t know, and I would need assistance of – assistance with. Everyone working in the office would, from time to time, ask assistance – ask questions or need assistance from other staff members, and even someone who has been working in the travel industry for … would come to ask me for assistance.
The applicant confirmed that, throughout her time at Odyssey, she would arrange travel bookings and itineraries and always performed that as part of her role. It was put to her that she could not train anybody in 2013, but said at P63:
Since August 2013 I started training new staff, but it was – it was not relating to booking flights. All it was about was about bookings for one-day tours. … I started training staff in relation to flight booking for Australian domestic flights, such as booking flights for Jetstar or Tiger Airlines, only to teach them how to follow the steps on the website, but I didn’t start to train anyone in relation to booking for International flights.
At P64, the applicant confirmed that her title between 5 August 2013 to December 2013 was travel consultant and that there were senior travel consultants working next to her. When asked if those persons trained her, she said:
There was never formal training sessions … I only needed to ask for assistance or ask any particular questions for issues that I was not entirely clear from time to time. But there was never a particular person was designated to train me. I haven’t finished it. … we’re facing the customers. I have to learn every day by myself, and I will also try hard to find anyone who’s willing to answer my questions. Not everyone in that office was willing to help a new staff … That’s why I think I had little support in this job. Everyone seems so busy. They didn’t have time or didn’t have the will to ask questions – to answer questions or to help me. I had to teach myself how to do things.
When asked if that was for the period from August to December 2013, the applicant responded:
It has always been the case. Because not all the time that I could get the assistance if I want if I go to the manager or to management to ask for support.
The question of training new staff was returned to at P119. When asked what she did, the applicant responded:
During the training, I taught those people how to book domestic flights within Australia, about how to make booking with Jetstar and Tigerair. Also, I taught them how to make booking for day trips. Also, I taught them how to give codes for book tours. How to make booking for the group tours. Also, the training involves how to send confirmation of itinerary to the clients, sort of things like that. … it’s not a one-stop training sessions, it’s not intensive, but rather – this training did not happen intrinsically during a certain period, because not every day did we have new people come in. And also, I was busy with other tasks as well, so I could only train these people when I finished my tasks.
At P120, the applicant said in response to a question as to whether the new staff were trained by Mr Shen or Ms Zhang or someone else:
When the company recruited these people, they would from time to time ask me to train these people to do some other job training with these people, but they would ask me to teach these people what I’m doing now, and ask me to teach them how to do booking or the operations that I’m doing, something like that.
When pressed as to whether Mr Shen or Ms Zhang or someone else showed people how do it, she said:
I don’t know what’s happening before 2016. There was no assistant … training before that, and after 2016 Addison took the role of HR, and after that, we – the company had systematic training for new employees. But before that, the company didn’t have any onboarding – onboard training.
When it was put that she had not provided any formal training, the applicant responded:
I told those employees how to work properly.
She went on to say at P120 that, in 2018, by which time she had been transferred to the Glen Waverley office, where she was either working alone or was clearly the senior employee –
And in 2018, while I was working at – with the office, new employee called Jackie stayed at my office for a month. And during this period of time, I offered him systematic training every day, and I would report to Ms Zhang on the progress of training on a daily basis.
On the same page, the applicant confirmed that Ms Zhang directed other employees to train people as well. It would appear from P124 that, in 2018, the applicant may have trained several other employees who came to the Glen Waverley office.
The question of the applicant’s duties and her classification was, of course, dealt with in evidence by Ms Zhang. At P161, Ms Zhang said:
she said she need a job and she need fully trained. She have no idea of the business so we start training her, but, as you understand, you know, she’s –
The matter was returned to at P162, when Ms Zhang, who confirmed:
She was a good staff. She start from scratch, and she was doing well.
When asked as to the seniority of the applicant’s position in 2013 Ms Zhang was clear that she could not be senior and that the only senior position was in 2018. She said:
But she could hardly speak English, Because our duty you have to contact the airline wholesales, … they need good English too, and she can only handle some single day tours and speak to my Chinese clients, which is have a lot of … clients from universities, and she could not do those complicated tasks.
When asked as to whether she was junior, senior or in between, Ms Zhang said:
She was a junior and, as I say, she’s been here for many years and I can only assign.
When asked what the policy was in relation to training of new employees, Ms Zhang said:
Well, the city office we can only assign a new staff next to experienced staff and taking notes, learn and ask questions. We don’t – the orientation has to be a few days and what policies and what sort of general work is. Day tours very simple. Great Ocean Road take down the names, and then five minutes done. It’s some simple task she did, and then gradually she do more and more and she improved.
At P165, Ms Zhang was asked if the applicant ever handled any bigger groups, and the answer was:
No. No. She can’t. She needs to contact the – all the hotels and all the – no. She – just small groups like less than 10 people usually. Less than 10 people. Small coaches. Where to have big bus load, 150 people, that is no belong to her...
When asked if Ms Wang was made a senior travel consultant in 2014, Ms Zhang said:
No. Never. No. All the staff – all graduate from universities usually accounting department and she is one with no degree.
She went on to say that, in 2014, Ms Wang’s duties did not change and she was just doing day tours. She believed that Ms Wang had been given a business card in 2018, when she moved to Glen Waverley, because this was a new address, and that Ms Wang had put “senior consultant”, and she agreed. It is clear from an answer given at P173 that once Ms Wang was paid on the basis of an ABN:
She can work out her own hours, she will invoice us with the hours and we will pay accordingly.
Ms Wang’s pay was increased $45,000 to $50,000 so she would pay her own superannuation. From answers given at P175, it is apparent that the applicant worked effectively unsupervised at Glen Waverley because it was very rare for Ms Zhang to go there.
At P215-P216, in cross-examination, Ms Zhang explained the difference between day tours and domestic tours, the latter being interstate. She confirmed that Ms Wang started doing domestic tours, gradually learning and doing the tours. She confirmed that Ms Wang was a good staff member at the very beginning. She confirmed that she improved over time.
She was then taken to paragraph 18 of the applicant’s trial affidavit, which I have set out earlier. Counsel put at P217 that Ms Wang, from August 2013, could perform all of the duties in paragraph 18 of the affidavit. Ms Zhang’s answer was:
2014, not completely, because the travel for international she is incompetent. She can’t even have all the – we have to learning a system, Sabre, or – at that time is called Sabre. That’s a standard of international booking system. You have to have a very good knowledge with three-letter code and … she just can do simple point to point. Like Melbourne to Shanghai, Melbourne to Beijing, that sort of international – yes. That’s the basic where you have to – to be capable of doing that to be a travel consultant.
Ms Zhang then confirmed that you learn how to do point-to-point international flights in the first week, but she went on to deny decisively that Ms Wang was given the title of senior travel consultant in January 2014.
The above is the substantive evidence as to the work the applicant did. At which level can Ms Wang be said to have been performing? As earlier noted, of course, it is not disputed that she was a level 4 employee.
Clearly, when Ms Wang started, she was completely inexperienced in the travel industry. Nonetheless, the picture that emerges for me from all the evidence is that employees at Odyssey Trading were, as it were, thrown pretty much in the deep end. They had some very brief introductory orientation as to the sort of computers and equipment that Odyssey used, and training appears to have been very much, on an ongoing basis, that you ask somebody a bit more senior than you to get guidance with particular difficulties. Given that Ms Zhang concedes that the applicant was, at least at the commencement, a good employee, it seems to me, to quote clause B.4.4 of the award, that she was an employee who:
…had sufficient experience and/or training to enable them to carry out their assigned duties under general direction.
The sort of duties she was performing clearly encompassed a number of the matters in clause B.4.5, including:
Arranging routine travel bookings and itineraries and making appointments.
And:
Providing general advice and information on the organisation’s products and services
although it should be noted that what she was doing, in my view, encompassed a number of the other matters set out in that subclause.
I do not accept Ms Wang’s assertions that she was made a senior consultant in January 2014. She had only been employed in the industry for four months. True it is that it seems that she too, from a relatively early stage, started to help other employees who might have had queries. This was just part of the way in which Odyssey ran its business. The clear picture that emerges from the evidence, taken as a whole, is that this was an extremely hardworking, driven and demanding environment in which people were given a job and told to get on with it.
Inevitably, as time went by, the applicant perhaps did rather more by way of training more junior employees, and I accept that this is so. Nonetheless, it was Ms Zhang’s evidence that, effectively right from almost the start, the applicant was doing both day tours and then after a while, point-to-point international flights. She plainly took on doing what are described as domestic tours at some relatively early point.
Did Ms Wang ever advance to the level of retail employee level 7? To do so, she would need to meet clerical officer level 4. I note that, pursuant to clause B.7.3, she:
…would require only limited guidance or direction and would normally report to more senior staff as required.
It is provided in that clause:
Whilst not a prerequisite, a principal feature of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, coordinating workflow, checking progress, quality of work and resolving problems.
They are also:
…able to train employees in clerical levels 1 to 3 by personal instruction and demonstration.
Ms Wang’s work does not that readily, it seems to me, fit the indicative typical skills described in clause B.7.4, save as to part – in as much as she must have been creating new files and records and identifying and extracting information from internal and external sources. Nonetheless, these are only indicative typical duties; they are not expressed as being all inclusive.
Doing the best I can in what is inherently an area of imprecision and globalised assessment, it seems to me that Ms Wang graduated, as it were, to level 7 when she went to Glen Waverley in October 2017. Once there, she was essentially on her own for a lot of the time, and Ms Zhang very rarely went there. She was running the office on her own and trained a number of more subordinate employees from time to time. In my view, she was a level 7 employee from the time she was in Glen Waverley. The extent to which this ultimately operates on the matters in dispute, of course, is qualified by the fact that, during this time, and indeed previously, she is asserted by the respondents to have been an independent contractor.
To sum up, therefore, the applicant was employed as a level 4 employee from 2013 until she went to Glen Waverley in 2017. Plainly, she may have been very much more towards the bottom of level 4 when she commenced and rather more towards the top when she went to Glen Waverley, but the case has not been fought out on the basis of any intermediate classifications. As earlier indicated, I refused the last-minute endeavour to seek a level 6 classification as this was not foreshadowed in any way beforehand and, in my view, would not have been fair to the respondent. It is very possible that Ms Wang may have advanced, for example, to level 5 at some point, but that is not the basis upon which this case is being conducted.
HOW MUCH WORK DID MS WANG ACTUALLY PERFORM?
This aspect of the matter was a major battleground in this trial. Much of the battle was fought out in what, in my view, were unproductive arguments about documentation, to which it will be necessary to return. Contrary to the emphasis given to the matter by the respondents, in my opinion, the primary evidence about the hours that the applicant worked is indeed that in her affidavit material itself. That is, as it were, her first-person narrative. In her trial affidavit, the applicant deposed (paragraph 8) that, at the start, Ms Zhang told her she had to work 9.00 am to 6.30 pm, six days per week, with a 30-minute lunchbreak, which she did not always get. She deposed (paragraph 10) that she worked overtime almost every day:
On Monday to Thursday, I finished work at 7:30 or 8:00pm. On Friday and Saturdays, I worked until 7:30pm or 9pm. This overtime was in the office. I did not receive any pay for working these extra hours.
Paragraphs 12-13: for the period governing 5 August to December 2013, the applicant deposed:
From 5 August 2013, I worked an 11-day fortnight. One week, I worked six days per week and the next I worked five days per week. My working hours did not change in this period. Christine said I had to work 9am to 6:30pm. I had 30 minutes for lunch, but I often did not get a break.
I still worked overtime. On Monday to Thursday, I finished work at 7:30 or 8:00pm. On Friday and Saturdays, I worked until 7:30pm or 8pm. This overtime was in the office. I wrote down all the times I did this overtime.
At paragraphs 15-16, the applicant deposed:
Christine asked me to work extra days on the weekends, because I was the only person who did not have family in Australia.
I continued to take phone calls or do work on my days off. Sometimes Christine called me directly to ask me to do something and sometimes Christine gave a client my personal mobile phone number and if the client called me on that number, I did the work. This happened with things like changing flights or because a flight was cancelled. Or I did a travel plan and quotation for them. I did not get paid any1hing for this work. I wrote down all the times I did this.
Dealing with events in 2014, the applicant deposed at paragraph 28:
My work hours continued the same throughout 2014.
At paragraph 31, she deposed:
I continued to take the phone calls on my days off or do work at home on these days. This was the same as I wrote in paragraph 16 above. I wrote down all the times I did this work.
Dealing with 2015, the applicant deposed at paragraphs 36-39:
I started to be rostered for a ten-day fortnight. I was rostered on Tuesday to Saturday each week. The hours were still 9:00am to 6:30pm, with 30 minutes for lunch.
I continued to work overtime. I worked at least one extra day each fortnight in the office on the weekend. Sometimes I worked two days in the office on the weekends in the fortnight.
From February 2015, if I worked on the weekend, Christine would give me $100 cash. I got $100 per day for the weekend no matter how many hours I worked.
Sometimes, I also did work at home. This was the same as I wrote in paragraph 16 above.
Dealing with events in 2016, the applicant deposed at paragraphs 48 and 50:
In January 2016, I am rostered on Mondays again. I am rostered to work Monday to Friday, 9:00am to 6:30pm. I was told to work on Monday by Edison Wang in HR. I am still working overtime. I wrote down all the times I did this overtime.
I am still working on my days off. I wrote down all the times I did this work.
Paragraph 54: the applicant was dealing with working in head office in May 2016 and said:
I am still working in the office on my days off. I wrote down the times I did this work. I am also still doing work at home, as I describe in paragraph 16 above. I wrote down the times I did this work.
Having deposed to events in late 2016 and 2017, which, according to the applicant, involved her being under severe pressure and seeking to work less time, and the basis upon which she got her ABN, the applicant deposed at paragraph 65:
After I got the ABN, I worked four days per week. I was told the days to work by the General Manager, Mr Shen. Mr Shen said I was to work Friday, Saturday, Sunday and Monday in the Swanston Office from 9:00am to 6:30pm. I worked the same days every week, as told to me by Mr Shen.
At paragraphs 73-76, she continued:
I worked overtime. Sometimes I stayed late after my shift finished at 6:30pm and worked until 7:30pm or later. I did not get paid for working late.
Sometimes I worked extra days. If I worked an extra day, I put it on the invoice.
Sometimes I worked on a public holiday. I was paid the same amount per day, even if it was a public holiday.
Sometimes I did work at home again. I was not paid for this work. I wrote down the hours I did this work.
At paragraph 84, the applicant deposed:
From 25 September 2017, I worked full time again. Christine said it was a legal thing to pay ABN if I was part time. But after September 2017, I was full time so I thought I should be paid as PAYG, so I asked for this.
At paragraph 90, detailing her work at Glen Waverley, the applicant deposed:
I was told by Mr Shen to work six days per week from 9:00am - 6:30pm. I had a thirty-minute lunch break, but sometimes I worked alone so I did not get to take my lunch break.
At paragraphs 134-137, the applicant deposed:
I kept a record of the hours I worked at Odyssey. I wrote this down on pieces of paper, until January 2018 when I wrote them in an excel spreadsheet. Sometimes I wrote the hours down on the same day, sometimes I wrote them down during the same week. I wrote down my daily hours and my overtime hours. I kept all of these. Annexed hereto and marked JW-16 is a copy of all the records I kept of my working times other than February 2014 to June 2014.
In August 2020 I used the records to do a spreadsheet for this case about my hours. After I wrote the hours in the spreadsheet, I lost the pieces of paper for February 2014 to June 2014. Annexed hereto and marked JW-17 is a copy of the spreadsheet I made in August 2020 for February 2014 to June 2014.
Sometimes when I was on annual leave, I worked at home for most of the day. On these days, I wrote down in my records that I worked a normal day. I was not thinking at the time that I would be making a claim for underpaid wages, so I did not keep the precise hours on these days. Now I cannot remember the exact number of hours that I worked on these days. Where I cannot remember the number of hours I worked, I have not made any claim for the hours I worked.
Odyssey only gave me payslips when I asked for them. I asked only two or three times while I worked for Odyssey. Other than when I asked, I was not given any payslips. Annexed hereto and marked JW-18 is a copy of the payslips I received. .
So much for what the applicant’s affidavit said. When the matter came to oral evidence in cross-examination, the applicant was taken initially to part of JW16, which was the records the applicant had said she had kept of her working hours. She was first asked when she created the document at page 203 of her affidavit. She said she created this in January 2018 (P44). She said she updated the document every day or every week. She said the last time she updated the document should be the end of January, but she was not quite sure of the last time she updated. She was then asked what computer program JW16 was entered into, and said that she used her previous Macbook in Excel form (P45). She was then cross-examined about page 204 of her affidavit. I would point out that when one looks at page 205, it is obvious that page 204 is simply a photocopy of two different documents, of which the right-hand column was simply the first column on page 205.
It was then put that the first time that she disclosed these documents in JW16 was in her affidavit, 16 June 2021. She conceded that that was right. She was then taken to her affidavit of 21 August 2020. She was cross-examined about paragraph 7 of that affidavit, in which she had deposed:
I confirm all these calculations are true and correct and are derived from information set forth in the award and derived from a personal work diary stored on WeChat in Mandarin. This diary was also used by me to provide monthly performance data to the respondent. Every day I would record the work done on an Excel spreadsheet, which in turn would be tabulated as a monthly performance report.
The applicant confirmed that the WeChat history and chatting history on WeChat were in Chinese, because most of the clients were Chinese-speaking clients talking Mandarin (P51). She was then cross-examined about paragraph 4 of her affidavit sworn 29 September 2020, in which she had deposed:
In my earlier affidavit I referred to a work diary that I kept for the entire period while I was working for the respondent. The diary is electronic. I kept the diary as a matter of strict routine as a personal record of my hours worked, etc.
At P52, the applicant clarified the matter and said:
So the tables that I attached to the affidavit – it was not the working diary I was talking about; it was just for clarity purposes and for people to read.
She confirmed that JW28 to that affidavit was:
This is recording including dates and working time and also description of the job.
At P53, she confirmed that that document was created in July/August 2020, before the filing of the affidavit. When asked how she had remembered the entries in JW28, she said, at P53:
I’ve kept an original personal working diary of the … it contains information in relation to a day to day work.
At P54, she confirmed that the spreadsheets:
This was made based on my original diary, it must be correct.
At P57, Counsel pursued the matter further. He put it to the applicant that the spreadsheets were not in Mandarin but were attached to the affidavit of 29 September 2020, and the applicant confirmed that was correct. She confirmed that her personal diary was partly in Chinese and partly in English. She confirmed that the information in the spreadsheet was true, but because of the language used, some of the English expressions might not be correct. She was asked, at P58, where her electronic diary referred to in the affidavit of 29 September 2020 was, and then said:
I need to take a look. I have several versions of electronic diaries. They are all in the form of Excel spreadsheets, one of which is in a company that would be sent to the relevant personnel regularly, and it was saved in the company working email box.
She went on to explain that there were various electronic spreadsheets. She then said, at P59:
I have everything backed up in the computer, but at the end of July this year, we had a burglar broke into our house, and my computer and mobile phone got stolen.
Questions then followed as to whether this was reported to the police, which the applicant said it was. Cross-examination then moved on to other matters.
Counsel turned to the question of overtime at P69 and put it to the applicant that Ms Zhang had told her that if she wanted overtime, she had to request it in advance. As the matter was plainly a new topic, I adjourned till the following day.
On the following day, Counsel returned to the question of overtime at P79. He put it that the annexures at JW20 were the applicant’s requests for payment for working overtime. The applicant answered, at P80:
I did write email to Min when I worked extra days. I also cc’d Christine, James, Addison, and other bookkeepers.
When asked if this was for the purpose of getting paid for the extra hours, the applicant said she was not happy for the day when Christine only paid her $100, and when pressed, said:
I had two purpose in writing emails. One of the purposes is to prove I did work extra hours. And the second one is to ask them to pay me the extra hours that I worked. They paid me some but not in full amount.
She was then asked why she had sent the emails in JW20, and then what was the office procedure in respect of overtime. The applicant responded:
At that time, Ms Jong (sic) encouraged employees to work extra days. I was the only single employee at the company, so Ms Jong hoped that I could come to the office and work the extra hours. She said she would pay me $100 for extra days – per day – for extra days that I worked. I had been working very hard, and I didn’t have anything to do at home. That’s why I thought I might as well come to the office and work for extra days.
When asked how she would be able to get the extra $100, she said:
I would write an email.
Counsel pressed her as to her evidence that she did not always write an email to get paid, and the applicant said:
Because Ms Jong didn’t approve the pay every time.
She went on to say:
Sometimes, Ms Jong requested me to come to office during the weekends because nobody was working in the office during the weekends. And sometimes I had to work overtime to finish all the jobs I had because there were lots of tasks. So under this circumstance, Ms Jong wouldn’t pay me any money for the extra hours that I worked.
She then went on to say at P81:
When I was requested to work overtime, I would send an email.
She went on to say:
Sometimes, I worked – when I was supposed to finish a job by 6 pm, as a matter of fact, I worked until nine. She – because of the tasks. And if she did not approve this extra hours, in that case I wouldn’t write an email.
She said, on P82:
This happened on many occasions.
Counsel next turned to page 489 of the applicant’s affidavit. She confirmed that the email was sent on 5 February 2015. She said that she sent that email to prove she worked on the two days 25 January 2015 and 1 February 2015. Counsel put it to her that if she had worked between 25 January 2015 and 1 February 2015, she would have put it in the email, but the applicant responded that she was requesting to work on those two days, which is why she had put them in (P83). Counsel then took the applicant to page 175 of her affidavit, being part of exhibit JW16, and noted that on 26 January 2015, she had written down that she had worked from 9 till 7.30 pm.
When asked if she claimed she had worked overtime on that day, the applicant said:
This is the actual working hours that I did on that day (P84).
She said:
Because it’s a Monday and it’s not requested by Christine, so we just – so we just – we treat it as a normal working day. And I didn’t know if it’s a a public holiday, so I didn’t know if there was any special arrangement. That’s why we just treat it as normal working day or normal working hours.
When pressed, she said:
The hours I put on that page just means that I did work that many hours on that day.
She confirmed that this was in the office.
She made a similar assertion in relation to 28 January 2015. When further pressed, it has to be said that the applicant’s answers became non-responsive. She went on to say, at P85:
Just because I didn’t write an email to Min does not mean I didn’t work on that day. As I said at the beginning, sometimes it’s requested by Ms Jong, and she would approve the overtime. Sometimes, when she didn’t approve that overtime, I didn’t write to Min. I did work those hours that I claimed. I worked even on Christmas, on 25 and 26 December and there’s a camera, there’s a CCTV in our office, and if you check the CCTV footage, then you can see that I did enter into the office at the starting hour and I left the office at the hour that I claimed.
Counsel put it to the applicant that Ms Zhang had told her that if she was going to work any overtime, it had to be approved first. The applicant responded, at P85:
It’s not the case. It’s not me who needs to seek her approval for the overtime. It’s Ms Zhang who requested me to work overtime, and in another situation when I had excessive workload but I cannot finish during my normal working hours, I have to work overtime to finish those tasks.
She repeated, at P86:
When Ms Zhang requested me to work overtime, I wrote email to Min to record that.
She was then asked:
Did you ever request to work overtime for Ms Zhang, and she said no?
And the applicant responded:
Never. I never did that.
Cross-examination then turned to annexure JW16. When asked when she recorded the entries, she said:
I would make the entry when I finished the work on that day, or sometimes I would just make the entry when I finish off the work of a week... I didn’t send those records to Min, because Ms Zhang didn’t – wouldn’t approve such overtime. And other … from the company and did the same, but it was not approved by Ms Zhang.
When asked why she said it would not have been approved, at P87, the applicant said:
Ms Zhang never approved this kind of overtime, and never paid for this kind of overtime. And it’s a normal stage that she refuses to pay overtime of employees.
Counsel then asked:
So why did you actually do the overtime if you knew you were never going to have the overtime approved?
And the applicant responded:
Because I have a sense of responsibility to do the work I’ve been doing, and also, I want to be a better self.
In response to a question from the Court, the applicant said:
I never told Ms Zhang the specific number of hours that I had been working overtime. But I told her something like I’ve been working overtime recently. And also Ms Zhang was having the same office with me and she should be aware when I came to the – the time that I came to the office and the time that I left.
At P88, the applicant continued:
The reason I didn’t mention Ms Zhang was present is because sometimes I left the office later than her, and sometimes her brother was working in the office. So her brother was working as well. … the trading hours on its website is 6.30, but as a matter of fact, her brother has been on this night shift so during summer the office will open until 10.30 pm. As long as there are walk in customers the office will remain open, and we will serve the customers.
She said that Ms Zhang was sometimes present when she was working till 7.30 or 8 pm between August and December 2013.
When asked about the hours upon her engagement, at P89, the applicant said:
At beginning the working hours was nine till 6.30 but from 2013 to early 2015 I was requested to work 11 days on fortnight basis so the salary is based on 76 hours.
When asked who made the request, she responded “Ms Zhang” and said:
She requested me during the interview … and she reiterated this request on 5 August when my probation period was over and when I became an official employee of the company … she just stressed that I needed to work 11 days on fortnight basis.
Counsel put it that she had been asked to work five days a week with an additional payment being made for a day on the weekend on occasions, and the applicant responded:
I don’t agree what you said. From 2013 to early 2015 I worked at least 11 days on fortnight basis. Then, from early 2015, when the company had a … whose name is Paul and he advised Christine that asking employees to work 11 days a week is illegal that’s why Christine changed the working hours, and she allows us to work only five days a week and agrees to pay $100 for the additional day. And we need to send an email for the extra hours.
She went on to say:
You can see from the emails that I wrote are mostly dated from 2015 to 2016, because that’s when the new rule started and during 2013 to 2014 there’s no record of emails of asking – of reporting the overtime, because we were requested to work 11 days every two – on fortnight basis.
When asked why she didn’t send emails for all of the overtime that she was now stating she worked, the applicant responded:
Because Ms Zhang wouldn’t approve some extra – some overtime.
Counsel then put it:
Well, then you weren’t authorised to work the overtime and shouldn’t have done so. Isn’t that correct?
To which the applicant responded:
We were encouraged to work overtime because there are too many tasks and we cannot finish that during normal working hours. So we have no choice but to work overtime.
She then said, at P90:
The actual number of hours that I worked is much more than 38 hours a week.
It was put that she had never talked about this to anyone in Odyssey Trading, but the applicant responded:
I talked to Ms Zhang in person about this. And Ms Zhang would allocate me with extra task when I was – when I was taking a break or when I was not working during normal working hours.
At P91, she said:
At the beginning, I would talk to her that we’ve been very busy and I’ve been working overtime every day. And she says, Well, just keep up with your hard work, I will give you a commission for your sales. Just keep up.
When asked what she specifically said, she replied:
From what I recall on one occasion I told her that I processed eight travel groups and at least two people in each group, some group has more than 10 people and she’s clearly aware of the workload. And that’s the workload within a day.
Counsel asked what she had specifically said about working longer hours, and the applicant responded:
Because she does not want to talk about this topic and she does not like talking about this topic specifically. Therefore all I can say is that I’ve been very busy, I’ve been working overtime every day.
Counsel traversed paragraph 27 of the affidavit sworn on 29 August 2020, where the applicant had said her hours had been reduced at her request when she was suffering workplace stress, but the applicant did not accept that this meant she was never forced to work too many hours (P92). At P93, Counsel returned to the question of the 11 days per fortnight and put it that the applicant was never forced to work 11 days per fortnight. The applicant said:
She requested me in the interview before she started to pay me super in August 2013 and also I asked other colleagues in the company in private and they told me they were requested to work 11 days every fortnight.
She stuck by this answer despite being pressed, and when asked why she was not calling the other employees to whom she had referred, she said they were scared of Ms Zhang.
Counsel then turned to the change in 2017 – to which it would be necessary to return in the context of the independent contractor issue. He cross-examined about paragraph 55 of the applicant’s trial affidavit. At P96, the applicant said:
So on 26 June 2016 I was working 10 days per fortnight but the salary does not include overtime on the weekends because at that time I was still required to work overtime on the weekend.
At P102, Counsel put it that if the applicant worked for more days, she would put it on her invoices, and the applicant responded:
If I was requested to work overtime by James or Ms Zhang they allowed me to claim one extra day on the invoice.
Counsel then put it that there would be no extra days that she had not been paid after 2 January 2017, but the applicant did not agree. She went on to say that she worked on Easter Day in 2017 but was still paid only $237, not inclusive of a penalty rate.
At P103, the applicant continued:
all the days that I work in the office I put on the invoice but there are some occasions where I was on a day off but I still have to work from home and those days were not put on an invoice and I was not paid for working on those days.
She went on to say:
For this extra day sometimes I work for 12 hours, sometimes I work for 13 hours yet I was still paid the normal rate.
Counsel put it that she was instructed by Mr Shen only to work from 9.00 am to 6.30 pm, but the applicant said:
The official trading hours is from 9 am to 6.30 pm but if the office is still open we cannot leave without finishing our tasks because there are still walk-in customers. We have to finish all the tasks before we leave the office.
At P104, Counsel put it to the applicant that if she put an extra day in her invoice, she was not reprimanded for this, but the applicant responded:
Ms Zhang wouldn’t be happy about that.
Counsel put it that, nonetheless, she was paid for the extra day that she worked, but the applicant said:
Not all of it. Sometimes, as I said, I worked from home and while I was taking the days off and they didn’t pay me for those days. And, also, they only paid normal rate.
Counsel questioned whether she received specific requests to do work from home, and the applicant said, at P105:
Yes, I received such a request. Sometimes Ms Zhang would request me to help her friends or her clients. Sometimes I would receive some urgent request from other clients who’s at the airport and they were asking for some urgent help. And so at this time I had to – I had to work, even if I was at home…Sometimes Ms Zhang would give me a call. Sometimes she would just WeChat to me asking for – WeChat to me in relation to the request. Sometimes she will ask her clients to contact me directly.
Counsel put it that she was never authorised to work longer than 6.30 pm after January 2017, but the applicant said:
Because the clients kept coming in, if I stopped working from 6.30 – if I didn’t take the queries of the clients, they would just make complaint against me at Ms Zhang, so I had no choice. I had to work even if it was beyond 6.30, and Ms Zhang asked us to be standby 24/7.
At P106, the applicant confirmed that some other travel consultants needed to work overtime and left the office later than 6.30 pm. She confirmed that she had not sent invoices for the work she had done at home. When it was put that she never told Ms Zhang about the additional hours she worked, Ms Wang said she told him about it:
I also told him that I was overwhelmed by the tasks and workloads. I requested additional staff to work together with me in the Glen Waverley office.
She said she had talked to him very often about this. She said she called Mr Shen and sent WeChat messages or called Ms Zhang asking her to send additional staff to work with her (P106).
At P107, Counsel put it that she had never mentioned the hours she worked in her invoices. The applicant responded:
Yes, it’s true I didn’t indicate how many hours I worked on the invoice because Ming, the accountant give me a format and she said, “You don’t need to indicate the number of hours you worked, on the invoice.”
When asked if she had sent any requests for further payments to anyone in Odyssey Trading, the applicant said, at P109:
From October 2017… I went back on working full-time…
At P109, she continued:
Actually, Ms Zhang told me to work that many hours at Glen Waverley office, but I – sometimes when I had to work overtime, I didn’t tell her and some – and, also, upon closing of the office, she would call me regularly to check if I was still in the office and, also, she would just come up with some last minute task…in that circumstance, I wouldn’t be able to finish my work on time. I had to work extra hours… She would call sometimes at 6.25, sometimes at 6.29…she would sometimes give me new jobs, new tasks, and sometimes she would ask me to attend to some urgent requests. And while the conversation would only last for a couple of minutes, but it takes lots of time to finish the tasks that she gave me.
Counsel put it that she would have done the tasks the next day, but the applicant said:
But I have new tasks for the next day. If I didn’t finish that within today, that means those works will be dragged out to the next day…if she was within Australia, she would just call me three or five times a week and give me new tasks. And if she was overseas, then her husband would call me and give me new tasks. She would, also, give me tasks through WeChat and so does her husband, James Shen.
At P127, Counsel traversed the amount of cash paid to the applicant. He put it that she was paid a total of $30,000, which the applicant roundly denied. Counsel later moved to the issue of Hotel Mart, the second company operated by Ms Zhang. At P136-137, Counsel traversed the applicant’s employment at Glen Waverley, and the applicant said that after 2017, she often did not take a lunchbreak and would be scolded if she did. She also confirmed at P137-138 that she had complained both to Addison and to Ms Zhang about not being paid correctly for her overtime. At P138, she said:
Previously, they encouraged me to work overtime, and they said that they will pay me commission, but they ended up not paying me commission, so I said to them, if that’s the case, they should pay me a salary for working overtime.
At P139, however, she confirmed that she had not complained to Ms Zhang about being underpaid. Once the relevant part of the affidavit upon which the question was translated to her word for word, she seemed to me to withdraw that admission.
At P140, the applicant said:
First, Ms Zhang told me that as long as I can – I could achieve sales which is worth more than three times of my salary, then I would be entitled to commission, and she was referring to the profits of the sale.
At P141, she was cross-examined about doing work at home and said that these were reflected in the working diary that she kept and would be on weekends and public holidays and sometimes at night-time. At P143, Counsel put it that the times she said she performed work for Odyssey Trading she had not done so, but the applicant did not agree. Counsel further went on to deal with the question of Hotel Mart and confirmed that she had done some work for it. At P146, the applicant said:
I just want to say that the business of Hotel Mart, they – only accounts for a very small ..... of the business, but most of my work was done for Odyssey Travel. So when I was working at the Glen office, all Hotel Mart income was recorded in – under the Odyssey Travel’s account.
At P148-P149, Counsel returned to the question of the discrepancies between the invoices in JW22 and the handwritten notes at JW16. At P149, the applicant said:
Whenever it concerns money, Christine will get mad.
She went on to say:
I would raise the commission payment to her. Whenever I raised that, she would get mad.
She was asked about $5937.20 paid by cheque on 3 July 2015 and confirmed that this was her bank account, but it must be a bonus paid by way of commission. Counsel put it at P150:
There were at least three bonuses/commissions paid, correct?
And the applicant’s answer:
It’s not – they’re not commission. They’re just bonus because they are far less than what she should pay me in a form of commission.
She went on to say that at Christmas in 2015, she received a sum of $7000. Counsel also put it that on 28 October 2014, she was paid $3000, something I understand to have been ultimately conceded by the applicant through her Counsel.
At P151, Counsel put it that the working diary (annexure JW16) was not made contemporaneously with the overtime she claimed to have done. The applicant said:
the electronic working diary that I submitted for the day – for the month August 2020, that was made later – subsequently, based on my original diary.
When pressed that the JW16 was not made at the time of the entries contained on it, at P151, the applicant said:
I disagree with you.
She went on to say:
The date that I put in my diary was the dates which I supposed to work on my normal hours, but some of the overtime hours that was requested of me was in very short notice. Sometimes Christine would contact me late at night – at 10 o’clock or 9 o’clock at night, to ask me to work overtime for tomorrow… Sometimes I put the entry in at the end of the day, sometimes at the end of the week, and sometimes the work will continue into the next week. The longest period that I’ve been working continuously was for 14 days – 10 days.
Counsel pressed the differences between the overtime in the emails and in her working diaries at P152, and the applicant said:
I need to think about it. I think it maybe because it was – the overtime that was requested was requested very – within a very short time space, and I worked overtime and I forgot to put in my – in the – put an entry in my diary because I have already sent an email.
When it was put that this was not in her trial affidavit, the applicant said:
I included in my affidavit, saying that the record that I provided does not include everything – all the hours that I worked overtime.
At P153, the applicant confirmed what was in the emails was that she was paid $100 for extra hours for the day. She confirmed that:
since February 2017, they would not pay me salary unless I issue an invoice, but they paid for only – they paid for all the invoices that I’ve issued, but these are salary.
When it was put, at P153, that Ms Zhang had no idea she had worked any overtime hours, the applicant responded:
Maybe Ms Zhang – Ms Zhang doesn’t know about the specific hours that I did work overtime, but she did know the fact that I worked overtime because sometimes she will ask me to work on certain jobs after hours.
She disagreed with the proposition that Odyssey did not owe her any money. Re-examination did not take the matter significantly further.
The only evidence given about the applicant’s hours of work from the respondent was given by Ms Zhang. Ms Zhang confirmed, at P160, that she is the sole director of Odyssey Trading and is a director of Hotel Mart. She has been a travel consultant starting in 1997, and she has run the business for 24 years. At P161, when asked about what she had told the applicant about set hours, she said:
I believe it’s 10 o’clock to 6 or 9.30 to 5.30. I can’t recall. I have so many staff, 60 staff, and I can’t remember.
When asked what she had said to Ms Wang about overtime, she said:
You have to report to the office and to plan it. You have to write – in written. We can’t accept the oral request.
Ms Zhang confirmed, at P162, that she was usually overseas for six months a year, and went on to say:
So whatever she said, sometimes I send message to her or to do some work. I have big time difference. I never push people to work after hours because I – they don’t have to do it. They don’t have to do it and I don’t never push them, otherwise I can’t cross 300 staff working for me for the 24 years.
At P163, Ms Zhang confirmed that she usually works longer hours and is usually the first or second one to come in and the last one to go. When asked if she had observed Ms Wang in the Lonsdale office working overtime, she said:
Sometimes but we don’t force anyone because most girls they finish and they go. I can’t say I ..... but she is the one who sometimes work behind but we don’t encourage. You have to be efficient to be on the .....
She went on to say that she had worked both upstairs and downstairs (in Swanston Street) and that:
Lonsdale is the main office for management for meetings and we meet airline people. That’s where I usually go as well.
When asked if she recalled whether Ms Wang submitted any claims for overtime, she responded:
No. She could and we don’t encourage that, to be honest, you know. And you don’t have to do any extra. I never force people and...to come back any interviews with other clients with other employees. I don’t really know their – what they doing because too many tasks, you know. Some doing a group. We still trying to open the Chinese group come in and some do the concert. We do have the marketing team doing the concert. I don’t really know exactly what they’re doing. They just – at the end of the day they report and that’s it. I don’t push – I don’t even know the details much because so many staff and I’m in the management position.
At P164, Ms Zhang was asked who authorised any overtime payments and responded:
If I’m in office I authorised or James, my husband and, you know, the – can I just add one thing? I was special industry if – if handling a group, she might have to give up the mobile phones because the whole group stuck at the airport with the wrong flight with the particular bad weather or something, we do have a big group like this which encouraged to have a mobile. Otherwise, because I have three staff took all the clientele overnight.....on their own so I don’t encourage them to give V checks, give mobile – personal mobile phone to my clients. No. And also they can’t take their computers home because all the private – all the information with the client details, the – everything, credit card details, they forbid it. So May do any work and that’s – it probably has to be an emergent – very urgent issue. Otherwise, no. No. They got freedom.
At P165, Ms Zhang said that the applicant never handled bigger groups and only did groups of 10 people or less, and she was also asked, at P165, if she knew what Ms Wang’s work hours were in 2014. She responded:
That’s the basic hours. You have to have.....I think it’s 9.30 to 6. 9.30 to 5.30. Yes. Just standard hours.
When asked what she said about Ms Wang having any overtime in 2014, Ms Zhang responded:
Well, you know, lot of – if she wants to stay I’ve got no right because sometimes if they – she says she’s single and she’s got – I don’t know. I can’t – she has to prove she’s doing some work for me.
The next question was:
What do you know about whether or not she did do, what – stay longer in it?
And Ms Zhang responded:
it’s normal girls saying, you know, the office got air conditioning, some are so hot...and it’s cooler to stay inside. That’s what the girls sometimes joke about. I don’t know...
When asked if she had observed whether Ms Wang stayed longer in 2014, Ms Zhang responded:
they feel free to stay but no – no. The business hour – the girls, if you check and the HR officer or all the staff in the office shut, they leave because that – that’s the reality. Why do you want to stay behind if you finished work? If you don’t – if you haven’t you can do the next day. It’s no – I don’t push people. That’s – I don’t. It’s up to you if you want to stay behind.
At P166, Ms Zhang detailed cash that she said the applicant had received, and said:
The three transactions 8000, 7000, 3000 whatever, you know, that’s from the book that has direct deposit into her account plus other things.
At P166, Ms Zhang was asked how often she had asked the applicant to work an extra day in 2014, and she responded:
It would not happen for – for this whole day. No. For – for – not quite often. No.
When asked how many times in the year she had worked an extra day, she said:
Her request. Five.
She then went on to say:
Maybe 10, 15. 10 to 15 times.
She indicated this was to replace other workers who were unavailable. When asked how much she was paid for working those days, Ms Zhang said, at P167:
She will get paid – she will get paid for the day or something, you know, for the hours she doing… That’s according to her rate.
She returned to the issue of the amount of hours that the applicant worked on the 10 to 15 extra days in 2014 and the amount paid, and she said:
Just normal hours…Which were from 9.30 to 5 or 10 to 6. That was requested…At that time award because she’s junior, I think $19 an hour. That’s basic.
She then went on to say sometimes the transaction was recorded by a company. She also said, in answer to a question:
Was it ever paid in cash?
She said:
Sometimes. Yes. But because it’s not on a regular basis it’s hard to record in the books. Never will they work for nothing. They will get paid.
Ms Zhang went on, on P167, to say that the applicant received a pay rise almost every year because she was doing fine.
At P168, Ms Zhang was questioned about 2015, when she confirmed the applicant was working in the city office. Ms Zhang was there four days a week. When asked what her observations were about Ms Wang leaving the office in 2015, Ms Zhang, at P168, said:
Well, office hour is as such. No one pushed her, and she has got a right … Well, it’s in the nature, sometimes would like to stay because she’s not like other – got family and have to cook.
When asked how often she observed her staying back, she said:
Maybe two, three times a week … Really it’s up to her or she has to prove she’s doing the work after hours.
She repeated, at P169, that she observed Ms Wang staying back two or three times a week if she wants to stay. She then went on to say, at P169, this was maybe for half an hour or something. She went on to say:
She left earlier than me for sure. I mean, usually – for example, if 6 o’clock then she probably stay 6.15 or 6 something. Maybe 15 or 20 minutes or half an hour later but I can’t really say, you know. It’s – I can’t – it’s really up to staff they want to stay but you have to prove you’re doing work – extra work.
She went on to repeat, at P169, it was 10 or 15 or half an hour. When asked what she said about the applicant saying she was working till 7.30 or 8 o’clock, Ms Zhang responded:
Why did she have to do that? She doesn’t have to.
When asked if she had observed her waiting, Ms Zhang said:
Not that long…. I don’t think. Just it’s not safe to be home that late…. If she stayed there, I would not encourage because at that time, Melbourne is not that safe.
She went on to confirm, at P170, that in 2015 the applicant had replaced a worker 10 to 15 times, and appeared to confirm that this was paid in cash. At P171, Ms Zhang said that the applicant was still working the standard hours in 2016, which was:
…9.30 to 5.30, I think –
and repeated that the applicant did not work additionally for more than half an hour. She said:
no need because finish work and go home. No special request from me. Why do I not request other staff? No.
When asked how many extra days Ms Wang worked in 2016, at P172, Ms Zhang said maybe 5 to 10 days for the whole year, and said, in respect of payment:
Well, she will report, and then we pay accordingly.
She went on to say everything was written and that it was usually according to the right award. At P172, in response to a question as to how the payment for extra days was calculated, she said:
it’s usually according to the right award and because the extra – it depends on the timing…sometimes.....this work late – less hours. Six hours plus one hour break…some time she work not – for example, she works from Tuesday to Saturday and that five days and not extra day for Saturday because she’s having the day off on Monday. Sometime like this. It’s like five days and with that award, you know, she’s – like 2017 she got 45,000 per annum. It’s like above the rate.
She was then questioned as to whether the applicant was paid $100 cash in hand, and said:
She requested to earn cash and because I do pay her separate this cheque and cash at the end of the month – at the end of the three months or something to compensate that. I don’t – that she said – you know, if you work out the amount that I paid her in her account, that compensate that because you don’t have to do that if did something wrong, you know.
At P174, Ms Zhang was giving evidence about the time at which the applicant left the city office in 2017:
It was much the same. Maybe 15, 30 minutes.
She also said:
I think she was the one who got to do at home. She finished work and she stay in the city area. You have restaurants, you have everywhere….but I don’t give her extra work to finish after hours.
At P176, dealing with when Ms Wang was working at Glen Waverley and her workload there as it appeared from daily reports, Ms Zhang said:
See, if you ask if she sometimes got nothing to do, she sleep in the office, have jogging, running and then....because sometimes – and she said she had no time to have lunch. A note put on the door and because now a lot of people transfer the money, they don’t come indoors so that’s not true. She can have lunch and put a note...
When asked about the applicant working six days per week, Ms Zhang said:
Not six days work. No. She has got a shift. I can’t say if that is really too many staff. Six days a week in Glen Waverley, I don’t think so.
Under cross-examination, Ms Zhang was asked if she accepted the number of days that the applicant had invoiced for overtime in 2015 was 26, and responded at P181:
26 before I said 10 to 15 days which is about 10 days difference, right, because as I said, it’s gone too – too long because personally I did not read these emails myself; it’s not direct to me but it is just for my accountant as they – they were in charge of the – all this payroll, you know. I have too many to – other things to handle, and also....that clear said we – how many hours or anything like that did not mention so you can’t really say that particular day how many hours, and that needs to be indicated, isn’t it?
When pressed, at P182, she appeared to me to concede that Ms Wang might have worked 26 days in 2015 and 2016.
Counsel further traversed page 50 of the applicant’s trial affidavit and put it that that invoice showed 11 days worked in a fortnight, at P184. Ms Zhang appeared to agree that this was so. Counsel put it:
The reason that Odyssey paid the amounts claimed in those invoices is because Odyssey agreed that the invoices correctly recorded the days that Ms Wang had worked.
And the answer was:
Whatever you send invoice, and we pay.
When pressed that the invoices correctly recorded the days that Ms Wang worked, she said:
The days, no. The hours and I need to see the hours as well.
At P186, Counsel put the question that Ms Wang, at Glen Waverley, regularly worked either 11 or 12 days in a fortnight. The answer:
I would say she put it right because she got a rate – she put the right timing, the hours, first of all, and sometimes there was different timing. The date just calculate correctly with the – of those agreed rates, and we pay for it so I don’t think there’s any – if she raised the right amount of money, and we pay for it; there is no doubt of it, okay; it’s from her understanding and from her invoice, and we have nothing to do with the amount she raised. If she raised 15 days, whatever the date, on the invoice we always pay. If she put the wrong amount of money, if not we do it on purpose to reduce it, okay. It’s really up to her to put the correct invoice amount; that’s what I’m saying because she has got full capacity and the ability to do the right calculation by herself.
Counsel, at P186, turned next to the question of regular hours. Ms Zhang confirmed that the shift times were either 9.30 am to 5.30 pm or 10 am to 6 pm, and that the shifts ended when the store closed. She went on to clarify that in Swanston Street there were two shifts. One starts at 9 o’clock and finishes at 5.30, the other at 9.30 or 10 o’clock and finishes at a different time. For Glen Waverley, they had a set time. She then, at P187, confirmed that the office hours were on the website. At P187, she said that the office hours was two shifts at the city office, and if you start early, you finish early, but for Glen Waverley, it was 9.30 to 6 pm. At P188, she said:
Everyone finished at 6.30; that’s the latest, but if you have the Hotel Mart day tour, if more people coming, we have different staff.
Counsel put it to her that the Odyssey Trading website gave business times Monday to Friday at 9 to 6.30, but Ms Zhang said they redirect people who ring at 9 o’clock. The answer was somewhat discursive and not necessarily precise. Counsel put it that Ms Wang’s rostered hours were always 9 am to 6.30 pm, and Ms Zhang responded:
I don’t think so; which office?…I could not recall she started at 9 o’clock… she start from my memory is 9.30 to six. I might be wrong but that is usually the case; she won’t start that early. Kiki the person who will start.
At P190, Counsel put to her the applicant’s affidavit assertion that from August 2013 she worked an 11-day fortnight and worked from 9 am to 6.30 pm and that those hours continued throughout 2014. Ms Zhang said, “I don’t think so; that’s not true”. She confirmed that she had not produced any rosters or timesheets although she said that she had not been asked to.
At P191, Counsel put it to Ms Zhang that in 2013 and 2014 Ms Wang regularly worked 11-day fortnights. Ms Zhang responded,
I just want to say that she knew the rate of the day, if she put the correct amount to invoice to Odyssey if she worked that, and she bill Odyssey, and Odyssey will pay, … that’s simple as that
When the question was repeated she said,
No have to repeat. 10, 11 days, whatever, if it’s extra, and she invoiced, she knew how to do the invoice, and calculate the dates.
When asked if the email dated 6 February 2015 was the first email Ms Wang sent for a claim for overtime Ms Zhang at P192 said she did not know. She said,
I did not know that that was the first or not. It was the first one that you showed me today but I don’t know whether it was the first she sent for that year. No, I have no idea because I’m not in charge of...okay, that’s the – and I did not even see this email with my own eyes; it was not sent to me, to the accountant.
This aspect of the dispute while pleaded has attracted little attention during the currency of the hearing. I infer from the way the matter has been approached that it is conceded that Odyssey Trading paid superannuation on the wages that were paid to Ms Wang during the currency of the period that she was conceded to be an employee, save that it seems quite clear that no superannuation was paid on the occasional $100 payments paid to her from 2015 to 2016. Equally no superannuation was paid on the bonus payments that she was paid from time to time (something that only goes to confirm that they were not in fact wages in the ordinary way of things). Equally clearly no superannuation was paid on any underpayments of wages that the Court might find and Ms Wang is obviously entitled to have superannuation paid to an appropriate superannuation fund in respect of such sum as is ultimately found to have been underpaid.
HOW MUCH WAS MS WANG PAID
Ms Wang’s formal wages, so to speak, are not, in my view, subject to material dispute. The applicant has deposed as to what she was paid in her trial affidavit, and she was not challenged as to those figures.
One thing that is in issue, of course, is the characterisation of the bonus payments that were paid from time to time. It is clear that these were bonus payments. There has been no methodology provided to suggest quite how they were calculated. Ms Zhang, understandably perhaps, could not remember the hourly rate upon which they might have been based with any precision. There appears to have been some system whereby rewards of an intermittent nature were given, whether in the form of additional payments or overseas travel. I accept that these were bonus payments truly so described (one of them was expressly described as a bonus in the bank transfer). There seems to have been some discussion about commissions, which gave rise to rancour, particularly in the later stages of the relationship between the parties. I do not accept that these so-called bonus payments were, as it were, a makeweight for an obvious underpayment of wages for the time that was invoiced by Ms Wang on weekends.
It seems to be common cause that Ms Wang was paid $1336.15 per fortnight or $1204 after tax from 5 August 2013 (trial affidavit paragraph 11). On 21 July 2014, in accordance with the annual review practice that appears to be uncontroversial, her fortnightly wages went up to $1468 per fortnight or $1342 after tax. On 26 June 2016 Ms Wang’s fortnightly wages went up to $1923.08 per fortnight or $1585 after tax. From 6 February 2015 and onwards the applicant was paid $100 cash for each day of the weekend that she worked. I accept that the invoices (as everyone has referred to them) at annexure JW20 of her trial affidavit reflect the only such payments that were made. It was Ms Zhang’s evidence that they paid whatever was on the invoice (as was indeed the case after the applicant went onto an ABN). They governed the period from February 2015 until December 2016 which is entirely congruent with the transfer of the employment to the ABN that I have earlier described. Ms Zhang sought to suggest at times in her evidence that Ms Wang had received substantial amounts of other payments but I have seen and heard both her and Ms Wang give their evidence and I believe Ms Wang in this regard. The only additional payments paid to Ms Wang are the $7000, $5000 and $3000 payments that I had found to have been bonuses and which cannot be set-off against Ms Wang’s claims.
INVOLVEMENT
There is obviously an issue in this case as to whether or not Ms Zhang was involved in the contraventions of the first respondent within the meaning of section 550 of the Fair Work Act. Section 550 provides pursuant to subsection (1) that:
A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
And by subsection (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.
Counsel dealt with the question of involvement in some detail in opening at P30 and following. I have had regard to those submissions although I do not propose to traverse them.
The applicant submits correctly that the first element that needs to be shown is that the second respondent knew that the work Ms Wang did was governed by the retail award. This matter can be disposed of quickly. Not only does the defence admit that an award applied (albeit not naming it) but Ms Zhang expressly conceded that the Retail Industry Award 2010 applied and she knew this in cross-examination (P178).
The second element is that Ms Zhang had knowledge that the award stipulated minimum rates of pay. Ms Zhang said in her evidence, “We always followed the award,” and at P178 confirmed that, “We check with Fair Work the minimum pay, and then always above the rate.” She plainly knew that the award stipulated minimum rates of pay.
The third element suggested by the applicant is to show that Ms Zhang knew that the applicant performed work for the respondent. Here as I have earlier described, there is no doubt that at least on occasions Ms Zhang was working in the same office as the applicant. She knew that she was staying beyond the normal working hours. As earlier indicated I have not accepted Ms Zhang’s imprecise and ultimately at best vague evidence that Ms Wang was not working for her. She clearly did direct Ms Wang to work outside normal hours as Ms Wang has deposed. She gave her instructions by WeChat.
The respondents have submitted that to be a knowing participant Ms Zhang needed to know the exact hours that Ms Wang worked. In Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 Katzmann J quoted at [956] an earlier decision of Logan J in Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 8) [2010] FCA 1197; 275 ALR 293 where his Honour relevantly said:
It is not, in my opinion, supported by Yorke. It will be sufficient to prove accessorial liability in respect of the corporate contraventions if the [ACMA] proves that Mr Phillips was aware that IMP and on its behalf Jobspy were employing a system of operations whereby fictitious profiles were being created to the end that each third party consent to the use of the premium shortcode would be procured by a message which was deceptive because of the employment of a fictitious profile. Proof of knowledge at a more detailed level of abstraction is not, in my opinion, essential.
Katzmann J went on to say at [957]:
I accept the Ombudsman’s contention, as far as it goes. Mobilegate shows that, where an alleged accessory is aware of a system producing certain outcomes, and those outcomes constitute contraventions of the Act, it is unnecessary to show that the alleged accessory knew the details of each particular instance of those outcomes in order to show the requisite knowledge.
I accept the applicant’s submission that it is not necessary for the second respondent to be involved within the meaning of section 550 that she knew each and every instance of the contraventions. She was well aware of the system of work which she had herself put in place that caused Ms Wang to have to work late and a number of the weekend requests indeed came directly from her.
The next consideration is whether Ms Zhang had knowledge of the amounts that were paid to the applicant. Counsel referred to what he submitted was a divergence of authority in this regard. In Grouped Property at [1019] Katzmann J said:
Where the contravention is a failure to pay award rates, an accessory must know what rates are being paid but need not know that the rates which were paid were below the rates prescribed by the applicable award. As White J acknowledged in South Jin at [229], “[a]n accessory does not have to appreciate that the conduct involved is unlawful”.
Counsel submitted that in Fair Work Ombudsman v Devine Marine Group Pty Ltd & Ors [2014] FCA 1365 White J had taken a slightly different view. At [191] his Honour made it clear that an element that the applicant must prove is that the amounts that the employer paid to the employee were less than the minimum rates and that actual knowledge that this was the case was required.
Devine is not cited in the list of authorities considered by Katzmann J in Grouped Property and it is the more recent decision. I would take myself to be obliged to follow that if I had to choose between them for that reason.
Factors which would apply whichever of the two competing tests would apply include:
(a)Ms Zhang was aware that the General Retail Industry Award applied,
(b)she knew there were minimum rates of pay,
(c)she knew the system of work which required the applicant to work additional time applied,
(d)in any event specifically Ms Zhang requested other overtime be performed by the applicant on occasions at the weekends,
(e)she was responsible for annual pay reviews, knew that the amount was calculated by the accountant and she conveyed the results of the pay reviews to employees annually,
(f)she expressly conceded that the amounts paid to the applicant in respect of her weekend work were not sufficient to satisfy the award save to the extent it might be possible to offset the bonus payments which I have decided should not be offset.
Ms Zhang was one of two directors until 2015 and the tenor of her evidence clearly established in my opinion that she was the driving controller of the business throughout Ms Wang’s employment. Her evidence referred to her running the business since 1997. She plainly had an intimate supervisory overarching role and kept a clear eye on the conduct of the business at all times even if with so many employees she did not know exactly what everybody was doing all the time.
In all these circumstances I have no doubt that Ms Zhang further was well aware that to the extent that the award was being paid, it was not being paid for the amount of time that Ms Zhang saw the applicant in the office even of itself. While she has asserted that they always paid pursuant to the award, it would seem from Counsel for the applicant’s opening that even at the commencement of the employment the amount paid to the applicant may have been $30 a fortnight under the minimum award rate for a level 1 employee.
In these circumstances there can be no doubt that Ms Zhang was involved within the meaning of section 550 of the Act.
THE RULING
At P225-227 an exchange took place which had the net effect that I did not permit Counsel for the respondent to lead evidence in re-examination which was designed clearly to show that Ms Wang had worked on her own behalf when she was working at the Glen Waverly office, and interrelated assertions that she had improperly abstracted funds that should have been paid to Odyssey Trading. I indicated at P227 that I would give my reasons for this ruling in my Judgment and these are those reasons. Unfortunately they require some history.
Ever since the start of this proceeding both parties have from time to time sought to expand the hearing from a relatively (in principle) straight forward series of claims in respect of underpayment of wages. The positions the parties have endeavoured to adopt have at times been quite outlandish in my opinion. In the original statement of claim filed 7 August 2019 the applicant inter-alia pleaded that the respondent had knowingly made a false claim to Victoria Police alleging that she was guilty of theft knowing the same to be incorrect. In an amended statement of claim filed 14 May 2020 this was expanded and the assertion was made that the respondent took adverse action against the applicant in retaliation for exercising workplace rights by knowingly making false complaints to Victoria Police.
In the defence filed 18 June 2020 the defence relevantly responded, pleading that the application made by the applicant was an abuse of process because it was made for the collateral purpose of impacting upon and/or placing pressure upon the respondent in relation to the making of the theft charges that had been laid by the Victoria Police. And at paragraph 16 it was asserted that the applicant’s lawyer contacted witnesses in the criminal charges, thereby compromising the respondents’ case and the proceeding should be stayed and or struck out as an abuse of process because of the actions of the applicant’s lawyers. This ancillary aspect of the dispute (which already included at least in broad outline the claims for underpayment for wages and alleged adverse action constituted by an asserted dismissal) received further oxygen by the reply filed by the applicant on 23 July 2020. In that reply it is expressly asserted that the theft charges were filed in pursuit by the informant in retaliation for the applicant refusing to drop this proceeding, and without a factual or legal foundation. The reply, entirely regrettably in my view, went on to state that the theft charges were corruptly commenced by police officer, Wayne Dean (the informant in the said theft charges) “knowing the said charges were without factual legal foundation and in truth and in fact were filed at the urging of the Respondent” and “are being pursued only because Wayne Dean and the respondent are acting in concert, so that for his efforts, the respondent has corrupted Mr Dean by giving him and Mr Dean has corruptly accepted from the respondent gifts in the form of air tickets issued by the respondent to Mr Dean and or members of his family without the tickets having been paid for in the normal course of business.”
The applicant’s outline of submissions in the interlocutory proceedings then underway dated 11 November 2020 traversed in more detail the involvement of Officer Wayne Dean. In Wang v Odyssey Travel Pty Ltd (No.2) [2020] FCCA 3218 I dealt with this question of the conduct of Mr Esser as alleged by the respondent and the conduct of Mr Dean. I said at [44] and following:
The real difficulty with this matter, which has occupied substantial scandalous and contentious affidavit material by both sides, is that it turns upon issues that are essentially extraneous to the matters the court is being asked to determine.
I note that it is strongly asserted by the applicant that the police officer investigating the possibility of theft is acting in concert with the respondent, and corruptly and improperly so. The police officer, self-evidently, is not a party. I have no intention of joining him, even if it might be thought proper otherwise to do so. If it is the applicant’s case that the respondent and the relevant police officer concerned are, in some fashion, acting corruptly to interfere with the proper administration of justice, then the applicant may have remedies arising out of the tortious conduct that that would constitute.
It is, however, an entirely ancillary issue, and in my view, it is inappropriate to have it tried in this proceeding. Indeed, I would go so far as to say that the disadvantages of allowing this trial to be distorted by assertions that on the one side, the police and the respondents are acting corruptly in concert, and on the other side, that Mr Esser has misconducted himself, are plainly matters that it is inappropriate to bring into what is, after all, when boiled down, a claim for underpayment of wages and the like.
The applicant’s claim to have suffered adverse action in the form of dismissal is a matter that forms part of the inter partes disputation and is plainly appropriate to be heard and determined. All the matters to do with the police, in my view, should be dismissed. They could only be brought within the court’s accrued jurisdiction if the court was not, of course, satisfied that they constituted adverse action in any event.
From these materials it will be readily apparent that this proceeding has from an early stage had, lurking in the background, a major dispute between the parties as to whether or not Ms Wang had stolen money from the respondents or otherwise misconducted herself. No cross claim has ever been sought to be brought. The defence did not plead that Ms Wang had worked both to her own personal benefit while employed (or contracted) by Odyssey Trading. Nothing in the defence raised the proposition that Ms Wang had had clients of her own and or had improperly sought to subvert funds that should have been paid to Odyssey Trading while receiving remuneration from Odyssey Trading.
The applicant abandoned her adverse actions claims at the commencement of the trial. The respondent sought to make a Jones v Dunkel point about this but in my view it was a very sensible forensic decision made by Counsel on behalf of the applicant. The scope and scale of the proceeding were already quite large enough without what would plainly have been a very contentious area of difference.
When Counsel sought to cross-examine Ms Wang at P113 Counsel said
this is a person who my client alleges, and who was charged with stealing money, and has admitted to having money paid directly into her bank account.
I responded that the proceeding never had a cross claim or a set off pleaded and it was too late to embark upon it now. I noted that the general protections claim had been abandoned as Counsel for the applicant pointed out and asserted at P114 that the provisions of s 135 of the Evidence Act 1995 (Cth) were well and truly bought into play by that particular subject.
There the matter rested until cross-examination at P221 where Ms Zhang asserted that when Ms Wang was in the Glen Waverly office she had other clients use the Odyssey system booking and sought to give evidence to suggest that Ms Wang had re-directed money inappropriately to her own benefit.
In re-examination, as I indicated, Counsel for the respondents sought to examine further about the extent to which Ms Wang was dealing with clients on a private basis as an independent contractor. Ms Zhang who was plainly most anxious to embark upon this aspect of the matter started to assert that there were a number of such people and that the police investigation was continuing. I indicated that it was irrelevant and had not been pleaded. Counsel shouted at me and sought that I disqualify myself he then went on to traverse the matter again and at P227 I asserted:
But it’s not relevant to the way it’s actually put by the respondents, which is that she was an independent contractor. But I will tell you where I am coming from with this. Unusually in these privilege cases, I have a detailed defence. It raises a number of denials of the claim. As far as I’m concerned, that is the parameters with which I am properly dealing. I have allowed a certain amount of detail in the answers and I have noted it and ..... transcript but this line of evidence will now come to an end.
Following further submissions from Counsel for the respondent I indicated that I would give my ruling in the Judgement.
I have set all of this out at some length because this narrative reflects the state of mind that caused me to cease cross examination of this point. Of course at one level of analysis, in a case where one party is suing another for an underpayment of wages, it might be thought an assertion that the person concerned did not actually work for the respondents and/or had stolen money or otherwise improperly abstracted it would be a matter that would go to diminish the substance of the claim. In that sense, my refusal to allow the cross examination was plainly unfair. But fairness is not, contrary to the position I would infer the respondents would adopt, a one way street.
The applicant had prepared her case on the basis of the defence that was pleaded. This went to some detail. If the respondents had a real case that Ms Wang had stolen money from them then that could and should have been the subject of an application in the Court’s accrued jurisdiction that might or might not have been granted. If such a course had been adopted, then the applicant would herself have privilege available to her. She would have the privilege against self-incrimination if nothing else. Furthermore, allegations of this sort are allegations that would attract the operation of s 140 of the Evidence Act. Additionally, she would have been entitled to discovery. None of these things self-evidently could be accommodated given the way in which this issue presented itself in the running of the trial. It would have been manifestly unfair to the applicant to permit a substantive issue of such an order to be introduced in this back-door way. Furthermore to the extent that it went only to credit, it plainly had all the capacity to absorb an enormous amount time and utterly out of proportion to its value. I had seen the applicant and Mrs Zhang cross examined over extensive periods of time and did not need further assistance in relation to credit.
Furthermore and finally of course, my conclusion that Ms Wang was an independent contractor from 2017 onwards means that the respondents are not going to be required to pay her any money during the period in which this complaint is said to have arisen in any event. This was not of course part of my reasoning when I ruled on the matter as I had not formed a conclusion one way or another as to that issue, but as it happens it has rendered the issue completely irrelevant.
CONCLUSIONS
The applicant has essentially succeeded in her claims in respect of the period of employment as I have found it. I have not of course myself sought to work out how the factual findings I have made operate upon the facts as I have found them. The applicant will need to reconsider the schedules that have been provided and reformulate them pursuant to my conclusion that Ms Wang was a level 4 classification employee between 2013 and 2017. This may well take some time. Once I have an indication from Counsel for the applicant as to how long this is likely to take I will be in a position to list the matter for further hearing as to the orders to be made to give full effect to these reasons for judgment including hearing any relevant submissions and evidence in relation to the imposition of penalties for the contraventions that my findings will inevitably give rise to.
I certify that the preceding two hundred and thirty-seven (237) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Dated: 17 December 2021
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