Wats v Infosys Technologies Limited Australia
[2017] FCCA 866
•1 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WATS v INFOSYS TECHNOLOGIES LIMITED AUSTRALIA | [2017] FCCA 866 |
| Catchwords: PRACTICE AND PROCEDURE – Application for summary judgment by Respondent pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) – in his substantive case the Applicant alleges contravention of s.340 of the Fair Work Act 2009 (Cth) (“the Act”) on the basis that he is entitled to the benefit of workplace law, being the Superannuation Guarantee (Administration) Act 1992 (Cth) (“the SGA Act”) – held that because of the interaction between the SGA Act, the Superannuation Guarantee (Administration) Regulations 1993 (Cth), the Social Security (International Agreements) Act 1999 (Cth) (“the SSIA Act”), including sch. 31 to the SSIA Act which contains an agreement between India and Australia, the Applicant is not entitled to the benefit of the SGA Act – held that the Applicant did not have a workplace right within the meaning of s.341 of the Act – held that the Applicant has no reasonable prospect of successfully prosecuting the proceeding – application for summary judgment granted. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 340, 341 Federal Circuit Court of Australia Act 1999 (Cth), s.17A(2) |
| Cases cited: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, 2011) |
| Applicant: | AMIT WATS |
| Respondent: | INFOSYS TECHNOLOGIES LIMITED AUSTRALIA |
| File Number: | MLG 540 of 2017 |
| Judgment of: | Judge Jones |
| Hearing date: | 10 April 2017 |
| Date of Last Submission: | 10 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 1 May 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr O’Grady, QC, and Mr Howard |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The Application filed 16 March 2017 be summarily dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
The Undertaking to the Court filed by the Respondent on 21 March 2017 be discharged.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 540 of 2017
| AMIT WATS |
Applicant
And
| INFOSYS TECHNOLOGIES LIMITED AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Respondent for summary judgment of an application by the Applicant seeking relief for alleged contravention of s.340(1) of the Fair Work Act 2009 (Cth) (“the Act”).
Section 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCC Act”) provides:
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim;…
Section 340(1)(a) of the Act provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; …
The workplace right that the Applicant relies on is that identified in s.341(1)(a) of the Act, which provides:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; …
The workplace law that the Applicant relies on is the Superannuation Guarantee (Administration) Act 1992 (Cth) (“the SGA Act”).
The relief that the Applicant claims is equivalent to superannuation contributions not made by the Respondent under the SGA Act for the period from April 2016 to 31 March 2017.
It is unnecessary to set out the adverse action that the Applicant alleges. This is because the Respondent argues that the Applicant is not entitled to the benefits under the SGA Act, and therefore the Applicant does not have, has or has not exercised, nor proposes or proposes not to exercise a workplace right.
In these circumstances, the Respondent submits that the Applicant has no reasonable prospect of successfully prosecuting the proceeding or his claim, and pursuant to s.17A(2) of the FCC Act and r.13.10(a) of the FCC Rules, the Applicant’s application should be dismissed.
Background
The following are factual matters in respect of which there is no dispute between the parties.
The employing entity, Infosys Technologies Limited, is a company incorporated in India and registered as a foreign company with the Australia Securities and Investment Commission on 18 November 1999. The Applicant, an Indian national, commenced employment with the Respondent, located in Bangalore, India, on 29 March 2010.[1] On 8 June 2015, the Applicant was “deputed” to the Australian office of the Respondent on a short term contract which commenced 15 June 2015 and expired 31 March 2017 (“the Deputation Contract of Employment”).[2] Although the Applicant was deputed to, and hence located in, Australia from June 2015 to the end of March 2017, he continued to work for the same corporate entity.
[1] Annexure NP-2 to the Affidavit of Nishant Prakash (“the Prakash Affidavit”) filed 7 April 2017.
[2] Evidence 5 and Annexure 2 in Evidence 7 to the Affidavit of Amit Wats (“the Applicant’s Affidavit”) filed 20 March 2017.
From June 2015 to late March 2016, the Respondent made superannuation contributions in conformance with the SGA Act.
At all material times, from the commencement of his employment with the Respondent (including whilst the Applicant was on the Deputation Contract in Australia), the Applicant and Respondent were covered by the Employees Provident Funds and Miscellaneous Provisions Act 1952 (India) (“the Indian EPF Act”).[3]
[3] The Prakash Affidavit at [10], Annexure 2 in Evidence 7 to the Applicant’s Affidavit and Appendix 2 to the Applicant’s Form 4 - Claim under the Fair Work Act 2009 (Cth) (“the Form 4”) which alleges contravention of a general protection.
Upon the expiration of the Deputation Contract of employment, the Applicant remains employed by the Respondent pursuant to his contract of employment which commenced in 2010 and pursuant to which he is located in Bangalore, India.
Summary Judgment - Principles
In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60 (“Jefferson Ford”), the Full Court considered equivalent provisions under the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”): s.31A .
Gordon J summarised, in her judgment, principles which inform the consideration of an application for summary judgment under s.31A of the FCA Act. Her Honour said relevantly (at [124], [126]-[128], [130]-[132]):
124. First, the express words of s 31A impose a different and less stringent test to that described in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-30. As was explained in the second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A of the Federal Court Act, the legislative purpose of s 31A was to strengthen “ ... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [45]; Paramasivam v University of New South Wales [2007] FCAFC 176 at [41] and PZ Cussons (International) Limited v Rosa Dora Imports Pty Ltd [2007] FCA 1642 at [13].
…
126. Secondly, assessment of whether a proceeding or a part of a proceeding has no reasonable prospects of success will necessarily require:
1. identification of the cause of action pleaded;
2. identification of the pleaded facts said to give rise to that cause of action;
3. a review of the evidence (if any) tendered in support of the claim for judgment;
4. identification of the defence pleaded;
5. identification of any facts pleaded which are said to give rise to the defence; and
6. a review of the evidence (if any) tendered in defence of the claim.
The method by which such a claim or part of a claim will be assessed will vary depending on the nature of the cause of action, the identity of the parties, the pleaded facts and the evidence, if any, tendered.
127. Thirdly, each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularized denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22]. In other words, it is inappropriate in defence of a claim for judgment under s 31A of the Federal Court Act to seek to defend by merely putting a claimant to formal proof: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12]. This is not a new concept. It finds earlier reflection in ss 190(4) and 191 of the Evidence Act 1995 (Cth) and O 33, O 34 and O 34B of the Federal Court Rules.
128. Another, fourth principle, is that the trial court’s decision to grant summary judgment is to be made as a question of law and reviewed as such by the appellate court. Although ss 31A(1)-(2) state that the court “may” give summary judgment, the word “may” is used here in its empowering sense, not in a discretionary sense…
…
130. A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success: see Boston Commercial Services at [44]. So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has “no reasonable prospect of success”… On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim.
131. By contrast, the existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, “argument, perhaps even of an extensive kind” was permitted “to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed”: General Steel Industries at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.
132. I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [30]; Boston Commercial Services at [45]. I emphasize “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.
In Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499, Sundberg J summarised the following principles extracted from the Full Court of the Federal Court decision of Jefferson Ford (citations omitted):
· In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial… Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
· In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party… Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A…
· The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success… However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”…
· As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim…
38. Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced…
In Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361 at [41], Judge A. Kelly made reference to a series of propositions enunciated in Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 at [46]-[50] per Perram, Jagot and Beach JJ, which included the following (at [46]-[48]):
46. First, a proceeding or claim need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success (s 31A(3)).
47 . Second, s 31A(2) may justify summary dismissal where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification (Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22] per French CJ and Gummow J).
48 . Third, the exercise of power under s 31A(2) should be used with caution, particularly where complex questions of fact or law are involved…
Respectfully, I adopt these principles in dealing with the Respondent’s application for summary judgment.
Statutory Provisions
It can be seen that the Applicant’s substantive case depends on him establishing, to the Court’s satisfaction, that he has a workplace right, or that he exercised or did not exercise that right, or proposed to or did not propose to exercise that right. The relevant provisions of the Act are set out at [4] and [5] above.
The determination of whether, as a matter of law, the Applicant has a workplace right necessitates consideration of the SGA Act, the Superannuation Guarantee (Administration) Regulations 1993 (Cth) (“the SGA Regulations”) and the Social Security (International Agreements) Act 1999 (Cth) (“the SSIA Act”).
The starting point for the consideration of whether the Applicant was entitled to the benefit of superannuation legislation in Australia commences with s.19 of the SGA, which has the effect of imposing a surcharge on an employer, if the employer fails to make superannuation contributions to a relevant superannuation fund at the rate prescribed. This is called an “individual superannuation guarantee shortfall”.
However, s.27 of the SGA Act excludes certain types of salary or wages from the calculation under s.19 of the SGA Act. One of those categories is identified in sub-s.27(1)(e) of the SGA Act as “salary or wages prescribed for the purposes of this paragraph”. Sub-section 27(1)(e) of the SGA Act provides:
(1) The following salary or wages are not to be taken into account for the purpose of making a calculation under section 19:
…
(e) salary or wages prescribed for the purposes of this paragraph.
Regulation 7AC of the SGA Regulations provides:
For paragraph 27 (1) (e) of the Act, payments of salary or wages are prescribed if a scheduled international social security agreement provides that the employer to which the salary or wages relate is not subject to the Act in relation to the work for which the salary or wages were paid.
Regulation 2 of the SGA Regulations defines “scheduled international social security agreement” as follows:
scheduled international social security agreement has the meaning given by subsection 5 (1) of the Social Security (International Agreements) Act 1999.
Section 5 of the SSIA Act provides:
(1) For the purposes of a provision of the social security law, an agreement is a scheduled international social security agreement if:
(a) the agreement is between Australia and another country; and
(b) the agreement relates to reciprocity in social security or superannuation matters; and
(c) the text of the agreement is set out in a Schedule to this Act.
(2) The reference in subsection (1) to a scheduled international social security agreement includes a reference to such an agreement as amended, or otherwise affected in its operation, by a further agreement or further agreements between Australia and the other country concerned.
Schedule 31 to the SSIA Act - Republic of India is headed “Agreement between Australia and the Republic of India on Social Security” (“the Agreement”). Schedule 31 to the SSIA Act came into effect on 1 January 2016.
There is no dispute, and I am satisfied, that the Agreement is a scheduled international social security agreement for the purposes of reg.7AC of the SGA Regulations.
Under art.1 item 1(e) of the Agreement, “legislation” is defined as:
“legislation” means, in relation to Australia, the laws specified in subparagraph 1(a)(i) of Article 2 except in relation to the application of Part II of the Agreement (including the application of other Parts of the Agreement as they affect the application of that Part) where it means the laws specified in subparagraph 1(a)(ii) of Article 2; and in relation to India, the laws and regulations specified in subparagraph 1(b) of Article 2;
Article 2 then provides at item 1(a)(ii) that the Agreement shall apply to laws which include, in relation to Australia, “the law concerning the superannuation guarantee”. The SGA Act and the SGA Regulations are then specifically referred to. In relation to India, at art.2 item 1(b)(i) of the Agreement, the laws include old-age and survivors’ pension for employed persons. It is agreed by the parties, and I am satisfied, that the Indian EPF Act falls within art.2 item 1(b)(i) of the Agreement.
Article 6 of the Agreement deals with the purpose and application of the Agreement. It provides:
1. The purpose of this Part is to ensure that employers and employees who are subject to the legislation of India or Australia do not have a double liability under the legislation of India and Australia, in respect of the same work of an employee.
2. This Part applies only where an employee or the employer would otherwise be subject to the legislation of both Contracting Parties in respect of the work of the employee or remuneration paid for the work.
Article 8 of the Agreement provides, at items 1 and 2:
1. Unless otherwise provided in paragraphs 2 or 4 of this Article, if an employee works in the territory of one Contracting Party, the employer and the employee shall in respect of the work and the remuneration paid for the work, be subject only to the legislation of that Contracting Party.
2. If an employee:
(a) is covered by the legislation of one Contracting Party (‘the first Contracting Party’); and
(b) was sent by an employer who is subject to the legislation of the first Contracting Party to work in the territory of the other Contracting Party (‘the second Contracting Party’); and
(c) is working in the territory of the second Contracting Party in the employment of the employer or a related entity of that employer; and
(d) is not working permanently in the territory of the second Contracting Party; and
(e) a period of 5 years from the time the employee was sent to work in the territory of the second Contracting Party has not elapsed;
the employer and the employee shall be subject only to the legislation of the first Contracting Party in respect of the work performed and the remuneration paid for that work.
In these proceedings, the “first Contracting Party” was India, as the Applicant was covered by the Indian EPF Act, and the “second Contracting Party” was Australia, as the Applicant was sent by deputation to work in Australia.
There is agreement between the Applicant and Respondent that:
a)the Applicant was working in Australia in the employment of the same corporate entity: art.8 item 2(c) of the Agreement;
b)the Applicant was not, under the Deputation Contract, working permanently in Australia: art.8 item 2(d) of the Agreement; and
c)a period of 5 years has not elapsed since the time the Applicant was sent to Australia: art.8 item 2(e) of the Agreement.
Article 11 of the Agreement should be referred to because, having regard to the evidence before the Court (which, it must be emphasised, is not relevant to the determination of the Respondent’s summary judgment application) the Respondent, sometime in early 2016, commenced a process by which it sought an assent or signature to a Certificate of Coverage (“CoC”) from its employees on deputation contracts in Australia. The evidence discloses that the Respondent embarked on this process, apparently in relation to the application of the Agreement contained in sch. 31 to the SSIA Act.
Article 11 of the Agreement provides:
Where the legislation of one of the Contracting Parties is applicable in accordance with any of the provisions of this Part, the Competent Authority of the Contracting Party or their Competent Institution shall issue, upon request of the employer, a certificate stating that the employee is subject to the legislation of that Contracting Party and indicating the duration for which the certificate shall be valid. The Competent Institution of the other Contracting Party shall be entitled to receive a copy on request.
A copy of the purported CoC that the Applicant was asked or required to sign, is not in evidence. However, I can say that, whatever its format or origin, it cannot arise from art.11 of the Agreement. This is because art.11 of the Agreement places obligations on a “Competent Institution” in India and Australia, which are, pursuant to art.1 item 3(c) of the Agreement, the Employees Provident Fund Organisation in India, and the Australia Taxation Office in Australia, to issue a certificate at the request of an employer.
The Respondent’s submissions
The Respondent replies on:
a)its Outline of Submission at [30] and [49];
b)Evidence 5 and Annexure 2 in Evidence 7 attached to the Applicant’s Affidavit; and
c)the Affidavit of Mr Nishant Prakash filed 7 April 2017, save for para.11(b).
The Respondent concedes that “workplace law” as defined in s.12 of the Act, insofar as it has application to employment, includes the SGA Act.
The Respondent argues that, by reason of the operation of sch.31 to the SSIA Act, in accordance with the scheme of that Act, the SGA Act and the SGA Regulations, the Applicant has no entitlement to an “individual superannuation guarantee shortfall” under the SGA Act.
The Respondent submits that:
a)the Agreement, contained in sch.31 to the SSIA Act, applies to:
i)in Australia, the SGA Act and the SGA Regulations; and
ii)in India, the EPF Legislation.
(see art.2 items 1(a)-(b) of the Agreement)
b)consequently, the Agreement has application in this matter; and
c)in the circumstances of this proceedings, pt.II art.8 of the Agreement where the Applicant;
i)is covered by the Indian EPF Act; and
ii)was sent to work in Australia for the same corporate entity not on a permanent basis and less than 5 years;
the Respondent and the Applicant are subject only to the Indian EPF Act.
Accordingly, the Respondent submits that, for the relevant period, the Applicant did not have a workplace right under Australian superannuation legislation, nor could he have exercised or not exercised that workplace right, nor could he have proposed or not proposed to exercise that workplace right within the meaning of s.341 of the Act.
The Respondent submits that, in these circumstances, it follows that the Applicant has no reasonable prospect of successfully prosecuting his case.
The Applicant’s submissions
The Applicant relies on:
a)his Application filed on 16 March 2017;
b)the Form 4 – Claim under the Fair Work Act 2009 (Cth) filed on 16 March 2017;
c)his Affidavit filed on 20 Mach 2017;
d)his Outline of Submission filed on 10 April 2017; and
e)the Affidavit of Nishant Prakash filed on 7 April 2017.
The Applicant filed two further affidavits on 7 April 2017 and 10 April 2017, but did not serve these on the Respondent until the morning of the hearing. I have not had regard to either of these affidavits in reaching my decision.
The Applicant agrees that he and the Respondent were, at all material times, covered by the EPF legislation in India and that he was sent to Australia pursuant to the Deputation Contract of Employment by the Respondent, and worked for the Respondent not on a permanent basis and for a period of less than 5 years.
The Applicant argues, however, that art.8 of the Agreement does not operate to exclude him from the benefit of superannuation contributions payable by the Respondent under the SGA Act.
The basis for this argument is that the Applicant alleges that the Respondent has not paid or made contributions in accordance with the Indian EPF Act. The Applicant alleges that, rather than make contributions equal to 12% of his basic wage,[4] the Respondent deducted the 12% from the Applicant’s basic wage.[5]
[4] Prakash Affidavit at 11(a).
[5] Annexure NP-3 to the Prakash Affidavit.
The Applicant relies on art.6 of the Agreement which sets out the purpose and application of the Agreement (extracted in full at [31] above). His argument is that, if the purpose of the legislation is to ensure that employers do not have a double liability under the legislation of India and Australia in respect of the same work of an employee, this purpose would not be served or facilitated if the Respondent was not obliged to make contributions in accordance with Australian superannuation law. Thus, the Applicant contends that, as the Respondent is not meeting his liability under the Indian EPF Act, there can be no double liability and the exclusion in art.8 item 2 of the Agreement has no application.
The Applicant also relies, in support of his argument, on art.13 item(1)(c) of the Agreement. Article 13 of the Agreement relevantly provides:
1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
(a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the legislation of Australia for that benefit; and
(b) a period of Australian working life residence that is equal to or greater than the period identified in accordance with paragraph 4 of this Article for that person; and
(c) a period of insurance in the Employees’ Pension Scheme, 1995 of India accrued after the date of commencement of this Agreement;
then for the purposes of a claim for that Australian benefit, that period of insurance completed under the legislation of India shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia.
The Applicant argues that art.13 of the Agreement recognises circumstances where an employer has not paid their liability to an employee, and allows for the employee to be covered by relevant Australian legislation. He argues that art.13 of the Agreement recognises equality of treatment.
Consideration
The definition of “workplace law” in s.12 of the Act is as follows:
workplace law means:
(a) this Act; or
(b) the Registered Organisations Act; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
I am satisfied that subsection (d) of that definition embraces the SGA Act. In my opinion, the scheme of the SGA Act is directed to the relationship between employers and employees, so far as contributions by employers to superannuation funds or schemes are concerned. Section 19 of the SGA Act, in particular, confers a benefit on an employee by the imposition of an employer of a surcharge, where an employer fails to make contributions in compliance with the individual superannuation guarantee shortfall (which is presently calculated by the application of 9.25% of the total wages or salary paid by the employer to an employee each quarter).
There are prescribed exclusions to s.19 of the SGA Act. By s.27 of the SGA Act, Regulations may be made which exclude the operation of s.19 of the SGA Act. Regulation 7AC of the SGA Regulations, together with reg.2 of the SGA Regulations, makes it clear that an agreement falling within the meaning of s.5(1) of the SSIA Act, will have the effect of excluding any wages or salaries where an international security agreement provides that the employer to which the wages relate is not subject to the Act, in relation to the work for which salary or wages were paid. I have found that the Agreement contained in sch.31 to the SSIA Act falls within the meaning of s.5(1) of the SSIA Act.
I am satisfied that, by art.8 of the Agreement, the Respondent was excluded from having to contribute to a relevant fund under s.19 of the SGA Act. Schedule 31 came into operation on 1 January 2016.
This is because:
a)the Agreement applied to the SGA Act and to the SGA Regulations in Australia, and the old-age and survivors pension for employed persons in India, the relevant Indian legislation being the Indian EPF Act: art.2 items 1(a)(ii) and 2(b)(i) of the Agreement;
b)Article 8 item 1 of the Agreement relevantly has the effect that, subject to item 2, the Applicant and Respondent are subject to the SGA Act and the SGA Regulations;
c)the circumstances surrounding the deputation of the Applicant to work in Australia meet each sub-paragraph of art.8 item 2 of the Agreement (see [34] above). The Applicant was sent to Australia by the Respondent to work for the same corporate entity, not on a permanent basis, under a Deputation Contract. That contract expired in a period of less than 5 years; and
d)consequently, the Applicant and the Respondent were subject to the Indian EPF Act as from 1 January 2016.
The Applicant’s submissions, based on what he alleges is a failure by the Respondent to make contributions in accordance with the Indian EPF Act, raises an issue of a disputed fact and may well constitute a reason for not finding that the Applicant does not have a reasonable prospect of success of prosecuting the proceeding and allowing him to proceed to trial.
However, the Applicant’s submission as to the relevance of this disputed fact to the operation of the Agreement must be rejected for the following reasons.
Firstly, the Agreement is concerned with the coverage and application of legislation in relation to superannuation or pension funds in India and Australia. So much is apparent from the following:
a)Article 2 item 1 of the Agreement which commences with the words, “This Agreement shall apply to the following laws...” Article 2 then refers to “in relation to Australia” and “the laws concerning the superannuation guarantee” (item 1(a)(ii)) and “in relation to India, all legislation concerning” “old-age and survivors pension for employed persons” (item 1(b)(ii));
b)Article 8 item 1 of the Agreement provides that, unless otherwise provided in paragraphs 2 and 4 of that article, an employee and employer are “subject only to the legislation of” a country (in this case, Australia), in which an employee works (my emphasis);
c)Article 8 item 2(a) of the Agreement refers to an employee being “covered by the legislation” of the first Contracting Party or, in this case, India; and
d)the exemption contained in art.8 item 2 of the Agreement relates “only to the legislation” of India.
The Applicant relies on art.6 item 1 of the Agreement to make good his case. This Article, setting out the purpose of the Agreement, does refer to a purpose, which is to ensure that employers do not have a “double liability” under Indian and Australian legislation. However, the reference to liability cannot be, in my opinion, construed as a liability which is only given effect to under relevant legislation. The reference to liability must be construed only as the obligation which the legislation imposes. It would be a curious result if the exemption in art.8 item 2 of the Agreement had no operation merely because an employer failed to make contributions in accordance with the Indian EFP Act. If the application of art.8 item 2 of the Agreement were dependent on conformance by an employer with legislation, then this would be productive of uncertainty in relation to the application of the Agreement. It must be assumed that such uncertainty was not intended by the contracting parties to the Agreement.
Furthermore, the use of art.6 of the Agreement, which is equivalent to an objects clause in legislation, cannot cut down or enlarge the plain and unambiguous meaning of a provision if that meaning, in its textual context, is clear: see DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed) at p.157 and the authorities cited therein.
In my opinion, having regard to the plain meaning of the text of art.8 of the Agreement and its context, the exemption in art.8 item 2 of the Agreement is concerned with the coverage or applicability of superannuation or pension legislation in India and Australia to employers and employees, in relation to the same work. It is not concerned with the compliance by an employer with any obligations under the applicable legislation.
I agree with the Respondent’s submission that the Applicant’s reliance on art.13 of the Agreement is misconceived. Article 13 of the Agreement is concerned with claims to an Australia “benefit”. Benefit is defined in art.1 item 1(a) of the Agreement to refer to benefits in the nature of social security benefits, and specifically excludes benefits arising under superannuation legislation. Article 1 item 1(a) of the Agreement provides:
1. In this Agreement, unless the context otherwise requires:
(a) “benefit” means, in relation to a Contracting Party, a benefit, pension or allowance for which provision is made in the legislation of that Contracting Party, and includes any additional amount, increase or supplement that is payable in addition to that benefit, pension or allowance under the legislation of that Contracting Party, but for Australia, does not include any benefit, payment or entitlement under the law concerning the superannuation guarantee;…
Conclusion
For the reasons set out in this judgment, I find that, in the agreed factual circumstances of this case (see [10]-[14] above), the effect of the interaction of the SGA Act, the SGA Regulations, the SSIA Act and sch.31 to the SSIA Act is that the Applicant does not have an entitlement to a benefit under the SGA Act.
Accordingly, I find that the Applicant did not have the benefit of a workplace law within the meaning sub-s.341(1)(a) of the Act and thus did not have a workplace right.
As the Applicant cannot establish to my satisfaction that he has a workplace right within the meaning of s.341 of the Act, his claimed contravention of s.340 of the Act must fail.
Consequently, I find that the Applicant has no reasonable prospect of successfully prosecuting the proceeding.
An Order will be made summarily dismissing the Applicant’s Application filed on 16 March 2017.
A further Order will be made discharging the Undertaking filed by the Respondent on 21 March 2017.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 1 May 2017
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