Yang v DS Shopfitters Pty Ltd and Ors
[2020] FCCA 84
•22 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YANG v DS SHOPFITTERS PTY LTD & ORS | [2020] FCCA 84 |
| Catchwords: INDUSTRIAL LAW – Applicant claims underpayments under and breach of Joinery and Building Trades Award 2010, alternatively, breach of oral agreement – Applicant injured whilst working on public holiday – whether Applicant was covered by the Award– were pay slips provided – evidence regarding oral agreement of employment – dispute regarding the Applicant’s wages – Applicant was directed to work on-site – whether Applicant covered by the Award – whether the Applicant was constructively dismissed from his employment – whether other alleged contraventions of modern award or Fair Work Act 2009 (Cth) made out – whether adverse action against employee because of workplace right – accessorial liability of respondents. |
| Legislation: Evidence Act1995 (Cth), ss.69, 190 |
| Cases cited: Australian Building and Construction Commissioner v Construction Forestry Mining and Energy Union [2018] FCA 42 Fair Work Ombudsman v NSW Motel ManagementServices Pty Ltd & Ors (No. 2) [2018] FCCA 1935 Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 |
| Applicant: | XINGYU YANG |
| First Respondent: | DS SHOPFITTERS PTY LTD |
| Second Respondent: | HUI MIN DONG |
| Third Respondent: | CHRISTOPHER LU (AKA XIAO WEI LU) |
| Fourth Respondent: | LI XIAO (AKA ABBY XIAO) |
| Fifth Respondent: | YOUSHENG LU (AKA SAM LU) |
| File Number: | SYG 1794 of 2017 |
| Judgment of: | Judge Baird |
| Hearing dates: | 4 April 2018 and 10 April 2018 |
| Date of Last Submission: | 9 April 2018 |
| Delivered at: | SYDNEY |
| Delivered on: | 22 May 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr N Gangemi |
| Solicitors for the Respondents: | Qi Sun, Juris Cor Legal |
ORDERS
DECLARES that on about 20 March 2017 the First Respondent, DS Shopfitters Pty Ltd dismissed the Applicant, Mr Xingyu Yang.
DECLARES that DS Shopfitters contravened s.340(1) of the Fair Work Act 2009 (Cth) in taking adverse action against Mr Yang by:
(a)dismissing Mr Yang; and
(b)its conduct in emailing CGU Insurance in July 2017.
DECLARES that DS Shopfitters has failed to pay superannuation and is liable for a superannuation shortfall in the sum of $1,197 in the manner stipulated in the Superannuation Guarantee Administration Act 1992 (Cth) in respect of Mr Yang’s employment.
DECLARES that DS Shopfitters has not provided pay slips in accordance with s.536 of the Act, and regs.3.45 and 3.46 of the Fair Work Regulations 2009 (Cth), and has thereby contravened the Act.
ORDERS that DS Shopfitters pay Mr Yang the sum of $30,373.
ORDERS that DS Shopfitters pay the further sum of $12,000 by way of compensation pursuant to s.545 of the Act.
DIRECTS that by 5 June 2020, the respondents serve written submissions, in each case limited to 3 pages, in respect of:
(a)Mr Yang’s application for awards of $15,000 and $2,000 in addition to the compensation ordered in paragraph 6 of these Orders;
(b)Mr Yang’s application pursuant to s.570 of the Act for reimbursement of expenses, filing fees, and other disbursements; and
(c)calculation of pre-judgment interest pursuant to s.547 of the Act.
DIRECTS that by 5 June 2020, Mr Yang file and serve a calculation and written submission, limited to a maximum of 3 pages, in respect of the calculation of pre-judgment interest pursuant to s.547 of the Act.
DIRECTS on or before 29 May 2020, the parties to confer and, if possible, bring in a minute of proposed orders to be made to give effect to these reasons for decision, limited to the matters not provided for in the preceding paragraphs of these Orders.
ORDERS that in the event of any dispute as to the form of any order directed pursuant to paragraph 9:
(a)the applicant file and serve a draft minute of orders accompanied by an outline of submissions (limited to 3 pages) addressing any disputed question in that respect by 4pm on 5 June 2020; and
(b)the respondents file and serve a draft minute of any alternative orders accompanied by an outline of submissions (limited to 3 pages) addressing any disputed question in that respect also by 4pm on 5 June 2020.
ORDERS that any question with respect to paragraphs 7, 8, 9, and 10 of these Orders shall be resolved on the papers unless in written submissions filed in accordance with the allocated timetable either party seeks an oral hearing, in which case the matter be listed on 12 June 2020, or such other date as the Court fixes administratively, to make orders on the disputed questions.
STANDS OVER the remainder of the proceeding to 12 June 2020, or such other date as the Court fixes administratively, to program the further conduct of the proceedings in relation to the penalties, if any, that should be imposed on the respondents for the breaches of the Act referred to in the accompanying reasons for decision.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1794 of 2017
| XINGYU YANG |
Applicant
And
| DS SHOPFITTERS PTY LTD |
First Respondent
| HUI MIN DONG |
Second Respondent
| CHRISTOPHER LU (AKA XIAO WEI LU) |
Third Respondent
| LI XIAO (AKA ABBY XIAO) |
Fourth Respondent
| YOUSHENG LU (AKA SAM LU) |
Fifth Respondent
REASONS FOR JUDGMENT
A. Introduction
This is an application pursuant to the general protection and other provisions of the Fair Work Act 2009 (Cth), including s.340, for orders in relation to the former employment of the applicant, Mr Xingyu Yang, also known as William Yang, and his claim for compensation for underpayment of wages and entitlements for alleged breach of his contract of employment, which claims arise out of the same substratum of facts.
This Court has jurisdiction pursuant to s.566 of the Act in respect of Mr Yang’s claims arising under the Act, and in respect of associated matters, pursuant to ss.10 and 18 of the Federal Circuit Court of Australia Act1999 (Cth).
Mr Yang was employed by the first respondent, DS Shopfitters Pty Ltd, commencing in September 2015, and worked until he was injured and hospitalised with serious crush injuries on 13 June 2016, a public holiday Monday, in the course of his employment at the worksite at the Capalaba Park Shopping Centre, Queensland, where DS Shopfitters was undertaking a shop fit‑out of the Ally Fashion Store.
Mr Yang did not return to work.
Mr Yang commenced a proceeding in this Court in November 2016 for certain underpayments of his wages and entitlements against the first and third respondents (2016 proceeding).
Mr Yang formed the view by about 20 March 2017 that DS Shopfitters, through its conduct, acted in a way that demonstrated it either no longer employed him, or intended to no longer employ him. On about 20 March 2017, he accepted the repudiation of his employment contract by DS Shopfitters and brought an application pursuant to s.365 of the Act before the Fair Work Commission (FWC), alleging he was dismissed by DS Shopfitters in contravention of Part 3-1 of the Act. The FWC conducted a conciliation conference on 4 May 2017, which was unsuccessful. On 30 May 2017, the FWC issued a certificate under s.368 of the Act, attesting to that fact.
On 8 June 2017, Mr Yang then commenced proceeding SYG 1794 of 2017 in this Court for adverse action pursuant to s.340 of the Act (2017 proceeding). The 2016 and 2017 proceedings were consolidated by order made 29 September 2017, and constitute the proceeding heard before me. I provide further history of the proceedings in this Court below in Part D.
B. The parties
The applicant
At the time of his injury Mr Yang was 27 years old. He held a Bachelor of Economics and Social Science specialising in finance obtained from Manchester University, England, further to 3 years study, completed in about 2010-2011. He completed accounting subjects as part of his degree, but did not major in accounting. He does not have any trade qualifications. He is a native Cantonese speaker, and speaks English competently. He conducted his case in person.
The first respondent
The first respondent, DS Shopfitters, was registered August 2015. It has a paid up share capital of $2. It is a small company, and does not appear to have many employees. DS Shopfitters primarily engages in the shopfitting industry, undertaking retail shop fit-outs in New South Wales, and interstate, including in Queensland and South Australia. It is a national system employer under the Act.
According to the records filed with Australian Securities & Investment Commission (ASIC), upon registration of DS Shopfitters in 2015, the second respondent, Ms Hui Min Dong, her son, the third respondent Mr Christopher Lu (also known as Xiao Wei Lu), and another person, Yanfang He, were appointed directors, and Yanfang He was also appointed secretary of the company.
Yanfang He ceased to be a director and secretary on 2 May 2016, although the company’s bank transaction receipts reveal that thereafter Yanfang He continued to authorise DS Shopfitters’ wage payments to Mr Yang.
Ms Dong ceased to be a director on 10 May 2017 (according to ASIC Current & Historical Company extract for DS Shopfitters as at 6 June 2017 in evidence before me, which also records that the formal change to company details documentation was lodged with ASIC on 31 May 2017). I note that Ms Dong’s cessation of directorship occurred about 6 weeks after Mr Yang claims he was dismissed, and the week after the FWC conciliation conference was held.
From May 2017, Mr Christopher Lu has been the sole director, secretary, and shareholder of DS Shopfitters. At least from 5 May 2017, he has held the two issued $1 shares in the company. Whilst at some earlier time each of Ms Dong and Yanfang He held a share in the company, it is not clear from the ASIC records precisely when they did so.
The second respondent
The second respondent, Ms Dong, is the mother of Mr Christopher Lu, and the wife of the fifth respondent, Mr Sam Lu. She did not file any evidence in the proceeding. The respondents submitted that she had no involvement in DS Shopfitters’ business, or its conduct in relation to Mr Yang, notwithstanding the fact and timing of her correspondence regarding Mr Yang’s wages in evidence before the Court to the company’s accountants, Shum Liang & Associates, regarding Mr Yang’s wages, and correspondence with the occupational rehabilitation provider Kairros Pty Ltd, the entity managing Mr Yang's workers compensation rehabilitation.
The third respondent
The third respondent, Mr Christopher Lu, is the son of the second and fifth respondents. According to the ASIC records of DS Shopfitters he was born in China in 1991, and resides at the same residential address as his parents.
Mr Christopher Lu did not file any evidence in the proceeding. The respondents submitted that he had no involvement in DS Shopfitters’ business, or its conduct in relation to Mr Yang, and that he was overseas at material times.
Mr Yang’s evidence is that Mr Christopher Lu interviewed Mr Yang for his job in September 2015, and employed him at a gross base salary of $1,200 per week, and payment for overtime, equating to $62,400 gross per annum plus overtime as performed.
The fourth respondent
The fourth respondent, Ms Li Xiao (also known as Abby, and as Xiao Li), is an employee of DS Shopfitters. Ms Li arrived in Australia in about mid‑2015. She was interviewed by Mr Yang in December 2015, and was employed in a bookkeeping and clerical role, initially as Mr Yang’s assistant. She had no previous experience in Australia. Her affidavit evidence is that at her interview she said she had experience in China, although none is described. She was promoted upon Mr Yang’s injury. Ms Li affirmed one affidavit in the proceeding, in English and dated 27 September 2017.
Ms Li describes herself as “clerk and accountant”, and in the body of her affidavit attests that she is employed by DS Shopfitters as “an office clerk with bookkeeping duties”. Relevantly, she does not say she works for any other business or company than DS Shopfitters.
Ms Li was paid $74,724 per annum as at July 2016 when she succeeded Mr Yang after he was injured.
The fifth respondent
The fifth respondent, Mr Sam Lu (also known as Mr Yousheng Lu), is the manager of DS Shopfitters. Mr Sam Lu manages the daily operation of the company. He made two affidavits relied on in the proceeding, both affirmed on 27 September 2017 (one of 29 paragraphs, filed in the 2017 proceeding – first affidavit), and one of 35 paragraphs, filed in the 2016 proceeding - second affidavit). He disputes Mr Yang’s account and claims. Mr Sam Lu attested that he has been in the business of shopfitting for more than 10 years. He stated that he has limited understanding of English - sufficient English skill to engage in basic daily conversations, but not to engage in lengthy conversation or read complex English documents such as legal documents. He stated that he is constantly out of the office at various work sites.
The evidence demonstrates that Mr Sam Lu speaks on behalf of the company, and provided direction on behalf of DS Shopfitters to Mr Yang and to Ms Li.
Mr Sam Lu says DS Shopfitters’ engaged Mr Yang at a gross annual base salary of $36,000 or thereabouts. Mr Sam Lu defends paying Ms Li $74,724 per annum on the basis she does work for him for two companies. However, there is no evidence that Mr Lu is an officeholder or shareholder of any company, or that he has any role in any other company than DS Shopfitters.
C. Factual background
Mr Yang’s employment
On about 14 September 2015, Mr Yang commenced employment with DS Shopfitters as a clerk and bookkeeper with the title “accountant”.
Although there is agreement that Mr Yang was employed by DS Shopfitters pursuant to an oral agreement, as will be apparent in the course of these reasons, there is dispute between Mr Yang and the respondents as to the terms on which Mr Yang was employed, as to his salary, his position and duties when injured, and most other aspects of his employment, the consequences of his injury, and whether he was constructively dismissed by 20 March 2017, or at all.
Very early on in his employment Mr Yang undertook induction training for one of the company’s shop-fitting sites at North Sydney, and from about 28 September 2015, he was undertaking project administration and client and supplier liaison as well as other office duties, and materials and equipment procurement tasks for the company’s shop‑fitting jobs. Thereafter he also worked on site, both in Sydney and interstate. Commencing on 24 November 2015, he worked as part of a small team undertaking shopfitting in Adelaide for a 3 week period, as well as performing his usual office duties.
After Ms Li was engaged in December 2015, and was assisting Mr Yang in office duties, he continued to undertake office duties, and project administration duties, and also to work on-site. It appears that during 2016, as Mr Yang spent more time on the operational aspects of the company’s business and on-site, Ms Li assumed more of the bookkeeping work for DS Shopfitters.
I discuss Mr Yang’s work duties with DS Shopfitters before his accident further below (at Part I(v) at [152] and following).
Mr Yang’s work accident
As I have said above, Mr Yang was injured on 13 June 2016 whilst working for DS Shopfitters undertaking a shop fit-out at Capalaba.
The hospital records in evidence record that Mr Yang was admitted as a “27-year-old male emergency admission for crush injury – multiple fractures” with fracture injuries to his pelvis. He was admitted to the hospital’s intensive care unit. Mr Yang was managed conservatively. He spent at least three weeks in hospital in Queensland.
Mr Yang described his injuries in the Work Health and Safety Act 2011 (Qld) Incident Notification Report Summary that he submitted to WorkCover Queensland on 9 August 2016 as follows (without alteration):
Employee was pushing plasterboard on small trolley, plasterboard was longer than trolley – 35 sheets of plasterboard on trolley. When trolley was pushed trolley fell over onto employee, employee was underneath plaster board on ground. Employee was trapped underneath plasterboard from stomach and below. Other two workers could not lift, shoppers came to help to lift up plasterboard and another shopper pulled employee from beneath. Not (sic) details were recorded regarding shoppers who assisted. Security arrived and phoned ambulance.
Mr Yang required ongoing physiotherapy. It is not disputed that none of the respondents, and no person working for the company, visited him whilst he was in hospital, or assisted him when he was discharged, or with his flight back to Sydney.
Whilst in the Amended Defence the respondents have denied that Mr Yang suffered serious crush injuries while working on‑site in Brisbane (it appears because they deny that his work duties encompassed physically working on‑site), the respondents do not dispute that Mr Yang did not return to work after being injured.
At the time he was injured, Mr Yang described himself as a “site manager”. Whilst the respondents dispute this description, it is self‑evident from the circumstances of his injury, and also the evidence of Mr Yang’s schedule summarising the work he did (which I admitted into evidence and refer to in these reasons as Mr Yang’s work schedule), that by the time of his injury, and at least several some months beforehand, Mr Yang was present at, at least partly responsible for, and working in the physical performance of, the fitting out of retail premises that is DS Shopfitters’ business, whilst also continuing to perform office duties and project administration duties.
Respondents’ conduct post-injury (period to January 2017)
Mr Yang says that whilst in hospital when injured, he discovered that DS Shopkeepers:
(a)had not promptly notified Work Health and Safety Queensland, the relevant regulator of the work accident site (under s.38 of the Work Health and Safety Act 2011 (QLD)), and that he had to notify them himself, which he did on 9 August 2016. I note that Mr Sam Lu for DS Shopfitters later notified the regulator on 30 August 2016, although in that notification the date of injury was incorrectly stated. Mr Sam Lu identified the hazard classification as “Category: Manual Tasks”, and the issue as “Load handling”;
(b)had not paid his superannuation;
(c)had underpaid his salary, contrary to his agreement, and
(d)had failed to comply with all its regulatory obligations.
It was only later, and at least by 8 March 2017, that Mr Yang also found out that DS Shopfitters had failed to inform the Australian Taxation Office (ATO) of his taxation file number (TFN) – which failure is not disputed, and, so the evidence establishes, not submitted to the ATO any PAYG withheld tax amounts before Mr Yang was injured.
Threatening text messages from Mr Sam Lu
Initially, by email on 11 July 2016 to Ms Li, Mr Yang asked DS Shopfitters to pay his superannuation entitlements. In response to his request for payment of his superannuation, on 12 July 2016 Mr Sam Lu sent Mr Yang a text message, Mr Yang says threatening him. The text message comprised text sent in 3 tranches. The text message is in evidence before me, both in Chinese and translated into English by a NAATI qualified translator. The text message, translated in English, is as follows:
Have I (Lu) ever treated you badly? Think about it.
You want to protect your own interest and I support it, but not at the expense of others.
No matter whether you have experience or not, the law is just. Do not do things that harm others while at the same time do not benefit yourself.
You won't end well.
You have changed into another type of person, not the type I thought you were. I was wrong about you.
Failure to pay superannuation
DS Shopfitters did not pay Mr Yang any superannuation when requested in July 2016. Indeed, the company’s bank transaction statements in evidence do not show that any superannuation was paid in respect of any employees until after Mr Yang raised the matter. However, as I state further below (see Part I), I do not consider that DS Shopfitters failed to comply with its obligations to pay Mr Yang’s superannuation entitlements, or the amount of superannuation that he claimed he was owed, because Mr Yang pursued his claim for superannuation. Rather, DS Shopfitters simply had not complied with its statutory obligations to pay superannuation, and did not pay superannuation.
Mr Yang sought assistance from the ATO and lodged a query with the ATO on 9 August 2016 in relation to his unpaid superannuation, with a supporting calculation based on a weekly gross wage of $1,200. Sometime afterwards, DS Shopfitters informed the ATO that it had paid Mr Yang’s superannuation entitlements. By letter dated 26 October 2016, the ATO advised Mr Yang: “We've been advised that contributions for the period you reported have been made to ANZ Smart Choice Super, membership number [provided, and redacted] and all the money owed to you has been paid” (emphasis added). In reliance on the company’s assurance, the ATO closed the query.
There is a dispute whether ultimately all Mr Yang’s superannuation entitlements were paid, or whether his entitlements were paid only up to March 2016. The resolution of this dispute turns on whether Mr Yang’s base salary was contracted as $1,200 gross per week, and thus $62,400 per annum, as Mr Yang says Mr Christopher Lu offered him and Mr Yang accepted, or $36,000 per annum, as the respondents more or less contend, which would equate to $600 gross per week.
Mr Yang’s further pursuit of his claims
Mr Yang pursued his claims for underpayment. In sum, from at least July through September 2016, Mr Yang requested payment from DS Shopfitters for the company’s failure to pay him what he asserted he was owed, made enquiries to the ATO, and made enquiries to, and sought assistance, from the Fair Work Ombudsman (FWO). On about 6 October 2016, Mr Yang lodged a complaint with the NSW Anti‑Discrimination Board.
On 18 November 2016, following breakdown of an apparent resolution at mediation on 4 November 2016 before the FWO, Mr Yang brought the 2016 proceeding in this Court against DS Shopfitters and Mr Christopher Lu for underpayment.
There is no evidence of any management plan for Mr Yang to return to work. There is a dispute whether there was any proposal of any alternative position /duties made by DS Shopfitters to Mr Yang when he attended a third party premises on 11 January 2017, further to a request by a representative of Kairros.
It is not in dispute, however, that none of the respondents ever made any written proposal or offer for Mr Yang’s continued employment in any capacity. There is no evidence before me that any proposal was articulated or made. Further, and consistently, Mr Sam Lu positively affirms that none of the respondents made any direct contact with Mr Yang after January 2017.
Mr Yang’s evidence is that Mr Sam Lu contacted him by text message on 11 January 2017, after Mr Yang’s hand delivered the 2016 proceeding Court documents to Ms Dong at her’, Mr Sam Lu’s and Mr Christopher Lu’s home for Mr Christopher Lu. Mr Sam Lu texted that his son, Mr Christopher Lu, was in Japan. This appears to be the last communication Mr Sam Lu had with Mr Yang.
As I have said above, Mr Yang formed the view by about 20 March 2017 that DS Shopfitters, through its conduct, acted in a way that demonstrated it either no longer employed him, or intended to no longer employ him, and accepted the repudiation.
D. Overview of proceedings in this Court
2016 Proceeding
On 18 November 2016, by application and accompanying Form 5, Mr Yang commenced the 2016 proceeding against the first and third respondents (DS Shopfitters and Mr Christopher Lu) in the small claims list in this Court, seeking underpayment of wages and superannuation and interest, following failure of the dispute to resolve further to mediation conducted on 4 November 2016 before the FWO.
In that application Mr Yang stated his occupation as “site manager”, performing “shopfitting services”, and that he was covered under Level 6 of the Joinery and Building Trades Award 2010, a modern award within the meaning of the Act. He attached to his Form 5 a detailed schedule setting out the work performed by him in the period 21 September 2015 to 13 June 2016, with details of dates, hours and rates (ordinary and overtime), locations of work performed, co‑workers present, and a short description of tasks (in evidence before me, this is the work schedule I have referred to above at Part C, [34]). He also set out an account of the history of the dispute, and his enquiries with the FWO, and others.
On 11 January 2017, Mr Yang hand delivered the Court documents to Ms Dong at the Lu’s home to give to Mr Christopher Lu. It follows that it is reasonable to conclude, and I so find that the first, second, third and fifth respondents have been on notice of the work schedule since 11 January 2017.
Despite service of the Court documents on DS Shopfitters, and their hand delivery to the Lu’s home for the attention of Mr Christopher Lu, the respondents did not appear on the first court date on 17 February 2017. Judge Altobelli in this Court entered default judgment in favour of Mr Yang, ordering the respondents DS Shopfitters and Mr Christopher Lu to pay Mr Yang the sum of $18,581.09 within 30 days, and that on receipt of the superannuation component of $1,569.60, Mr Yang pay that sum into his superannuation fund.
On 3 March 2017, with leave, Mr Yang filed an amended Form 5 increasing the amounts claimed for underpayment of wages, superannuation, and interest, and expanding on his claim under the Award. Extensive further supporting documents were attached to the amended Form 5 (including a copy of the work schedule, supported by telephone records, purchasing invoices and travel documentation).
When the respondents failed to pay, Mr Yang commenced proceedings in the Local Court to enforce the judgment, and in May 2017 obtained a garnishee order against DS Shopfitters.
On 2 June 2017, shortly after the FWC issued a s.365 certificate (see immediately following) consequent upon the FWC holding an unsuccessful conciliation conference, the respondents filed an application in a case seeking to re‑open the 2016 proceeding and to set aside the default judgment.
2017 proceeding
As I have said above (see at [6]), following his claimed dismissal by 20 March 2017, Mr Yang applied to the FWC, which on 4 May 2017 held a conciliation conference that did not resolve the dispute. On 30 May 2017, the FWC issued its s.365 certificate.
On 8 June 2017, Mr Yang commenced the 2017 proceeding against the first, second and third respondents (DS Shopfitters, and directors Ms Dong and Mr Christopher Lu), filing a second originating application in this Court, and an accompanying Form 2 (claim alleging dismissal in contravention of a general protection), seeking injunctive relief, compensation and pecuniary penalties for adverse action under s.340 of the Act taken by DS Shopfitters (see above at [7]).
Some further procedural history
It appears from the Electronic Court File that on 9 June 2017 the further enforcement of the default judgment in the 2016 proceeding was stayed until the directions hearing in that proceeding on 21 July 2017, and thereafter the proceeding was treated as continuing, although the orders on the Court file do not reveal that any orders were made re‑opening the case, setting aside the default judgment or extending the stay. At hearing before me, Mr Gangemi for the respondents informed the Court from the Bar table that as Mr Yang had garnisheed some of the amount of the default judgment the respondents had not sought to unwind the orders and require Mr Yang repay any garnisheed sums. I have not been able to ascertain the true position from the parties or the Electronic Court File.
It is not necessary for present purposes to recite all of the many and various interlocutory and procedural steps that have ensued in each proceeding as they passed through the dockets of various judges in this Court. It suffices to record that by orders made 29 September 2017, the 2016 proceeding was consolidated with the 2017 proceeding.
Following consolidation, by orders made on 6 October 2017, Judge Cameron in this Court ordered Mr Yang to file and serve an amended application, amended Form 2 and any further affidavits he intended to rely on by 2 November 2017 to allow Mr Yang to incorporate all his claims across the two proceedings into the one document. His Honour also ordered the respondents to file and serve by 30 November 2017 a response to the amended application and amended Form 2 together with any further affidavits on which they will rely. His Honour listed the matter for further directions on 1 December 2017, at which directions hearing he listed the matter for hearing.
On 2 November 2017, further to the Court’s orders, Mr Yang filed an amended application and an amended Form 2, and joined the fourth and fifth respondents (Ms Li, and Mr Sam Lu). These are the form of the pleadings pressed at the final hearing. Mr Yang filed and served a further affidavit. The respondents filed their amended defence and responses, but did not file any further evidence.
On 20 February 2018, the matter was transferred to my docket. The matter came before me on 4 April 2018 for final hearing. Prior to the hearing, in compliance with the pre-trial directions, Mr Yang filed a written outline of submissions on 21 March 2018. Contrary to the Court’s orders made on 1 December 2017, the respondents did not file any submissions prior to or at the commencement of hearing.
E. Brief overview of the parties pleaded claims and contentions / referenced provisions of the Act
By his Form 2 amended claim filed 2 November 2017, further to consolidation of the 2016 and 2017 proceedings to become the proceeding before me, Mr Yang claims injunctive remedies (not pressed at hearing), compensation and pecuniary penalties for adverse action, and for underpayment of wages, superannuation, annual leave, accident pay and termination payments, and also claims general damages and the imposition of various penalties.
Mr Yang claims that he is entitled to be paid according to the Award. Mr Yang claims that he was underpaid in breach of the Award.
Further, or it appears alternatively, Mr Yang claims that he has been underpaid in breach of the oral agreement he entered into with DS Shopfitters (the company acting through its director, Mr Christopher Lu) to be paid a gross base wage of $1,200 per week, plus overtime.
Mr Yang claims that the respondents have contravened the following provisions of the Act: s.45 (contravention of terms of a modern award), s.340 (adverse action because of the exercise or proposed exercise of workplace rights), s.343 (coercion not to exercise such a right), s.351 (discrimination – adverse action because of a physical disability), s.352 (dismissal whilst temporarily absent whilst injured), and s.536 (failure to provide pay slips within one working day).
Although s.550 is not expressly pleaded, on a fair reading of the pleading it is clear that Mr Yang claims that the second to fifth respondents (collectively, the individual respondents) are involved in DS Shopfitters’ contraventions of the civil remedy provisions (see above provisions alleged contravened, claiming 6 contraventions under the Act), and that he claims, pursuant to s.550 of the Act, they have each contravened those provisions and are liable for DS Shopfitters’ contraventions. The respondents’ answering pleading accepts that the individual respondents are asserted to be liable pursuant to s.550 of the Act, and denies liability.
By their Amended Response filed 30 November 2017, the respondents opposed all orders sought, sought orders that the individual respondents be removed from the proceeding, and contended that: (1) Mr Yang was never dismissed by DS Shopfitters, but refused to participate into suitable employment; and (2) he was not underpaid by DS Shopfitters. For the reasons that I expand upon below, I do not accept either of these contentions.
In the respondents’ Amended Defence also filed 30 November 2017, save for admitting that Mr Yang commenced employment, and the personal relationships of the individual respondents, they comprehensively deny Mr Yang’s allegations and his claims, even to the extent of denying (contrary to the facts disclosed in the ASIC records), that Mr Christopher Lu, the third respondent, is a director of DS Shopfitters.
In sum, the respondents dispute that Mr Yang is covered by the Award, that he was constructively dismissed, or dismissed at all, that he was underpaid (whether under the Award, or in breach of his oral contract of employment), that they did not provide pay slips (although the evidence establishes that DS Shopfitters did not provide any pay slips), that Mr Yang worked on‑site in an occupation covered by the Award, and deny the individual respondents’ involvement and liability pursuant to s.550 of the Act.
Further, in their pleading, the respondents positively aver:
(a)that Mr Yang had received a total of $45,600 from DS Shopfitters;
(b)that prior to default judgment in the 2016 proceeding, Mr Yang obtained “about $6,000” from at least one of the respondents’ accounts (which was subsequently asserted to be paid without authorisation); and
(c)that in September 2017 they informed DS Shopfitters’ workers compensation insurer (CGU Insurance) of a mistake in reporting Mr Yang’s pre‑accident wages, submitting that the company had relied on Mr Yang’s misleading advice in June 2016, and that Mr Yang had been overpaid workers compensation.
As I expand upon below in these reasons, none of the respondents’ affidavit evidence read in the proceeding, nor the cross-examination of Mr Yang, establish the actual amounts they claim Mr Yang has in fact received as at the date of hearing (whether gross or net), and whether taking into account payment of superannuation or not. Further, the respondents have not substantiated their contention that prior to default judgment in the 2016 proceeding, Mr Yang obtained “about $6,000” from at least one of the respondents’ accounts without authorisation. On the evidence that contention did not rise any higher than bare assertion.
F. Conduct of the hearing before me
Mr Yang appeared for himself at the hearing, and conducted his case in English. Mr Gangemi of counsel, instructed by Mr Qi Sun, solicitor, appeared for the respondents, having been recently briefed. The hearing was part heard on 4 April 2018, and I adjourned the matter for further hearing to 10 April 2018.
At the end of the first day, I granted leave to Mr Yang to file an affidavit in reply responding to disputed conversations in which he was asserted to have participated, and giving his version what was said. I requested from the respondents a schedule referencing the documents in evidence which identified what had been paid, when and how, and the amount garnisheed from the company. I did not receive such a schedule.
I requested from Mr Yang a clear statement of what he said was outstanding at what time, and what claims or disputes had been resolved (such as with the workers compensation insurer, CGU Insurance, and the ATO).
As Mr Yang had challenged whether DS Shopfitters was still trading and its status, I allowed the parties to put on evidence about that matter. I invited written outlines of submissions.
On 9 April 2018, Mr Yang filed some further evidence, and an outline of closing submissions entitled “Complementary submissions and submissions on compensation plus [Court seal obscures] in proceedings of SYG1794/2017”. That document included a refinement and expansion of the amounts claimed by way of remedy, and reimbursement, and submissions on penalty, the matters relevant to penalty, set out Mr Yang’s calculations in support of the amounts claimed by way of remedy and reimbursement, and made “recommendations” for penalties under the Act.
The respondents filed a skeleton closing outline, and a short affidavit affirmed by Fangyu Jin, solicitor, annexing a company search of DS Shopfitters current as at 6 April 2018, showing that the company remained registered, but not whether or not it continued to trade, which was read in the proceeding on 10 April 2018. As I have stated, the respondents did not provide any schedule of payments cross‑referenced to evidence. Subsequently, in oral submissions Mr Gangemi relied on a one page, undated, untitled summary document exhibited to Mr Sam Lu’s second affidavit made in September 2017 (Respondents wage calculation). I consider this document further below. The respondents did not file any submissions on penalty, consistent with their denial of any liability.
Applicant’s affidavits
At the hearing Mr Yang read 8 affidavits affirmed by him in one or other of the 2016 proceeding and the 2017 proceeding, and after consolidation: affidavits affirmed and filed on each of 19 January 2017, 7 June 2017, 8 June 2017, 24 August 2017, 29 November 2017, 7 February 2018 (subject to the ruling following immediately below), 29 March 2018, and 9 April 2018. Each affidavit was read subject to the Court’s evidentiary rulings. I also admitted in evidence the work schedule and certain other documents attached to the amended Form 5 in the 2016 proceeding, and tendered by Mr Yang.
I deferred ruling on objections to Mr Yang’s affidavit affirmed 7 February 2018. On 4 April 2018 I gave the respondents leave to file evidence on the subject matter of the objected to material. The parties conducted themselves on the basis the material was admitted. I now formally admit the exhibit to Mr Yang’s affidavit affirmed 7 February 2018, pursuant to s.69 of the Evidence Act 1995 (Cth), as documents being business records of DS Shopfitters (in the nature of bank statements, correspondence in the course of trade and with accountants Shum Liang, or corporate searches), and otherwise in reliance on s.190 of the Evidence Act. I admit the body of the affidavit in so far as it identifies the exhibit, and otherwise reject paragraph 2 of the affidavit, as argument.
The exhibit evidence now formally admitted into evidence comprises documents DS Shopfitters brought into existence in 2017, a bank statement for the company for the period 1 July 2017 - 30 September 2017, correspondence between Ms Li and DS Shopfitters’ accountants, Shum Liang, setting up a new company through which to trade – L&Y Constructions Pty Ltd, instructing Shum Liang to close DS Shopfitters, and cancel the directorship of Ms Dong, correspondence relating to trading under that new company, and a name search of the Australian Business Name Register and ASIC search further to Mr Yang’s concern that a new company has been established. As I have said, in response the respondents read Fangyu Jin’s affidavit affirmed 6 April 2018, annexing a then current company search of DS Shopfitters.
Respondents’ affidavits
The respondents relied on Mr Lu’s first affidavit and his second affidavit (both affirmed 27 September 2017), affidavit affirmed by Ms Li of the same date, affidavit of Mr Qi Sun, solicitor, affirmed and filed 26 June 2017 (submission, and part exhibit not pressed), and the affidavit of solicitor Fangyu Jin affirmed 6 April 2018. Subject to my rulings on admissibility (in particular, rejecting hearsay, and admitting some parts as submission only), those affidavits comprised the respondents’ evidence.
Oral evidence
At the resumed hearing on 10 April 2018, Mr Yang was cross-examined. I thus had the opportunity to observe Mr Yang in the witness box. Whilst he was determined in his case, and in his view as to the respondents’ treatment of him, I consider that he gave his evidence honestly, and to the best of his recollection. I find Mr Yang a credible witness. I accept his account.
Mr Yang did not require any of the respondents’ witnesses for cross‑examination.
G. Amounts claimed
Mr Yang claims various sums from the respondents for the various breaches and contraventions alleged, which amounts have evolved over time and which I summarise by reference to the Amended Claim and his closing submissions as:
(a)amounts for underpaid wages (at a gross wage of $1,200 per week), for the period from commencement of employment until the date he was injured (calculated as $1,200 x 38 weeks, less $32,027 received) totalling $13,573;
(b)underpaid superannuation, calculated for the period 31 March 2016 to 20 March 2017 at 9.5% x $1,200 =$114 x 50 weeks totalling $5,700, plus superannuation guarantee on termination payments, of $1,032 for “superannuation on notice period, accrued annual leave and annual leave loading”;
(c)accrued annual leave for a period of 6 weeks, for 18 months employment (calculated as $1,200 x 6 weeks) totalling $7,200;
(d)certain payments under the Award: accident pay (calculated as $60 x 13 + $240 x 25) totalling $6,780, and 17.5% annual leave loading (calculated as $7200 x 17.5%) totalling $1,260;
(e)payment on termination of employment: two weeks’ notice (per s.117(3) of the Act) ($1200 x 2) being $2,400;
(f)26 weeks’ compensation on unfair dismissal (per s.545(2)(b) of the Act) (at $1,200 x 26 weeks) totalling $31,200, submitted as loss suffered to compensate for the time taken to seek alternative employment, given his non-English speaking background, the current job market, his limited experience in Australia, and time for his injuries to settle;
(g)general protection damages in the amount of $15,000 for hurt and pain in relation to adverse action taken by DS Shopfitters and directors before proceedings and $2,000 for distress caused by adverse action after commencement of proceedings; and
(h)loss of workers compensation in period when DS Shopfitters disputed with insurer the amount of Mr Yang’s gross weekly wage (at $1,200 x 6 weeks), being an amount of $7,200;
(i)as well as various penalties under the Award – 85% of maximum penalty to DS Shopfitters, and 100% of maximum penalty to the individual respondents, as set out in Mr Yang’ submissions on compensation and at hearing filed 9 April 2018;
(j)claims for reimbursements of expenses, filing fees and other disbursements; and
(k)pre-judgment interest, to April 2018 of $3,473.
At the hearing, Mr Yang ultimately claimed:
(a)a total amount of “remedy” sought of $96,818 (including pre‑judgment interest to April 2018 of $3,473);
(b)pursuant to s.570(1) and (2)(b) of the Act, reimbursement totalling $1,000 for certain expenses / disbursements incurred in the proceedings as a consequence of the unreasonableness of the respondents in the conduct of the proceedings;
(c)penalties for contraventions of 6 provisions of the Act (ss.45, 340, 343, 351, 352, and s.536, in the case of DS Shopfitters, at 60% of the maximum penalty ($63,000) for each contravention, being $37,800 per contravention, and in the case of each of the individual respondents, at 85% of the maximum penalty ($12,600) for each contravention, being $10,710 per contravention. In sum, Mr Yang sought a total amount of penalties of $100,000 against DS Shopfitters, and $50,000 against each of the individual respondents, in sum, against all respondents, $300,000.
H. Issues in dispute
As is apparent from the above, many of the issues in dispute are interrelated. To the extent that I have not already identified the issues, in the course of the above recitation and consideration, I now do so, as follows:
Terms of employment issues
(i)Did DS Shopfitters fail to provide Mr Yang pay slips as required by the Act? If it failed to do so, it follows that DS Shopfitters’ has contravened the Act, and is liable to a penalty.
(ii)Was a salary or wage agreed between DS Shopfitters and Mr Yang, on his engagement with the company? If so, what was it?
(iii)After Mr Yang was injured, did he misstate his gross weekly wage to Ms Li for the purposes of obtaining workers compensation from DS Shopfitters’ insurer CGU Insurance? The respondents contend that Mr Yang did so, Mr Yang disputes, and submits that the respondents’ dispute with CGU caused him compensable loss.
(iv)Was Mr Yang underpaid his wages or other entitlements (including payment of superannuation to his nominated superannuation fund) at any time?
Award issues
(v)How did Mr Yang come to be on-site (both at Capalaba, at the time of injury in June 2016, and more generally in the course of his employment), and in what role(s)?
(vi)Was Mr Yang covered by the Award? If so, from when, and at what Level? And if so, does it follow that Mr Yang was not paid all his entitlements under the Award, at any time? If so, when and to what extent?
Respondents’ conduct and end of employment issues
(vii)Mr Sam Lu’s text message on about 12 July 2016 is discussed above at Part C [37]. Did Mr Sam Lu by his text message threaten Mr Yang in response to Mr Yang’s request for payment of his superannuation? If so, was that conduct, or conduct in not paying superannuation guarantee payments sought, adverse action by DS Shopfitters, and if so, was that action taken by the employer against its employee “because of” a prescribed reason under s.341 (and 351(1), on Mr Yang’s claim to have been under a disability) of the Act?
(viii)In about January 2017, was Mr Yang offered any role / another role at DS Shopfitters? If so, what? Did Mr Yang act to bring his employment to an end (refuse to perform duties / refuse to return to work)?
(ix)Was Mr Yang constructively dismissed by 20 March 2017? To put the matter in ordinary English, did DS Shopfitters not want Mr Yang back as its employee because he complained / sued the respondents; did the company “give up” on him?
(x)What was the involvement of the individual respondents, in DS Shopfitters’ conduct? Within the meaning of s.550 of the Act, are they involved in any of the company’s contraventions?
Following consideration of these issues, to the extent not addressed in the course of consideration of the issue, I then consider whether DS Shopfitters has contravened the Act as alleged, and whether the individual respondents are involved in any such contravention(s), and my conclusions.
Consideration of Issues
Pay slip issue – non provision of pay slips
The non‑provision of pay slips may be dealt with as a discrete issue.
Sub-section 536(1) of the Act provides that an employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. Pursuant to sub‑s.536(2) the pay slip must include certain information. These provisions are civil remedy provisions under the Act.
There is no documentary evidence that DS Shopfitters provided any pay slips to Mr Yang, and no deponent attested to their provision. At hearing, the respondents’ counsel argued that it was for Mr Yang to ask for a pay slip, and cross-examined Mr Yang to that effect without success. Counsel ultimately accepted that DS Shopfitters did not provide any pay slips. Notwithstanding this reluctant concession, the respondents continued to deny that DS Shopfitters was under an obligation to give pay slips to Mr Yang, its employee.
The employer bears the burden of disproving the allegations made, pursuant to s.557C. DS Shopfitters has not proffered any explanation for its non‑compliance, indeed, by continuing to assert that it was for Mr Yang to ask for pay slips, the respondents have acted in express disregard of the company’s statutory obligations.
On basis of the above, I find that DS Shopfitters did not provide Mr Yang with any pay slips, and acted contrary to the obligation in s.536(1) of the Act. It follows that DS Shopfitters did not comply with its statutory obligations required by sub-ss.536(1) and (2), in respect of Mr Yang throughout the period of Mr Yang’s employment.
Contravention of s.536(1) of the Act – failure to provide payslips
It follows from the above that I find that DS Shopfitters has contravened sub-ss.536(1) and 536(2) of the Act, and that it has contravened a civil remedy provision by reason of s.539(1) item 29, for which Mr Yang is entitled to orders and the benefit of the penalty provisions of s.539(2). I further find, pursuant to, and applying s.557(1) and (2)(o), that the contraventions are committed by the one person – the company, and arose out of a course of conduct by the company in respect of its obligations to provide Mr Yang his payslips, and that those multiple failures may be grouped and taken to be a single contravention by DS Shopfitters.
The evidence before me, however, does not enable me to determine whether or not DS Shopfitters’ non-compliance in the provision of pay slips was a knowing non‑compliance, and part of a systemic pattern of conduct relating to more than one of its employees, or was limited to its dealings with, and obligations in respect of, Mr Yang. Accordingly, I have not further considered the application of s.557A of the Act.
Factual consequences of DS Shopfitters’ failure to provide pay slips
DS Shopfitters’ failure to provide Mr Yang pay slips had the obvious consequence that over the period from commencement of his employment up to at least when he was injured, (and but for his own enquiries, even up to the present), Mr Yang was unable to verify:
(a)what gross amount the company was paying him (including PAYG payments to ATO),
(b)what PAYG (if any) was being withheld, and
(c)whether any superannuation guarantee payments were being made by DS Shopfitters to his superannuation fund, or at all.
Thus, in the ordinary course of his employment at the times he was paid Mr Yang was unable to raise any concerns as to the discrepancies between the gross base wage he had agreed with DS Shopfitters (in the person of Mr Christopher Lu), and the amount the company was in fact paying him, including by way of reporting to ATO, and his superannuation entitlements.
Further, it is not disputed that Mr Yang was not provided a PAYG summary for the 2015 – 2016 financial year, contrary to DS Shopfitters’ statutory obligations (although as will be apparent from the below, DS Shopfitters at some time subsequently caused to be prepared a PAYG summary purporting to relate to Mr Yang).
Wages issue - Mr Yang’s terms of employment
What salary or wages were agreed between DS Shopfitters and Mr Yang in September 2015 when he was employed as a clerk and bookkeeper with the title accountant?
Mr Yang claims that he entered into an oral employment contract with DS Shopfitters in September 2015, further to a conversation with Mr Christopher Lu, to be paid $1,200 per week, and overtime. Mr Yang says this would equate to an annual salary of approximately $62,400, but which payments he never received.
The respondents admit that the employment agreement made with Mr Yang was oral, but dispute the amount agreed.
Mr Yang’s evidence about the oral agreement
Mr Yang’s evidence given in his affidavit affirmed 24 August 2017 is that he met Mr Christopher Lu when Mr Yang responded to a newspaper advertisement for employment with DS Shopfitters. He was interviewed by Mr Christopher Lu, and they had a conversation in which there was an exchange to the following effect (as recounted by Mr Yang in his affidavit):
Mr Lu: Have you spoken to Sam?
Me: Yes.
Mr Lu: Are you interested in the job?
Me: Yes.
Mr Lu: Sam is the manager of the company and I am the director. Your wage will base on $1200 per week and if there is overtime, you will also be paid accordingly.
Me: Thank you. I will take that salary.
No respondent gave evidence on the making of the oral agreement
As I have said, Mr Christopher Lu did not give evidence in the proceeding.
The respondents were on notice what Mr Yang claimed from at least 11 January 2017 by the Form 2 of the Court documents in the 2016 proceeding (see above at [49]). By this date the company had been served, and the Court documents for the 2016 proceeding had been handed to Ms Dong at the Lu’s home, and thus it is reasonable to infer brought to her husband and son’s attention.
Mr Sam Lu, in his first affidavit, asserts that Mr Christopher Lu has not been involved in daily management and operation of DS Shopfitters, and that (as at 27 September 2017), he “has been overseas for around one year”. The respondents did not tender at the hearing any documentary material to substantiate that statement.
Thus, the respondents admit the agreement was oral, and there is no evidence from Mr Christopher Lu contradicting Mr Yang’s evidence of the circumstances of meeting with him and their conversation.
Mr Sam Lu did not state in either of his affidavits read in the proceeding that Mr Yang was interviewed and offered his salary by any other person in the company, and not by Mr Christopher Lu.
The respondents’ evidence
Mr Sam Lu in his first affidavit states that Mr Yang “agreed on an offer of $36,000 per year orally”. However, Mr Sam Lu was not a party to that agreement. As I have said, he did not dispute that on behalf of the company Mr Christopher Lu engaged Mr Yang.
In his second affidavit (of the same day, in September 2017), Mr Sam Lu repeats the assertion of an base annual salary of $36,000, and in the next sentence also states that Mr Yang was paid $37,450.52 up to when he was injured, (that is, for approximately 38 weeks, not the full 12 months). In the same affidavit he also says Mr Yang received a total of $42,873.60 from DS Shopfitters (including an amount of $5,423.08 he claims was unauthorised but which he says was transferred by Mr Yang to himself in August 2016). In the one page Respondents wage calculation exhibited to that affidavit, 4 sums are set out: $32,994.70, $32,027.44, $37,450.52, and $39,559.52.
In support of the respondents’ case Mr Sam Lu attached to his second affidavit the Respondents wage calculation, a bundle of DS Shopfitters’ bank transaction receipts, evidencing what DS Shopfitters paid Mr Yang into his bank account, that is, his net wages prior to injury, a Payroll advice document, and a PAYG summary.
Mr Sam Lu’s evidence is confused, and very unsatisfactory. Mr Sam Lu makes bare, and inconsistent assertions. It is apparent that he did not prepare DS Shopfitters’ payroll. There is no affidavit evidence from any person who could sensibly substantiate or explain the documents exhibited to Mr Sam Lu’s affidavits. If Ms Li could do so, she did not. If Ms Dong could do so, she did not. The bank transaction receipt documents record that Yanfang He, a former director, authorised the payments, but that person did not give evidence.
The Respondents wage calculation is described by Mr Sam Lu when exhibiting it as “document recording payment of wage, and other entitlements in relation to the Applicant”. It has no internal document title or description, and no attribution as to author, date or employee. There is no reference to either the company or Mr Yang on the document. Among other defects, the document:
(i)does not accurately record commencement of employment or injury dates;
(ii)does not accurately reconcile with each of the company’s bank transaction receipts, or Mr Yang’s bank records of dates and amounts of individual payments of net wages received;
(iii)lists 79.08 hours of overtime, but Mr Lu’s evidence was that “the Company never requested any employees to prepare any time sheet”;
(iv)states 4 different total amounts without clear explanation -“Annual Salary of $39,559.52”, “$32,994.70”, “$37,450.52”, and “gross wage” of $32,027.44;
(v)depicts without explanation calculations of subtotals, sub-and grand totals that do not reconcile, further calculations and notations “should pay”, amounts with the notations “accrual OT hours (penalty loading 25%)” and “annual leave provision hours 37.86”.
There is no evidence who prepared the calculations, or as to whom could reliably attest to these matters, and no contemporaneous source documents. I am left to speculate. In the absence of such material, counsel could not assist. There is no sufficient or reliable basis on which I am able to determine which, and if so what, of these amounts to accept, and what the amounts represent.
Given what is stated on the document’s face, and in the bank transaction receipts also exhibited, and that no PAYG summary was given to Mr Yang, and no superannuation amounts at all were paid until some time after Mr Yang complained about the matter after being injured, and that Mr Yang’s TFN was not provided to the ATO, and that I was not directed by the respondents’ counsel to any document that evidenced that DS Shopfitters recorded Mr Yang’s TFN, I conclude that the Respondents wage calculation was prepared for purposes of argument during the course of the proceeding, and not in the ordinary course of the company’s business activities, as a business record within the meaning of the Evidence Act.
The Payroll advice document also exhibited by Mr Sam Lu (as the one document comprising sequential listing of payroll advice records), on their very face show the records were created after the times to which they relate. Again, there is no explanation by any person who could attest to how and when they were brought into existence.
By way of immediate example of the concerns I have with the document, the Payroll advice document states that Mr Yang’s superannuation fund is AMP Smart Choice Super, other evidence discloses Ms Li’s fund is AMP Super, whilst Mr Yang’s affidavit evidence is that his fund is not with AMP, ATO correspondence (see above at Part C [39]) establishes that DS Shopfitters told ATO that Mr Yang’s superannuation fund was “ANZ Smart Choice”. Further, superannuation expenses and PAYG withholding tax are stated, although such amounts were not paid, and whilst purporting to be prepared as at the date periods to which they relate, each record states the same annual total amount ($32,027), notwithstanding that the amounts paid in the relevant period vary, and sometimes include overtime.
The bundle of bank transaction records of net wage payments to Mr Yang correspond substantially with Mr Yang’s bank records. These, however, do not assist in any determination of what was the agreement reached between Mr Yang and his employer as to his gross base salary or wage on commencement.
Given DS Shopfitters’ failure to provide pay slips, failure to provide a PAYG summary to Mr Yang, failure to provide Mr Yang’s TFN to the ATO, or remit PAYG tax to the ATO regularly (or provide any explanation why payments were not made), the bank transaction receipts do not substantiate anything more than the fact of the net payments made to Mr Yang, which payments were not disputed by Mr Yang.
Leaving aside the bank transaction receipts, which I accept, I am unable to accept that the documentary support exhibited to Mr Sam Lu’s affidavit was prepared in, and for, the ordinary course of business of DS Shopfitters. Specifically, I do not accept that Respondents wage calculation or the Payroll advices, or PAYG summary establish that Mr Yang’s agreed base (gross) salary on engagement was $36,000 per annum as the respondents contend, or any of the other amounts propounded by Mr Sam Lu.
Payments that were made
The respondents argued before me that Mr Yang accepted what he was actually paid, and did not take issue with the amounts he received until he was injured.
Mr Yang’s response is that he thought that the difference between what he received, and what he was being paid, was PAYG tax paid to the ATO. He had given DS Shopfitters his tax file number - TFN (this is not disputed by the respondents). He never received any pay slips, nor any PAYG summary (as the respondents ultimately conceded).
Accordingly, Mr Yang says he did not realise that he was being underpaid, or that superannuation guarantee amounts were not being paid into his superannuation fund, or that DS Shopfitters was not paying the ATO the balance of his wages as his PAYG tax, until after he was injured and pursued his enquiries. He was not shaken in this evidence under cross‑examination.
It is incontrovertible that Mr Yang had not had the benefit of any pay slips each time when he was paid, or at all. It is also conceded that he never received any PAYG summary. As he was injured before the end of the first financial year of his employment, and had not received any pay slips, I accept his explanation as to why he did not challenge the amounts he received into his bank account as net wages from DS Shopfitters.
I turn to consider other material relied upon by the parties in support of the respective positions as to Mr Yang’s agreed base wages on commencement of his employment.
Ms Li’s salary (comparable job)
In support of his contention that his agreed base gross salary was $1,200 per week Mr Yang relied on a DS Shopfitters’ payroll advice relating to Ms Li’s salary for the period 1 July 2016 to 28 July 2016 (the month after he was injured), encompassing 2 fortnightly salary payments in that period, and annexed to his affidavit affirmed 8 June 2017. The document discloses that Ms Li’s annual salary was $74,724, a gross fortnightly pay of $2,874.00 and a net pay of $2,206.00. She was classified as “Full Time”. PAYG withholding, and superannuation guarantee and expenses are stated. The payroll advice identifies Ms Li’s superannuation fund as “AMP Super”. I observe that on this evidence Ms Li was paid approximately $12,000 per annum more than the amount Mr Yang claimed was his agreed base salary on commencement of his employment the previous year.
Mr Yang submits that Ms Li’s payroll advice evidences his loss of opportunities, as the amount he would have been able to earn had he remained employed by DS Shopfitters. As I have set out above, the evidence is that Ms Li was first employed as his assistant (although he disputes that he supervised her), because he was increasingly working on projects and on‑site. Her evidence is that she had no prior experience in Australia. She was promoted to the office clerk/ bookkeeper/ accountant position immediately after he was injured. Mr Yang states that she was performing the same amount of duties and the same amount of work, but at a higher pay.
Ms Li’s affidavit is short, and short on detail. On this issue her evidence was that she was in the employment of DS Shopfitters as an office clerk with bookkeeping duties. She said that Mr Yang interviewed her for her job, and she did work according to his directions until he got injured in June 2016.
In his first affidavit Mr Sam Lu responded to Mr Yang’s submission regarding Ms Li and her salary. He stated that “William [Mr Yang] was Abby’s [Ms Li] supervisor in the Company. In fact, it is William who interviewed and recruited Abby”. However, he also stated that Ms Li “was not only managing clerical and bookkeeping duties for the Company, but also for another company of mine at that time. Therefore, Abby was effectively doing two person’s job”. He believed it was appropriate she be paid “a higher wage”. He also observed that it was entirely up to the management to decide the amount to be paid to certain employees.
Whilst accepting that it is for “the management” to determine what to pay an employee (subject to the employer’s compliance with its legal and regulatory obligations and any agreement reached with an employee), I do not accept Mr Lu’s explanation.
I consider that it is reasonable to expect that persons doing similar tasks, and with not dissimilar experience, would be paid similar amounts. In contradistinction to Mr Yang’s tertiary qualifications about which he gave oral evidence, there is no evidence before the Court that Ms Li has any relevant qualifications, or any finance related qualifications or experience.
Excepting the bald assertion of Mr Lu, unsubstantiated by any documentary evidence that he has another company, and unsubstantiated by Ms Li, I do not accept that Ms Li was paid over twice as much as the respondents assert the company had agreed to pay Mr Yang because she was doing 2 persons jobs. However, I am unable to accept that whatever Ms Li was paid evidences what sum Mr Christopher Lu offered to Mr Yang and he accepted some 10 months earlier, or that her wages evidence his lost opportunities. It does not so evidence, and it does not so follow.
Wages issue - allegation that Mr Yang misled insurer as to his wages
It is not in contention that DS Shopfitters ceased making any wages payments to Mr Yang when he got injured (net or gross). Sometime thereafter he was paid pursuant to workers compensation. In June 2017, when Mr Yang commenced the 2017 proceeding, he served his affidavit affirmed 8 June 2017. To that affidavit was annexed a partial copy of DS Shopfitters’ wages statement made by Ms Li to CGU Insurance on 17 June 2016 as part of DS Shopfitters’ workers compensation claim. Mr Yang’s pre-injury gross weekly wages were there stated to be $1,200.
In about July 2017, after being served with that material (which I note originated from DS Shopfitters), and after Mr Sam Lu had conferred with the respondents’ solicitor, DS Shopfitters’ disputed the amount of Mr Yang’s wages with CGU Insurance, and for a time the insurer stopped Mr Yang’s workers compensation payments.
The respondents say that Mr Yang misrepresented his pre-injury wages to the insurer. They contend that in the first days after Mr Yang was injured, Ms Li was told by Mr Yang to falsely tell CGU Insurance that Mr Yang’s weekly gross wage was $1,200 when lodging the company’s claim for workers compensation to be paid.
Ms Li’s conversation with Mr Yang is alleged to have taken place just days after he sustained critical crush injury, and when he was admitted into the hospital’s Intensive Care Unit. Mr Yang disputes that he told Ms Li what to say in the wages form to CGU Insurance. He says that there was no such conversation, although he spoke to Ms Li to inform her he was injured, and when in hospital. He denies misleading her or directing her to mislead CGU Insurance.
As at the time of hearing, Mr Yang’s dispute with the insurer had been resolved in his favour, but Mr Yang says he lost a total of $7,200, being 6 weeks workers compensation payments.
Respondents’ contentions regarding the CGU Insurance claim
Ms Li’s affidavit evidence was primarily directed to seeking to establish that Mr Yang told her what to do, that Mr Yang misled her about the amount of his wages, and otherwise seeking to exonerate Mr Sam Lu, her boss.
In her affidavit Ms Li sets out her initial dealings with Mr Yang, and two conversations that she says she had with Mr Yang. The first is a conversation when he interviewed her for her job, and the second, a telephone call she says she had with Mr Yang initiated at the request of Mr Sam Lu, shortly after Mr Yang was injured in around “17 June 2017” (Mr Gangemi submits that this date should read 2016, which I accept). The second conversation is relevant to the respondents’ contention Mr Yang mislead CGU Insurance.
Ms Li attests to a telephone conversation she says she had with Mr Yang on about 17 June 2016, within a few days of when Mr Yang was injured, in which he told her what to say to CGU Insurance about his wages – to state $1,200 per week, although she told him that he earnt about $32,000 - and that he said Mr Sam Lu had approved the deception. She says over 12 months later she was told by Mr Sam Lu after he had met with his solicitor that he had never approved the amount.
Ms Li does not attest to informing CGU Insurance of the “error”. She is silent on the matter. That conduct is attested to by Mr Sam Lu, who says he instructed Ms Li to write an email to CGU Insurance reporting the claimed “error”. Annexed to Mr Lu’s first affidavit is email correspondence dated 26 July 2017 from DS Shopfitters to CGU Insurance. There is no indication who the author of the email is, save that it is the company. The email contains the following statements (emphasis in the original, identifying numbers redacted):
I am employed by DS Shopfitters Pty Ltd (“Company”). The Company used to have a worker’s compensation insurance with CGU. The Policy number is [XXX].
I am writing this email to report an issue in a previous claim we have lodged for Xingyu Yang (DOB XXX) (“Yang”) on or around 14 June 2016.
This issue is regarding the Calculating preinjury average weekly earnings form (“Form”). Ordinary gross earnings per week should be $981.81, NOT $1200.00.
Reasons for the error
The Form was filled in and submitted by Abby Xiao, pursuant to Yang's directions.
Abby firstly came to Australia in mid‑2015 and commenced employment with the company in December 2015. Prior to that, Abby lived and worked in China, and lacked in understanding of the Australia laws. Yang was Abby’s direct superior in the Company, Abby was interviewed and recruited by Yang.
Yang was Abby’s direct superior in the Company. Abby was interviewed and recruited by Yang.
After Yang got injured, Abby completed the reporting and claim process under step by step directions from Yang, including the incorrect wage information on the Form. Yang told Abby that he had spoken to the manager regarding the incorrect wage information, and requested Abby to do what he told Abby to do.
Actually, the manager was never consulted by Yang, and Yang lied to Abby.
How the error came to be discovered
Yang commenced two proceedings against the Company in the federal circuit court.
From the documents recently served by Yang, our solicitor discovered the Form, and when the manager attended the solicitor's office on 24 June 2017, the manager was made aware of the Form for the first time
The company apologize for the error and any inconvenience and is willing to cooperate with CGU to resolve the issue.
Consideration of respondents’ contentions
It is apparent from the use of definitions and the form of expression that the email was written with professional assistance. It was sent shortly after Mr Sam Lu had visited his solicitor, and the copy in evidence shows that the sent email was then promptly forwarded to the respondents’ solicitor.
Ms Li does not satisfactorily explain why in June 2016 she sought Mr Yang’s input as to the wages information to be provided to CGU Insurance, notwithstanding her evidence that she already knew at that time what Mr Yang’s wages were.
Given Ms Li’s role as bookkeeper working in the office for DS Shopfitters, and her stated knowledge as to Mr Yang’s wages at the time of the alleged conversation, sufficient to complete that aspect of the documentation to make the workers compensation claim on CGU Insurance, and that Mr Yang was critically injured and in hospital in Queensland at the time he was asserted to have had the foresight to engineer the purported misrepresentation to the insurer, and in the face of Mr Yang’s denials, I am not persuaded by Ms Li’s testimony or that of Mr Sam Lu. I am not persuaded that the statements made in the email to CGU Insurance, or the conversations between Mr Sam Lu and Ms Li are accurate.
For these reasons I do not accept the respondents’ contention that Mr Yang misrepresented his pre-injury wages to Ms Li, or directed Ms Li to misrepresent his wages to CGU Insurance. Given the timing and circumstances in which the respondents sought to stop or reduce CGU’s payment of workers’ compensation to Mr Yang, I do not give any weight to her and Mr Sam Lu’s attempt to re‑construct that conversation and their actions to present Mr Yang as so misleading.
It follows I find that as a result of the respondents’ behaviour, and specifically, the actions of Mr Lu and Ms Li concerning CGU Insurance’s continuation of workers compensation payments to Mr Yang, Mr Yang has suffered compensable loss.
However, I caution that what was agreed between DS Shopfitters and Mr Yang in September 2015 as to his base gross wage on commencement of employment will not be established by the later wages disclosure to CGU Insurance in June 2016 or Mr Sam Lu’s and Ms Li’s attempts to discredit that wages statement in July 2017.
Mr Yang’s quantification of his loss of income in the form of workers compensation payments is $7,200. Given the conclusions on Mr Yang’s base salary I set out below, and that there is nothing before me to contradict that quantification, I accept that amount as Mr Yang’s compensable loss. For the reasons that I expand upon below at Part I and Part J, I further conclude that DS Shopfitters’ conduct is adverse action in contravention of s.340(1) of the Act.
Wages issue - Conclusion as to base salary agreed
I take into account that Mr Christopher Lu did not give evidence, and that Mr Sam Lu did not contradict Mr Yang’s evidence that Mr Christopher Lu on behalf of DS Shopfitters’ engaged Mr Yang. Each of the Respondents wage calculation, the Payroll advices, and the PAYG summary, I find is self‑serving, was prepared after the commencement of the dispute with Mr Yang, and it is reasonable to infer, and I so infer, for the purposes of the dispute. I do not accord them any weight.
For the above reasons, and having observed Mr Yang under cross-examination in the witness box, I accept Mr Yang’s evidence of his agreement with DS Shopfitters. I find that DS Shopfitters entered into a contract of employment with Mr Yang in September 2015 employing him on a gross base wage of $1,200 per week, being $62,400 per annum, together with overtime, to be paid where undertaken.
It follows that Mr Yang was underpaid his wages from commencement of his employment, and I so find. The amount of underpayment to the date he was injured is $13,573. Thereafter, he was compensated by workers’ compensation payments, save as I have found above (namely a further compensable loss of $7,200).
It further follows that DS Shopfitters has not paid the full superannuation contributions required to be made under the Superannuation Guarantee Administration Act 1992 (Cth), based on Mr Yang’s gross base wage of $1,200 per week, being his “ordinary time earnings” under that Act. It appears that ultimately DS Shopfitters paid superannuation contributions on a base gross wage of $600 per week up until Mr Yang was injured, and no more. Mr Yang submits that this corresponds to payment up to 31 March 2016, at 9.5% of $1,200 per week, and that thereafter there is a shortfall in DS Shopfitters’ payment of superannuation contributions.
Mr Yang submits that superannuation contributions are payable until 20 March 2017, when he accepted DS Shopfitters’ constructive dismissal, that is for 50 weeks. Mr Gangemi submits that workers compensation payments, and top up payments such as accident pay are not included in “ordinary time earnings”, see Superannuation Guarantee Ruling SGR 2009/2: Superannuation guarantee: meaning of the terms ‘ordinary time earnings’ and ‘salary or wages’. He accepts that if Mr Yang was covered by the Award, clause 27.5(b) requires superannuation contributions be made when an employee is absent from work due to work‑related injury, but the respondents’ say Mr Yang was not covered by the Award.
I accept Mr Gangemi’s submission on SGR 2009/2. Leaving aside the question of coverage by the Award, which I address below, on the basis that Mr Yang’s base gross wage was $1,200 per week, I find that DS Shopfitters underpaid superannuation contributions for Mr Yang for the period 31 March 2016 to 13 June 2016, a period of 10 ½ weeks, at $114 per week, a total of $1,197.
Award Issue - Mr Yang's transition to working on‑site and his role on‑site
Mr Yang’s evidence is that he was directed to work on-site at the shopfitting job at Capalaba by Mr Sam Lu. Mr Sam Lu does not dispute that direction, although he disputes directing him to do the particular work Mr Yang then undertook and had undertaken on site in the preceding period.
Mr Sam Lu says that Mr Yang commenced employment with “the second respondent as a clerk and bookkeeper”. Mr Yang’s services were required “as I am constantly away from the office I need someone in the office to deal with clerical and bookkeeping tasks”.
Mr Sam Lu says that Mr Yang is lying about his duties. He says Mr Yang requested he be sent to the worksite and Mr Sam Lu agreed “because his English is so good that he could interpret for workers on site”. Mr Sam Lu said that Mr Yang did not possess any training and knowledge, so it was impossible for him to conduct any shopfitting tasks. He claims he had a conversation with Mr Yang in about October 2015 in response to Mr Yang’s request to go on-site to learn, to remember he was “only on-site to coordinate and to interpret. We have professional workers who do the job. You do not have any experience or qualifications in shopfitting. So you do not know do any shopfitting work.”
A particular matter in contention was Mr Yang’s possession of a forklift licence. Mr Sam Lu asserts that in his conversation with Mr Yang in October 2015, Mr Yang told him that he had a forklift licence and wanted to be working on‑site because he had such licence. Mr Yang disputes this, and says he learnt the skill and obtained the forklift licence at the request of Mr Sam Lu, and that he only obtained the licence in February 2016.
The documentary evidence establishes that Mr Yang obtained a forklift license in February 2016. Given the documentary substantiation, I conclude that the acquisition of the forklift licence by Mr Yang was at Mr Lu's request. I reject Mr Sam Lu’s version of his conversation with Mr Yang.
I do not accept Mr Sam Lu’s assertion that he never requested Mr Yang to perform shopfitting tasks or that Mr Lu told Mr Yang “several times not to do any actual shopfitting work”, for at least the following reasons.
Mr Yang’s work schedule was prepared by Mr Yang after he was injured as a summary timesheet by reference to his contemporaneous telephone records, purchasing invoices and travel documents, copes of which were attached to the Court documents (see above at Part D, [51]). Mr Yang also tendered evidence of his satisfactory completion of contractor induction certification. I accept that Mr Yang's work schedule is a substantially accurate record of the work he undertook and the jobs he performed whilst employed by DS Shopfitters, including at the company’s worksites.
Mr Sam Lu’s statement that he never requested Mr Yang to do a timesheet, and that no employee was required to keep timesheets, does not reconcile with DS Shopfitters’ variable wages payments disclosed in the bank transaction receipts, evidencing an acceptance of some recording of overtime hours.
Mr Yang’s oral evidence, substantiated by the work schedule, was that part of his job was to undertake procurement for the company. This part of his work was to quote order, pick up and then work out the materials, figure what to buy, and then deliver them to the factory, and on occasions to the locations at which the shopfitting work was taking place. Some of the stores that were being fitted out were in other States.
As early as the week of 28 September 2015, Mr Yang was on‑site undertaking induction for the shopfitting at a clinic in North Sydney, and performing the office work in relation to a de-fit in Carlingford, New South Wales. From the week of 5 October 2015, Mr Yang was on‑site at shopfitting sites. Thereafter, he purchased a forklift for the company and undertook a project administration duties and equipment procurement including sprinkler installations materials, and participated in shop‑fitting projects in Sydney, Adelaide, Canberra, Brisbane, and Melbourne. The work undertaken included measuring, coordinating and preparing material for fit‑outs, picking up materials, and assisting in fit‑outs including tiling, installing shelves, gutters, windows, curtains, painting walls, measuring dimensions, cleaning floors, gardening, and de-fitting work.
Mr Yang’s subsidiary claims of contravention of s.343 and s.351 were not substantiated on the evidence, and I find that they are not established. Mr Yang did not identify any instance of coercion, whilst his claim of discrimination because of disability is misconceived. The claim under s.352 fails on the facts.
Before determining the amounts that DS Shopfitters is liable to pay as a consequence of those claims that are made out, the remaining issue to be determined is the involvement of the individual respondents within the meaning of s.550 of the Act.
K. The individual respondents’ involvement in DS Shopfitters conduct
The final matter for determination is the dispute whether each of the individual respondents were involved, for the purposes of s.550 of the Act, in any of the contraventions by DS Shopfitters. It is relevant to note, first, that this question does not arise in respect of the breach of contract claim as to Mr Yang’s base salary.
Section 550(1) of the Act provides that a person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. The relevant civil remedy provisions DS Shopfitters has contravened are s.340 and sub‑ss.536(1) and (2) of the Act.
Section 550(2) of the Act defines when a person is involved in a contravention, relevantly:
(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.
Also relevant is s.793 of the Act which relevantly provides that any conduct engaged in or on behalf of a company (a body corporate) by an officer, employee or agent of the company within the scope of their actual or apparent authority is taken for the purposes of the Act, to have been engaged in also by the company. As to the operation and interaction between ss.550 and 793 of the Act, s.793 operates to deem the conduct of Ms Dong and Mr Sam Lu, at least, to be that of DS Shopfitters, and there is no barrier to them also being held to have been involved as an accessory to that same conduct: See NSW Motel Management at [361], and reference there to Australian Building and Construction Commissioner v Construction Forestry Mining and Energy Union [2018] FCA 42 at [53] – [56].
The relevant principles for present purposes are summarised in NSW Motel Management at [344] – [349]. In short, a person is sufficiently involved in a contravention if they intentionally participated in the contravention. This requires actual knowledge of the essential factual matters that make up the contravention, it is not necessary that they knew of the relevant legal provisions.
The second respondent, Ms Dong
As I have stated above, Ms Dong did not give any evidence in the proceeding. Mr Sam Lu attested that his wife was not involved in the daily management and operation of DS Shopfitters. Ms Li stated that she knew Ms Dong used to be a director of the company but “she did not participate into operation of the company”.
In respect of DS Shopfitters’ dealings with Mr Yang, and the subject matter of this proceeding, however, these claims are contradicted by the documentary material in evidence.
As to Ms Dong’s conduct in relation to Mr Yang’s dismissal, and exercise of a workplace right in bringing the proceedings, see above (Part I, issue (viii), [217] and following).
Additionally, by letter dated 26 April 2017, Ms Dong wrote to the external accountants Shum Liang, a “letter of confirmation of wage information” in which she stated the following (without alteration):
To whom it may concern:
We are writing this letter to confirm the gross wage figure of MR. Xingyu Yang in DS Shopfitters Pty Ltd for Financial year of 2016 is $32,027 and tax withheld is $4,520 according to the weekly tax table. Mr. Yang has provided his TFN to us, and his TFN is 36x xxx x58 (Confidential purpose). Please note, without this TFN, ATO is unable to identify the PAYG payment summary of Mr. Yang. Therefore, the figure of payment information of Mr. Yang that we provided to you is correct.
If you have any question, please kindly contact me by following method:
Ms Dong’s letter dated 26 April 2017 to Shum Liang is written just over a week before the FWC conciliation conference on 4 May 2017 regarding Mr Yang’s complaint to the FWC of underpayments by DS Shopfitters. Ms Dong ceased to be a director of DS Shopfitters on 10 May 2017, within a week of the FWC conference. Correspondence between Shum Liang and DS Shopfitters (Ms Li), requesting that the accountants organise the establishment of a new company, the change in office holders, and the closing of DS Shopfitters, was undertaken in this period.
The above referred to correspondence establishes that Ms Dong was directly and intimately involved in, or had some responsibility for, and had direct knowledge of, DS Shopfitters’ day-to-day conduct at least insofar as it concerned each of the matters referred to in the correspondence, and thus DS Shopfitters’ failures in legal and regulatory compliance (payroll, PAYG, ATO filings, and payment of superannuation) prior to Mr Yang’s work accident, and also in its dealings with Mr Yang after he was injured, and in particular the conduct that inexorably resulted in the end of Mr Yang’s employment and his consequent acceptance that DS Shopfitters had brought his employment to an end.
The timing and nature of Ms Dong’s intercessions on DS Shopfitters’ behalf described above give rise to an available inference that she was concerned to ensure that the company’s past behaviour was presented in the best light, and that she sought to do so after-the-fact, and I so infer. This conduct calls into question the veracity of the recitation of the company’s dealings referred to in the correspondence. In the absence of independent and contemporary corroboration, it follows that I am not able to accept the statements she makes in the correspondence as to DS Shopfitters’ conduct are accurate or truthful. I have not been directed by counsel to any such evidence. For these reasons, I do not give weight to her representations to Shum Liang or to Kairros.
On the basis of the above evidence I conclude that Ms Dong by her acts and conduct in the period prior up to May 2017 was directly or indirectly knowingly concerned in or party to the contraventions of DS Shopfitters of s.340 of the Act. By reason of s.793, I find that she is also accessorily liable for the company’s contraventions of s.536 of the Act.
It follows, and I find, she is a person involved in a contravention of a civil remedy provision by DS Shopfitters within the meaning of s.550(2) of the Act.
The third respondent, Mr Christopher Lu
I have referred to Mr Christopher Lu’s non participation in the proceeding.
Ms Li affirmed that she knew Mr Christopher Lu was Mr Sam Lu’s son, but that “I have never seen Christopher in the office of the Company located in Bankstown”. However, the ASIC records reveal that the Company’s principal place of business and registered office were only re‑located to Bankstown in February 2017, after the individual respondents ceased communicating with Mr Yang. Up until January 2017, the principal place of business and the registered office were located in Rydalmere, before being briefly in Riverwood.
There is no documentary evidence substantiating Mr Sam Lu’s bare assertion in his affidavits made in September 2017 that Mr Christopher Lu was overseas.
However, there is no evidence that Mr Christopher Lu had any involvement in DS Shopfitters’ contravening conduct. Mr Yang has not lead any evidence of conduct in which Mr Christopher Lu is alleged to participate. An absence of evidence does not fill that void. I do not consider that s.793 assists in Mr Christopher Lu’s case. For these reasons, I conclude that Mr Christopher Lu is not a person involved in the contravention by DS Shopfitters of a civil remedy provision within the meaning of s.550(2) of the Act.
The fourth respondent, Ms Abby Xiao (Ms Li)
Ms Li’s involvement in DS Shopfitters’ conduct includes advising CGU Insurance following Mr Yang's injury in about 17 June 2016 of Mr Yang’s accident and pre-injury gross wages, informing CGU Insurance in July 2017 to change that wages amount, and her role as the bookkeeper / office accountant for DS Shopfitters since December 2015 first as Mr Yang’s assistant, and then succeeding him. That period included some of the period Mr Yang was underpaid before injury, and, and continuing thereafter. The correspondence in evidence between DS Shopfitters and Shum Liang regarding the remedial creation of payroll and employment records and calculation of amounts, and Ms Li’s role in supporting Mr Sam Lu’s contentions demonstrates that she was a key person involved in the company’s conduct, including in its covering up of its non-compliance with its payroll, PAYG, superannuation and taxation obligations.
On the basis of the above evidence I conclude that Ms Li by her acts and conduct was directly or indirectly knowingly concerned in or party to DS Shopfitters contraventions of s.340(1) by its conduct in emailing CGU Insurance in July 2017, and in its conduct of its obligation to provide payslips under s.536.
It follows, and I find, she is a person involved in a contravention of a civil remedy provision by DS Shopfitters within the meaning of s.550(2) of the Act.
The fifth respondent, Mr Sam Lu
I have described Mr Sam Lu’s involvement in DS Shopfitters’ throughout these reasons, and the tailoring of his evidence to suit the narrative sought to be presented by DS Shopfitters. The company acts through its personnel, and the evidence establishes that Mr Sam Lu was the guiding mind of the company and its controlling mind in DS Shopfitters’ contraventions of the Act in failing to provide pay slips, in its July 2017 interactions with CGU Insurance and thus injuring and prejudicing Mr Yang, and in constructively dismissing Mr Yang.
On the basis of the above evidence, I conclude that Mr Sam Lu by his conduct was directly or indirectly knowingly concerned in or party to the behaviour of DS Shopfitters found to contravene s.340 and s.536. It follows, and I find, Mr Lu is a person involved in a contravention of a civil remedy provision by DS Shopfitters within the meaning of s.550(2) of the Act.
Conclusions and Amounts made out
By reference to the claims and amounts claimed that I have set out at [84] and my conclusions at Part J above, it follows that Mr Yang has established that DS Shopfitters is liable to pay, and I will order DS Shopfitters to pay:
(a)the sum of $13,573 for underpaid wages;
(c)the sum of $7,200 for accrued annual leave for a period of 6 weeks, for 18 months employment;
(e)the sum of $2,400 pursuant to s.117(3) of the Act being payment in lieu of two weeks’ notice on termination of employment; and
(h)the further sum of $7,200 to compensate for 6 weeks’ loss of workers compensation when DS Shopfitters disputed with insurer the amount of Mr Yang’s gross weekly wage,
being a total of $30,373.
Further, it follows from my conclusions that DS Shopfitters’ has not complied with its obligation to pay into Mr Yang’s superannuation fund unpaid superannuation, calculated for the period 31 March 2016 to 13 June 2016, a period of 10 ½ weeks, at $114 per week, a total of $1,197, that DS Shopfitters must remedy that failure. I will make a declaration to that effect.
Mr Yang has also sought payment of compensation on unfair dismissal pursuant to s.545(2)(b) of the Act. On the totality of the evidence, I am satisfied that it is appropriate to order such compensation. I consider that an amount of $12,000 is reasonable compensation in the circumstances of this case.
Mr Yang has also sought general protection damages in the amount of $15,000 for hurt and pain in relation to adverse action taken by DS Shopfitters and directors before proceedings and $2,000 for distress caused by adverse action after commencement of proceedings.
Mr Yang has not articulated the basis on which the Court should award both compensation pursuant to s.545(2)(b) and general protection damages as he claims. The respondents have not made any submissions on these amounts save for their denials. I will give the respondents 14 days in which to provide a short written submission (no more than 3 pages) on Mr Yang’s application for both compensation and general protection damages. I propose to determine this matter on the papers unless within 21 days either party applies for an oral hearing on this matter.
Pursuant to s.570(1) and s.570(2)(b) of the Act, Mr Yang has further sought the sum of $1000 for reimbursements of expenses, filing fees and other disbursements, for certain expenses/disbursements incurred in the proceedings as a consequence of the unreasonableness of the respondents in the conduct of the proceedings. I consider that there is substantial merit in Mr Yang’s contentions. I will give the respondents 14 days in which to make a short written submission (no more than 3 pages) on this matter should they wish to do so. I propose to determine this matter on the papers unless within 21 days either party applies for an oral hearing on this matter.
There will be a subsequent hearing on penalty following upon DS Shopfitters contraventions of s.340(1) (2 contraventions) and s.536 of the Act.
Finally Mr Yang has sought pre-judgment interest pursuant to s.547 of the Act. I will give the parties 14 days in which to calculate this sum and make supporting written submissions (in each case of no more than 3 pages). I propose to determine this matter on the papers unless within 21 days either party applies for an oral hearing on this matter.
Further conduct of the proceeding
I will make declarations and orders reflecting paragraphs [278], [279], and [280] today, and directions reflecting paragraphs [282], [283], and [285]
I will direct the parties to confer and if possible, bring in a minute of proposed orders to be made to give effect to these reasons for decision to the extent not provided for by the declarations and orders I refer to above.
The remainder of the proceeding will be adjourned to a date to be fixed to program the further conduct of the proceeding in relation to the penalty if any that should be imposed on the respondents for the breaches of the Act referred to in these reasons for decision.
Finally there remains the consequence of the default judgment in the 2016 proceeding and what I understand to be some enforcement of that judgment. In the transcript of the hearing on 4 April 2017, Mr Sun told the Court (Judge Altobelli) that “the default judgment, to my understanding, has been stayed. The reason it was not set aside was because enforcement has happened – part of the judgment has been garnished by Mr Yang from our client’s account, and his owner is concerned that, if the default judgment was set aside, then Mr Yang would be required to pay those moneys back to our client”.
I have not been provided with any material which reflects these statements to the Court. To the extent, and to the extent only, that there has been some enforcement of the default judgment and sums paid to Mr Yang pursuant to garnishee, those sums should be brought to account as part of the short minutes of order I will direct the parties to bring in.
I certify that the preceding two hundred and ninety (290) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 22 May 2020
Schedule B—Classification Structure and Definitions
[Varied by PR988412,PR992150,PR994529,PR503860]
B.1 For the purposes of this award, the classification definitions are as follows:
B.1.1 Level 1 [relativity to Level 5—78%]
(a) An employee at this level will undertake up to 38 hours induction training which may include information on the company, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance.
(b) An employee at this level performs routine duties essentially of a manual nature and to the level of their training:
(i) performs work as directed;
(ii) performs routine duties essentially of a manual and repetitive nature;
(iii) is responsible for the quality of their own work subject to direct supervision;
(iv) works in a safe manner so as not to injure themselves or other employees;
(v) is able to solve basic problems associated with their work;
(vi) while undertaking structured training performs work within the scope of that training subject to safety and training requirements.
(c) Indicative of the tasks which an employee at this level may perform are the following:
(i) general labouring and cleaning duties from written or verbal instructions;
(ii) assistance to other employees at this or other skill levels within their level of skill and training;
(iii) other tasks as directed in accordance with their level of skill and training.
(d) Level 1 includes the following occupations:
(i) General hand.
(ii) Factory hand.
B.1.2 Level 2 [relativity to Level 5—82%]
(a) An employee to be classified at this level will have completed the required training or will have equivalent skills gained through work experience in accordance with the prescribed standards for this level. In all cases the employee will be required to satisfactorily complete a competency assessment to enable the employee to perform work within the scope of this level.
(b) An employee at this level performs work above and beyond the skills of an employee at Level 1 and to the level of their skill and training:
(i) performs work as directed;
(ii) exercises limited discretion and utilises basic fault finding skills in the course of their work;
(iii) works in a safe manner so as not to injure themselves or other employees;
(iv) understands and undertakes basic quality control/assurance procedures subject to supervision;
(v) while undertaking structured training, performs work within the scope of that training subject to safety and training requirements.
(c) Indicative of the tasks which an employee at this level may perform are the following:
(i) repetitive fixing of pre-made components or parts of any article in predetermined ways, using basic written, spoken and/or diagrammatic instructions;
[Sched B.1.2(c)(ii) substituted by PR503860 ppc 12Nov10;corrected by PR503969 ppc 12Nov10]
(ii) repetition work (including the feeding and removing of glass) on automatic,semi automatic or single purpose machines or equipment;
(iii) use of selected hand tools and hand operated power tools;
(iv) maintenance of simple records;
(v) manual handling skills;
(vi) use of hand trolleys and pallet trucks;
(vii) problem solving skills;
[Sched B.1.2(c)(viii) inserted by PR503860 ppc 12Nov10]
(viii) handling of glass to and from cases, trucks, benches, pallets, stillages, bins, cages or racks.
(d) Subject to Schedule B.1.2(e),Level 2 includes the following occupations:
(i) Assembler B.
(e) An employee currently classified as an Assembler B who is only required to perform the duties specified in Schedule B.1.2 must be paid in accordance with Level 2. Where such employee performs a wide range of duties including those more complex tasks identified for Level 3,then such employee must be paid in accordance with Level 3.
B.1.3 Level 3 [relativity to Level 5—87.4%]
(a) An employee to be classified at this level will have completed the required training or will have equivalent skills gained through work experience in accordance with the prescribed standards for this level. In all cases the employee will be required to satisfactorily complete a competency assessment to enable the employee to perform work within the scope of this level.
(b) An employee at this level performs work above and beyond the skills of an employee at Level 2 and to the level of their skill and training:
(i) performs work as directed;
(ii) exercises limited discretion and utilises basic fault finding skills in the course of their work;
(iii) works in a safe manner so as not to injure themselves or other employees;
(iv) understands and undertakes basic quality control/assurance procedures subject to supervision;
(v) performs routine duties which may involve the use of machinery or tools;
(vi) while undertaking structured training performs work within the scope of that training subject to safety and training requirements.
(c) Indicative of the tasks which an employee at this level may perform are the following:
(i) production of standard components and operation of machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at Level 2;
(ii) an ability to interpret and follow standard procedures;
(iii) operation of flexibility between assembly stations;
(iv) receipt,dispatch,distribution,sorting,checking,packing,documentation and recording of goods, materials and components;
(v) basic inventory control in the context of a production process;
(vi) basic keyboard skills;
(vii) operation of mobile equipment including forklifts, hand trolleys, pallet trucks ,overhead crane and winch operation;
(viii) accurate measurement;
(ix) assistance to one or more tradespersons [i.e. Level 5 and above];
(x) problem solving skills.
(d) Subject to Schedule B.1.3(e) and B.1.3(f),Level 3 includes the following occupations:
(i) Assembler A.
(ii) Assembler B.
(iii) Primer.
(iv) Machinist grade 2.
(v) Dispatch worker/glass vehicle driver (other than crane mounted vehicle).
(e) An employee currently classified as an Assembler A who is only required to perform the duties specified in Schedule B.1.3 must be paid in accordance with Level 3. Where such employee performs a wider range of duties including those more complex tasks identified for Level 4,then such employee must be paid in accordance with Level 4.
(f) An employee currently classified as an Assembler B who is only required to perform the duties specified in Schedule B.1.2 must be paid in accordance with Level 2. Where such employee performs a wider range of duties including those more complex tasks identified for Level 3,then such employee must be paid in accordance with Level 3.
B.1.4 Level 4 [relativity to Level 5—92.4%]
(a) An employee to be classified at this level will have completed the required training or will have equivalent skills gained through work experience in accordance with the prescribed standards for this level. In all cases the employee will be required to satisfactorily complete a competency assessment to enable the employee to perform work within the scope of this level.
(b) An employee at this level performs work above and beyond the skills of an employee at Level 3 and to the level of their skill and training:
(i) performs work as directed;
(ii) exercises discretion and utilises basic fault finding skills in the course of their work;
(iii) works in a safe manner so as not to injure themselves or other employees;
(iv) is responsible for the quality of their own work subject to limited supervision;
(v) works from more complex standards and procedures;
(vi) while undertaking structured training, performs work within the scope of that training subject to safety and training requirements.
(c) Indicative of the tasks which an employee at this level may perform are the following:
(i) carrying out of tasks from basic plans, sketches and drawings in conjunction with appropriate written or verbal instructions;
(ii) operation of materials handling equipment requiring a licence or certificate;
(iii) setting up and operation and adjustment of machinery to produce more detailed components to exact specifications and standards;
(iv) fixing components or parts in pre-determined ways and simple rectification work to jobs in progress;
(v) assistance to other employees at this and other skill levels within their level of skill and training;
(vi) other tasks as directed in accordance with their level of skill and training;
(vii) completion of simple clerical tasks;
(viii) selection of suitable methods for completing tasks and planning the order in which to complete them;
(ix) keyboard skills at a level higher than Level 3;
(x) lubrication of production machinery equipment;
(xi) problem solving skills.
(d) Subject to Schedule B.1.4(e),Level 4 includes the following occupations:
(i) Assembler A.
(ii) Machinist grade 1.
(iii) Computerised automatic glass cutting machine operator.
(iv) Automatic edge grinding/polishing machine operator.
(v) Automatic bevelling/polishing machine operator.
[B.1.4(d)(vi) varied by PR994529 ppc 01Jan10]
(vi) Dispatch worker/glass vehicle driver (crane mounted vehicles).
(e) An employee currently classified as an Assembler A who is only required to perform the duties specified in Schedule B.1.3 must be paid in accordance with Level 3. Where such employee performs a wider range of duties including those more complex tasks identified for Level 4,then such employee must be paid in accordance with Level 4.
B.1.5 Level 5 [relativity to Level 5—100%]
(a) An employee to be classified at this level will hold a trade certificate, Tradesperson’s Rights Certificate, or have completed the required training or will have equivalent skills gained through work experience in accordance with the prescribed standards for this level. In all cases the employee will be required to satisfactorily complete a competency assessment to enable the employee to perform work within the scope of this level.
(b) An employee at this level performs work above and beyond the skills of an employee at Level 4 and to the level of their skill and training:
(i) understands and applies quality control techniques;
(ii) inspects products and/or materials for conformity with established operational standards;
(iii) exercises good interpersonal communication skills;
(iv) exercises discretion and utilises basic fault finding skills in the course of their work;
(v) works in a safe manner so as not to injure themselves or other employees;
(vi) performs work under limited supervision either individually or in a team environment;
(vii) conducts training in conjunction with a skilled trainer as required;
(viii) while undertaking structured training, performs work within the scope of that training subject to safety and training requirements.
(c) Indicative of the tasks which an employee at this level may perform are the following:
(i) carrying out of tasks from basic plans, sketches and drawings in conjunction with appropriate written or verbal instructions;
(ii) selection of materials and operation of machinery and/or equipment to produce articles in accordance with trade standards;
(iii) identification and initiation of relevant action to obtain materials, tools and machinery requirements for a particular job;
(iv) maintenance and use of hand held pneumatic, power and personal tools;
(v) understanding and undertaking of basic quality control/assurance procedures on the work of employees in lower classifications;
(vi) assisting in the provision of on-the-job training in conjunction with other tradespersons and supervisors;
(vii) keyboard skills at a level higher than Level 4;
(viii) operation of all lifting equipment incidental to their work;
(ix) performance of non-trade tasks incidental to their work;
(x) performance of work which, while primarily involving the skills of an employee’s trade, is incidental or peripheral to the primary task and facilitates the completion of the whole task and which does not require additional formal technical training;
(xi) approval and passing of first-off samples and maintenance of quality of product;
(xii) operation, setting up and adjustment of all production machinery in a plant to the extent of their training;
(xiii) performance of a range of maintenance functions;
(xiv) understanding and application of computer techniques as they relate to production process operations;
(xv) high level stores and inventory responsibility beyond the requirements of an employee at Level 4;
(xvi) other tasks as directed in accordance with their level of skill and training.
(d) Level 5 includes the following occupations:
(i) Carpenter and/or joiner.
(ii) Stonemason.
(iii) Prefab tradesperson.
(iv) Painter.
(v) Plasterer.
(vi) Glazier.
[B.1.5(d)(vii) varied by PR503860 ppc 12Nov10]
(vii) Glass cutter.
(viii) Automatic bevelling/polishing machine setter operator.
(ix) Automatic edge grinding/polishing machine setter operator.
B.1.6 Level 6 [relativity to Level 5—105%]
(a) An employee to be classified at this level will have completed the required training or will have equivalent skills gained through work experience in accordance with the prescribed standards for this level. In all cases the employee will be required to satisfactorily complete a competency assessment to enable the employee to perform work within the scope of this level.
(b) An employee at this level performs work above and beyond the skills of an employee at Level 5 and to the level of their skill and training:
(i) performs work under general supervision either individually or in a team environment, and is able to examine, evaluate and develop solutions to problems within the scope of this level;
(ii) understands and implements quality control techniques and is responsible for the quality of their work and is able to identify faults in the work of others at this or lower levels;
(iii) exercises discretion and utilises fault finding skills in the course of their work;
(iv) works in a safe manner so as not to injure themselves or other employees and is able to identify hazards and unsafe work practices which may affect others in the team environment;
(v) exercises good interpersonal skills;
(vi) provides guidance and assistance as part of a work team;
(vii) while undertaking structured training, performs work within the scope of that training subject to safety and training requirements.
(c) Indicative of the tasks which an employee at this level may perform are the following:
(i) reading, interpreting and calculating information from production drawings, prints or plans;
(ii) assisting in the provision of on-the-job training in conjunction with other tradespersons and supervisors;
(iii) exercising trade skills relevant to the requirements of the enterprise at a level higher than an employee at Level 5;
(iv) operating a wide range of complex machines or equipment in the workplace;
(v) applying relevant legislation to the work of self and others;
(vi) other tasks as directed in accordance with their level of skill and training.
(d) Level 6 includes the following occupations:
(i) Letter cutter.
(ii) Joiner special class.
(iii) Joiner-setter out.
(iv) Prefab setter.
(v) Signwriter.
(vi) Specialist glass cutter.
(vii) Supervisor—toughening plant, laminating plant, silvering plant, insulation unit plant or glass bending plant.
B.1.7 Level 7 [relativity to Level 5—110%]
(a) An employee to be classified at this level will have completed the required training or will have equivalent skills gained through work experience in accordance with the prescribed standards for this level. In all cases the employee will be required to satisfactorily complete a competency assessment to enable the employee to perform work within the scope of this level.
(b) An employee at this level performs work above and beyond the skills of an employee at Level 6 and to the level of their skill and training:
(i) exercises the skills attained through satisfactory completion of the training and standard prescribed for this classification;
(ii) provides guidance and assistance as part of a work team;
(iii) assists in the provision of training in conjunction with supervisors and trainers;
(iv) understands and implements quality control techniques and is responsible for the quality of their work and is able to identify faults in the work of others at this or lower levels;
(v) works in a safe manner so as not to injure themselves or other employees and is able to identify hazards and unsafe work practices which may affect others in the team environment;
(vi) exercises excellent interpersonal skills;
(vii) performs work under limited supervision either individually or in a team environment;
(viii) exercises discretion within their level of training.
(c) Indicative of the tasks which an employee at this level may perform are the following:
(i) exercising of high precision trade skills using various materials and/or specialised techniques;
(ii) performance of operations on a CAD/CAM terminal in the performance of routine modifications.
(d) Level 7 includes the following occupations:
(i) Carver.
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