Wang v Odyssey Trading Pty Ltd (No 2) - [2021] FedCFamC2G 363

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 2010

Cases 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 23

Division: 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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FedCFamC2G 363
Decision Date: 17 December 2021

CaseChat Overview and Summary

In the case of Wang v Odyssey Trading Pty Ltd (No 2), the applicant, Ms Wang, sought substantial amounts of underpayments of wages and overtime based on the General Retail Industry Award. The dispute was heard in the Fair Work Commission, Australia's industrial relations tribunal. The central issues before the court were whether Ms Wang was estopped from claiming overtime as she had not raised these claims during her employment, whether she became an independent contractor in 2017, if she should have been paid for time spent overseas, whether the employer could offset "bonus" payments, and if the director of the employer was involved in contraventions within the meaning of section 550 of the Fair Work Act.

The court found that Ms Wang had indeed worked the hours she asserted and concluded that she became an independent contractor in 2017, which rendered the question of underpayment irrelevant for that period. Additionally, the court determined that the employer was not entitled to set off "bonus" payments and that the director of the employer was involved in contraventions within the meaning of section 550 of the Fair Work Act. The court emphasised the need for Ms Wang to reformulate her schedules to reflect her correct employment classification as a level 4 classification employee between 2013 and 2017.

As a result of these findings, the court indicated that it would list the matter for a further hearing to determine the orders to be made to give full effect to the judgment, including any relevant submissions and evidence in relation to the imposition of penalties for the contraventions identified.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2010
Cases 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 23
Division:	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

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