Ye v Bertacco - [2025] FedCFamC2G 714

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ye v Bertacco [2025] FedCFamC2G 714

File number: MLG 304 of 2024

Judgment of: DEPUTY CHIEF JUDGE MERCURI

Date of judgment: 21 May 2025

Catchwords: HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed.

Legislation: Racial Discrimination Act 1975 (Cth), ss 3, 9, 18A, 18C

Cases cited: Kaplan v State of Victoria (No 8) [2023] FCA 1092
Murugesu v Australia Postal Corporation [2015] FCCA 2852
Qantas Airways Ltd v Gama [2008] FCAFC 69

Division: Division 2 General Federal Law

Number of paragraphs: 293

Date of last submissions: 8 November 2024

Date of hearing: 6-8 November 2024

Place: Melbourne

Counsel for the Applicant: Mr R Miller

Solicitor for the Applicant: Jewell Hancock Employment Lawyers

Counsel for the First Respondent: The first respondent appeared in person

Counsel for the Second Respondent: Mr G Jegatheesan

Solicitor for the Second Respondent: Wonders Legal
ORDERS

MLG 304 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
YIAN YE

Applicant

AND:
LLIAM BERTACCO

First Respondent

TOTO PROPERTIES PTY LTD

Second Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

21 MAY 2025

THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION

Before the court is an application alleging unlawful discrimination in breach of the Racial Discrimination Act 1975 (Cth) (‘the RD Act’). In particular, the applicant claims that the first respondent breached both sections 9 and 18C of the RD Act and that the second respondent is vicariously liable for those breaches. In addition, the applicant claims that the second respondent has independently breached s 9 of the RD Act.
BACKGROUND
The applicant, Mr Ye, at all relevant times worked for the second respondent, Toto Properties Pty Ltd (‘Toto’). Mr Mikus was at all relevant times the sole director of Toto. The first respondent, Mr Bertacco, was also at all relevant times engaged by Toto. In circumstances where Mr Ye no longer pressed his claim regarding the alleged termination of his employment, the question of whether Mr Ye (and Mr Bertacco) were engaged as employees or independent contractors ceased to be live issues in these proceedings, given the definition of employee in the RD Act, which is also discussed in more detail below.
Mr Ye commenced working for Toto from 3 April 2018 as a labourer/trade assistant.[1] Initially he was paid $22.50 per hour. Mr Ye ceased working for Toto in April 2019. He recommenced working for Toto in August 2019 from which time his hourly rate increased to $27.50.[2]
[1] Court book at page 23.
[2] Court book at page 19.
Toto is a small building company which undertakes residential building and renovation work.[3] Mr Mikus sometimes worked on site, and at other times, simply attended worksites as required. Over the period that Mr Ye worked with Toto, the company variously engaged between 2 and 16 workers depending on the amount of work that the company had at any particular time.
[3] Court book at page 260.
It is not in dispute that during his time working with Toto, Mr Ye was the only employee of Chinese race and ethnicity.[4] It is also not in dispute that Mr Ye largely worked with Mr Bertacco although at times, if Mr Mikus needed Mr Ye to assist him, he would attend to Mr Mikus’ work and then once that was complete he would go and assist Mr Bertacco if required.
[4] Court book at page 19.
Mr Ye makes numerous allegations about Mr Bertacco’s conduct towards him during his time with Toto. Mr Ye claims that Mr Bertacco engaged in objectional behaviour towards him including making racial taunts and slurs directed to him or made in his presence. Mr Ye also makes a series of allegations that Mr Bertacco engaged in other rude and objectionable behaviour towards him in the workplace and says that whilst these were not specifically racial in their terms, he says that he was targeted in this way because of his race. Mr Ye also refers to various text messages sent to him by Mr Bertacco as further examples of the racial taunts and slurs to which he says he was exposed.
Mr Ye claims that some of these racial slurs were made at the workplace, that as such, they were made otherwise than in private, and that this brings them within the operation of s 18C of the RD Act.
On 1 March 2022, Mr Ye says that there was an incident between himself and Mr Bertacco, in which Mr Ye finally retaliated, he says in response to Mr Bertacco’s ongoing inappropriate behaviour.[5] It is not in dispute that later that evening, Mr Mikus sent Mr Ye a text message to have the next day off and that Mr Ye no longer worked for Toto.
[5] Court book at page 24.
Mr Ye has not had any contact with Mr Bertacco since 1 March 2022 (other than for the purposes of these proceedings). It is not in dispute that a few days after the 1 March incident, Mr Ye contacted Mr Mikus and asked him to sign a letter for Mr Ye’s visa application, prepared by Mr Ye (or his migration agent) which nominated his period of employment with Toto as being from 22 August 2020 to 1 March 2022. Mr Mikus signed and returned the requested letter dated 4 March 2022.[6]
[6] Court book at page 61.
Mr Ye subsequently made an application for workers' compensation which was ultimately accepted by Toto’s insurer on 25 August 2022.[7]
[7] Court book at page 83.
CLAIMS
Mr Ye claims that by virtue of his conduct, Mr Bertacco has breached:
·section 9 of the RD Act; and/or
·section 18C(1) of the RD Act.
and that Toto is vicariously liable for the unlawful actions of Mr Bertacco.
Mr Ye also claims that he was paid less than the amount Toto paid to a Caucasian labourer/trade assistant, and in doing so, Toto breached s 9(1) of the RD Act.
Mr Ye initially claimed that the termination of his employment was by reason or, or for reasons including his race, national or ethnic origin, in breach of s 15(1)(c) of the RD Act. In closing submissions, Mr Ye withdrew this aspect of his claim although he said that the ongoing loss which resulted from his inability to continue working beyond 1 March 2022, ought to be taken into account in assessing the loss arising from the discrimination to which the applicant says he has been subjected to at the hands of Mr Bertacco. It was submitted that if the court finds that Mr Ye decided not to return to the workplace, he did so because of the conduct of Mr Bertacco and therefore the loss suffered as a result ought to be taken into account as part of any award of damages.[8]
[8] Court transcript at page 250.
As a result of these claims, the applicant seeks an award of damages for loss suffered, and declarations that the respondents have each contravened the RD Act. The applicant also seeks an apology from each of the respondents.
WITNESSES – GENERAL OBSERVATIONS
Each of the witnesses gave evidence in chief by way of affidavit. They were all subjected to cross examination. Before detailing the evidence given, I make the following general observations about each of the witnesses.
Mr Ye vacillated between giving extremely detailed evidence about matters that might support his case on the one hand to being at times evasive and non-responsive on the other. Importantly, Mr Ye did not make concessions which were reasonable and open. For example, in the face of not only Mr Bertacco’s direct evidence and that of Mr Mikus and Mr Chianese about the obvious friendship that had developed between Mr Bertacco and Mr Ye, Mr Ye maintained in cross examination that whilst he did attend Mr Bertacco’s home on occasions, including during time that Mr Bertacco spent with his son, that he felt pressured by Mr Bertacco to do so. Mr Ye’s evidence in this regard is not consistent with his own text message communications with Mr Bertacco from which it was clear that they shared humorous, albeit at times inappropriate, exchanges.
In addition, at times Mr Ye gave evidence which went well beyond the claims made in his affidavit. For example, in his affidavit material, Mr Ye, at its highest described Mr Bertacco as being ‘aggressive and angry’ or ‘quite angry and moody’ and ‘yelling’ at him.[9] In the course of cross examination, he expanded upon this evidence describing, for example, the occasion when Mr Bertacco came to Mr Ye’s home in April 2019 after he told Mr Mikus he would not continue working for Toto. In cross examination, Mr Ye described Mr Bertacco as ‘enraged’, and that his face was red, ‘there might have been saliva as … [Mr Bertacco] spoke was coming out of [Mr Bertacco’s] mouth …’.[10]
[9] See Court book at page 76.
[10] Court transcript at page 91.
In relation to Mr Mikus, in his affidavit, Mr Ye said:[11]
11.      … Peter was generally angry and intimidating to talk to
…
22.      …
(e)       I found Peter intimidating and unapproachable …
[11] Court book at page 75.
In his reply affidavit, Mr Ye further said at paragraph 10:
10.… I did occasionally make mistakes at work, as all employees did. Each time I made a mistake, Lliam (and sometimes Peter) would yell at me, have an outburst and/or bring it up again and again in the weeks or months after. …
In the context of this very general evidence in chief, when asked about Mr Mikus’ conduct towards him during his time at Toto, Mr Ye raised a range of other significantly more specific complaints about Mr Mikus’s conduct towards him, none of which were mentioned specifically in Mr Ye’s affidavit material.[12] This included allegations that Mr Mikus screamed at Mr Ye.
[12] See Court transcript at pages 42 to 45.
Similarly, whilst it is clear that Mr Mikus as the owner and director of Toto was in charge of the second respondent, Mr Ye refused to acknowledge this and at one point suggested that to him it appeared that Mr Mikus reported to Mr Bertacco on site.
I found Mr Ye to answer questions put to him in ways which he believed were consistent with and supported the narrative he sought to project before the court. Having regard to the totality of the evidence, I formed the view that Mr Ye’s evidence was not credible and that he embellished his claims in a manner that he considered would support his claims.
Mr Bertacco represented himself and gave evidence and was subject to cross examination. He came across as a genuine, if unsophisticated, person. He acknowledged that his language, and that of others, on a building site was at times ‘rough’ and that he regularly swore both at work and in his life generally, and that he was blunt and to the point. He conceded that he engaged in jokes and banter with the applicant more so than he did with other workers on site. He maintained that this was because he believed that he and Mr Ye were ‘friends’ outside of work as well as at work.
His evidence however, painted a picture of a person who was a bit of a larrikin and a joker. For example, he gave evidence that he did joke around with Mr Mikus on at least one occasion where he jumped out from behind something and gave Mr Mikus a ‘scare’ as a joke. This is dealt with further below as it is one of the allegations made against Mr Bertacco by the applicant.
However, Mr Bertacco also gave evidence, which I accept, that he took Mr Ye under his wing and tried to support him in learning what was required on a construction site. Mr Bertacco’s evidence, which I accept, is that he genuinely felt that he and Mr Ye were friends and this was why he perhaps engaged in more ‘banter’ with him than he would have with other workers. Mr Bertacco points to the fact that their friendship extended beyond the workplace, including outings with his son and taking Mr Ye to his mother’s home, as well as the extent of the text message exchanges which included an exchange of jokes and banter from both himself and from Mr Ye.
Mr Bertacco also gave evidence that he does not hold racist attitudes towards Chinese people specifically or Asian people more generally, or indeed any other racial group. He gave evidence that he has provided his time and effort in Cambodia for a charity as an example of his lack of racist attitudes. Whilst I accept this evidence, I note that it is possible for a person not to hold overtly racist views but to engage in conduct which by its nature is inconsistent with s 9 and possibly s 18C of the RD Act if it has the necessary effect, irrespective of its intent.
Mr Mikus also gave evidence in his capacity as sole director and managing director of Toto. He too gave evidence in an open and frank manner and denied that he has ever acted in a manner towards Mr Ye which could be construed as a breach of the RD Act. He gave evidence about having come to Australia as an international student and then subsequently starting his construction business. He gave evidence that he felt a sense of connection with Mr Ye who also had come to Australia as an international student and wanted to give him an opportunity even though Mr Ye had no experience in the building industry.
Notwithstanding that the applicant had no prior experience working in the construction industry, Mr Mikus gave the applicant a job and continued to have him work on his projects over a period of more than four years. I accept that there may have been occasions when Mr Mikus expressed frustration if the applicant did not complete a task in the expected time frame or to the requisite standard. However, that does not equate to singling the applicant out for such treatment.
Having had the benefit of observing each of the witnesses, to the extent that there was a difference between the evidence given by Mr Ye on the one hand and Mr Bertacco or Mr Mikus on the other, I prefer the evidence of Mr Bertacco and/or Mr Mikus.
EVIDENCE
Mr Ye deposes to coming to Australia on student visa in September 2016 from China.[13] He deposes to knowing a few people when he came to Australia but not having a close support network.
[13] Court book at page 230.
Mr Bertacco deposes to being a 53-year-old single father with a 10-year-old son. Mr Bertacco left school at the age of 15 and commenced working shortly thereafter. He obtained his HSC at the age of 17, commenced a university degree but did not complete his first year of study. He completed a carpentry apprenticeship in the late 1990’s early 2000’s and has remained working in the construction industry since then and has continued working as a carpenter in for about 30 years. He started working with Toto in 2016. [14]
[14] Affidavit of Lliam Bertacco affirmed on 25 June 2024 and filed on 27 June 2024.
Mr Mikus deposes to having been born in Slovenia and coming to Australia in 2005 as an international student studying Shiastu and Oriental Medicine with an emphasis on Traditional Chinese Medicine. During this time, he met his now wife, who is a Chinese national and together they have three children.[15]
[15] Affidavit of Peter Mikus affirmed and filed on 6 July 2024.
Mr Mikus commenced working as a carpenter full time after completing his studies in 2008 and ultimately became a licenced builder. He established Toto in 2011 and through it, provides building and renovation services for the residential market. He says that at times he works on site, but more regularly travels between various sites to oversee and manage projects.[16]
[16] Affidavit of Peter Mikus affirmed and filed on 6 July 2024.
Mr Ye’s engagement
In early 2018, Mr Ye posted a listing on a website called Gumtree in which he stated he was looking for construction work. [17] He says that he then received a message from Mr Mikus about a job with Toto. Mr Ye and Mr Mikus spoke by phone on about 30 March 2018, as a result of which Mr Ye was offered work with Toto as a labourer/trade assistant. Mr Ye also says that Mr Mikus asked him where he was from and when the applicant said he was from China, Mr Mikus told him that his wife was also from China.
[17] Court book at page 74.
Mr Ye claims that they discussed his rate of pay and that he suggested a rate of $25 per hour which Mr Mikus initially agreed to and told Mr Ye to come to work on 3 April 2018.[18] Mr Ye says that in his first week, Mr Mikus told him that he could not pay him $25 per hour but could only pay him $22.50. Mr Ye says that when he asked why, he was told that Mr Mikus had to pay tax.[19] Mr Ye said he did not take this issue up at the time as he found Mr Mikus to be angry and intimidating to talk to.
[18] Court book at page 74.
[19] Court book at page 75.
Mr Mikus denies that Mr Ye suggested a rate of $25 when they first met. Mr Mikus’s evidence in the course of cross examination was that he agreed a rate of pay with Mr Ye of $22.50 on his first day at the worksite.[20]
[20] Court transcript at page 167.
When asked about whether Mr Ye was paid less than other workers who were not Chinese, Mr Mikus agreed that Mr Ye was the lowest paid worker and that he was the only Chinese worker on site.[21] It is not in dispute that when Mr Ye was engaged, Toto also had another worker, Colin, who was paid $35 per hour. Mr Ye says that this differential was based on his race. Mr Mikus’ evidence, which I accept is that Colin’s skill level was greater than that of Mr Ye’s and in addition, Colin had his own power tools. Mr Mikus’ evidence is that he personally observed the tools Colin had as they worked together on site. Moreover, Mr Mikus also noted Colin’s carpentry skills at the time which Mr Ye did not have. In this regard, Mr Mikus gave the following evidence:[22]
I asked him, ‘What tools you have? What can you do?’ And he produced his framing gun, his circular saw. He did the job himself confidently as a carpenter. He was labourer/carpenter, but he have a carpenter skills at the time, which Allen didn’t have.
…
I saw what I saw. That’s why I’m employing for $35 per hour. I don’t throw money away just like this. Somebody have to earn his wage …
[21] Court transcript at page 167.
[22] Court transcript at page 180.
Mr Mikus says:[23]
… Given Alan did not own his own tools or equipment and did not have any prior experience in the building industry, it would be necessary for other contractors to lend their own tools to Alan from time to time and supervise any work he performed, which then detract from any work they were engaged in at the time. However, I decided to offer Alan an opportunity to provide his services as a ‘labourer’ because I could relate to his experience as a young immigrant to Australia looking for an opportunity to earn money and start a life in Australia.
[23] Affidavit of Peter Mikus affirmed and filed on 5 July 2024, paragraph 13.

In setting the pay rate that he offered the applicant, Mr Mikus said that he considered the fact that the applicant did not have any experience or any tools. Mr Ye agreed that he used Mr Bertacco’s tools when they worked together, and his own evidence was that owned some basic hand tools.[24]
[24] Court transcript at page 107.
I accept Mr Mikus’ evidence as to the reason and basis upon which he set Mr Ye’s pay rate, namely that the rate of pay offered to Mr Ye was based on the fact that he had absolutely no construction experience at the time and this was in no way based on his race or ethnic origin.
Mr Mikus gave evidence that he does not tolerate any racially motivated negative conduct towards people on his worksites. I accept that evidence and I also accept that anyone who worked for him would be aware of his views and expectations in this regard. When asked about training he had undertaken in relation to his anti-discrimination obligations in Australia, Mr Mikus gave compelling evidence that although he had not formally done any such training, he was well aware of his obligations to ensure that workers and others are treated appropriately and respectfully in the workplace. Mr Mikus said that although he was not expressly familiar with anti-discrimination legislation, he is ‘familiar with the spirit’ of the legislation and how someone should behave in Australia or anywhere else.[25] In this context, he was asked how he gained this understanding and how he became familiar with equal opportunity issues if he had not done any formal training. In response to this question, Mr Mikus said:[26]
Well, let me explain a little bit on this. Australia, rightly so, represent itself as a equal opportunity country, and that’s absolutely fine; however, .... only going on for a few decades. The place where I come from, there are several [nationalities] living in harmony for centuries. I come from Slovenia but of ethical mixed territory with Italy and Croatia and Bosnia, and we live in racially – not racially – not nationally diverse territory for centuries. Every government official have to speak two languages by law; otherwise, he doesn’t get a job. So I’m familiar with concept of equal opportunity and equality for everybody well before I came in Australia and to much deeper level than here might be … understood … considering that we have just recently research from University of Sydney where professors actually discriminate against different races. So I think I’m competent to understand what the equal opportunity means.
[25] Court transcript at page 173.
[26] Court transcript at page 173.
In addition, Mr Mikus gave evidence that he is married to a person of Chinese ethnicity and his children share that ethnicity, and that he would not tolerate any racially inappropriate comments made against any person, but particularly someone of Chinese ethnicity.
In relation to the specific matters raised by Mr Ye against him, Mr Mikus denies that he yelled at Mr Ye as alleged. He does say that there was one incident where Mr Ye did not follow his instructions about delivering some material to the site and he was clearly angry but was not yelling and that his behaviour towards the applicant was no different to how he would behave in any similar circumstances to any other contractor who had not followed instructions irrespective of their race or ethnic origin.
Mr Mikus also gave evidence that at no stage did he receive any complaints from customers about the way that Mr Bertacco and Mr Ye worked together. On the contrary, he said that he received a compliment from one particular client who was very complementary about the way that Mr Bertacco was explaining things to Mr Ye. This was in the context of work being performed at a home renovation during the COVID lock downs when the clients were both working from home and were therefore able to observe the interactions between Mr Bertacco and Mr Ye.[27]
[27] Court transcript at page 183.
It is common ground that Mr Ye was not provided with an employment contract and nor were there any formal written policies and procedures in place. Given the definition of ‘employment’ for the purposes of the RD Act and the fact that it extends to a person who performs work under a contract for services, as well as under an employment Act, it was agreed that the nature of the applicant’s engagement ceased to be an issue requiring determination. Similarly, in circumstances where the applicant withdrew his claim that his employment was terminated due to his race, the nature of the applicant’s engagement, ultimately, did not require judicial determination.
Mr Ye says he completed his Certificate III in Carpentry on 6 August 2018 and that between 6 August 2018 and 5 April 2019, he worked on average 40 hours per week.[28]
[28] Court book at page 75.
Mr Ye says that when he commenced working, both Mr Bertacco and Mr Mikus worked together on the worksites, but over time, Mr Mikus only came to the worksite if there was something specific he needed to do and he generally worked with Mr Bertacco.
Mr Bertacco says that as the applicant was a labourer, when they worked together on a project, he would let the applicant know what needed to be done.
Mr Mikus said that the applicant’s main duties were ‘assisting the site manager, picking up materials, delivering those materials onsite, assisting generally with carpentry work, site cleaning and similar duties.’ [29] He said that when there was work available at a particular project, the applicant would ordinarily work from 7am to 3.30pm each day until the project was completed. Once a project was completed, if there was another project that required his services, the applicant would be offered further work. Whether this was immediately or whether there was a break would depend on what work was available. This is consistent with the evidence given by Mr Bertacco about how Mr Mikus allocated work to workers on Toto sites.
[29] Affidavit of Peter Mikus affirmed and filed on 5 July 2024, paragraph 18.
It is common ground that Mr Mikus accommodated Mr Ye’s desire to have time off to engage in his other activities. For example, there were times when he did not work on Thursdays as he had Jiu Jitsu lessons.[30]
[30] Affidavit of Peter Mikus affirmed and filed on 5 July 2024, paragraph 20.
Mr Ye’s relationship with Mr Bertacco
As stated, at the heart of Mr Ye’s complaint is that, although he did try and get along with Mr Bertacco, he says that he found Mr Bertacco to be quite angry and moody and Mr Ye says that Mr Bertacco subjected him to a range of inappropriate behaviour, he says based on his race.
Mr Bertacco denies this and says that after a short period of working together, he and Mr Ye developed a friendship. In particular, Mr Bertacco says that it became apparent to him that Mr Ye did not have a large support network around him and Mr Bertacco began to invite him to various activities outside of work so that Mr Ye would not be as lonely.
Mr Ye agrees that after some months of working together, Mr Bertacco started inviting the applicant to ‘hang out’ outside of work and spend time with him and his son, but says he only went along, as he felt pressure to do so.[31]
[31] Court book at page 76.
It is common ground that Mr Ye went roller skating, to various outings, including to Mr Bertacco’s home both with Mr Bertacco and his son. Mr Ye says at times, he told Mr Bertacco that he didn’t want to go and then a few hours later, he would receive a call from Mr Bertacco’s son asking him to go and so he did.[32]
[32] Court book at page 76.
I find Mr Ye’s evidence in this regard to be unconvincing and prefer the evidence of Mr Bertacco. The contemporaneous communications by text message between Mr Bertacco and Mr Ye are consistent with Mr Bertacco’s version of events, namely that a friendship was forged between the two men. In addition to work related communications, there is evidence that both men engaged in light-hearted banter, including some communications from each of them that objectively speaking might be considered to be inappropriate, but for the context in which it occurred.
Mr Ye himself acknowledges that at times he felt like he and Mr Bertacco were friends. Mr Ye acknowledges that in about December 2018 when Mr Bertacco broke his hip in a work related injury, Mr Ye visited him in hospital. After this injury, Mr Bertacco also asked Mr Ye to come and assist with various things around his house and Mr Ye did so on about 20 occasions.[33] In his affidavit, Mr Ye says that he only did this in the hope that Mr Bertacco would stop being aggressive and angry towards him. I do not accept this evidence.
[33] Court book at page 76.
Nor do I accept Mr Ye’s evidence that he only agreed to go to a shooting range and a local carnival with Mr Bertacco in the hope that if he went, Mr Bertacco would not be angry and aggressive towards him.
Mr Bertacco has maintained throughout these proceedings that from his perspective he took Mr Ye under his wing, both at work and in a personal capacity and that they developed a friendship outside of work in which they both joked about things together. He says that his comments made in the work setting ought be properly viewed in the context of this broader friendship and that whilst some of the comments which he admits he made, might appear inappropriate when viewed in isolation, they are in fact indicative of the type of relationship that he and Mr Ye had and which take on a different complexion when viewed in that context.
Mr Bertacco also says that the comments made on the worksite must be viewed in the context of the culture that exists on a worksite which is different from the sensitivities that one might expect, for example, in a white-collar environment.
In support of the nature of his relationship with Mr Ye, Mr Bertacco has provided a range of text messages and other communications between himself and Mr Ye which indicate that Mr Ye participated in the banter that he now says he took objection to.[34] For example:
[34] See Exhibit D, ‘Annexures to the Affidavit of Lliam Bertacco filed on 27 June 2024 (in colour)’.
·In March 2020, Mr Ye sent a message to Mr Bertacco in which he said “Hahaha Can you shit sitting down”;
·in March 2020, Mr Ye sent Mr Bertacco an image of an article with the heading ‘Lesbian numbers plummet – Coronavirus Chaos Making Men More Desirable’ and then said “Get more girlfriends”;
·on 6 September 2021, Mr Ye sent a Youtube video to Mr Bertacco with the heading ‘Meanwhile in Russia’ – the message was sent at 8.35 pm;
·on 28 September 2021, Mr Bertacco sent a photo to Mr Ye of his son wearing a t-shirt gifted to him by Mr Ye;
·exchanges between Mr Ye and Mr Bertacco about various items of interest, e.g. on 11 September 2020, Mr Ye sent an image of ‘Universal Phone Suction Holder Strap’ to Mr Bertacco to which Mr Bertacco replies “Get it” and Mr Ye then replies “be the bad n- word”;
·text message exchanges between Mr Ye and Mr Bertacco in September 2020 about gaming vouchers and noodles;
·late night message from Mr Ye to Mr Bertacco on 13 September 2020 about the comedian AliG with a message ‘Watch this story by Excuse Me on Instagram before it disappears’;
·text message exchanges in March 2021 about business ideas that Mr Ye was considering/exploring; and
·various photos of Mr Ye spending time with Mr Bertacco and his son clearly outside of work hours, at carnivals, shooting range, and the like.
I prefer Mr Bertacco’s evidence that:
·he thought the applicant might be lonely and therefore began inviting him to do things together outside of work and that he did not pressure the applicant to attend, he was simply trying to make a young person feel included;
·he invited the applicant into his home, his family and his life out of a genuine attempt to make a young person who was living in Australia without friends or family, feel welcome in the community; and
·he took the applicant under his wing on the worksite as well in circumstances where he did not have any prior construction work experience.
Mr Bertacco also gives evidence about the preferential treatment that Mr Ye received compared to other workers. For example, he says that during the COVID-19 pandemic, Toto laid off a number of more experienced workers but kept him and Mr Ye on. He said that he understood that Mr Ye was kept on at that time because he and Mr Ye worked well together.[35]
[35] Court transcript at page 193.
Mr Bertacco’s evidence about his support for Mr Ye in the workplace also supports that he and Mr Ye were in fact friends rather than just work colleagues and that this friendship extended beyond the workplace. I also accept Mr Bertacco’s evidence that in addition to helping Mr Ye in the workplace (for example, by letting Mr Ye freely use his tools), Mr Bertacco also helped Mr Ye outside of work. For example, when Mr Ye had issues with his rental accommodation, Mr Bertacco helped him to find alternative accommodation.
Another worker from Toto, Mr Chianese, has also given evidence in these proceedings. His observations of Mr Ye and Mr Bertacco are consistent with Mr Bertacco’s description of their friendship. Mr Chianese deposes to working for Toto from April 2019 to February 2020 and then February 2022 to December 2023.[36] He said that he worked alongside Mr Bertacco and Mr Ye and believed them to be good friends. Relevantly he said:[37]
7.I recall that Lliam and Alan almost always ate lunch together on site. Alan often used to show Lliam things on his phone and the two of them would watch and laugh together. I have also seen them share their food. I never saw Alan distressed or upset around Lliam. I never witnessed any behaviour which suggested that Lliam was bullying or harassing Alan.
8.Whilst there was a level of joking and banter between contractors on the worksite, as is the case with any building site in the construction industry, I did not witness any behaviour which I would perceive as Lliam bullying or harassing Alan. … I recall that Alan would sometimes refer to Lliam as an “old Aussie fart” and on another occasion when Lliam returned to work after injuring his hip Alan mocked the way in which Lliam was limping on the work site.
[36] Affidavit of Michael Chianese affirmed on 2 October 2024 and filed on 3 October 2024.
[37] Affidavit of Michael Chianese affirmed on 2 October 2024 and filed on 3 October 2024, paragraphs 7 and 8.
In cross examination, Mr Ye conceded that at times he joked with Mr Bertacco, both on the worksite and out of work. He conceded that he sent memes to Mr Bertacco which he considered to be funny.[38]
[38] Court transcript at page 58.
Whilst Mr Ye conceded that in some of his own dealings with Mr Bertacco he also engaged in what could be described as inappropriate exchanges, he sought to minimise his understanding of what he was saying and/or that he used terms that Mr Bertacco had introduced him to without properly understanding what they meant. I do not accept this evidence.
For example, Mr Ye conceded that he called Mr Bertacco a ‘masturbator’ but goes on to explain the context in which this occurred as follows:[39]
22.… early on in my employment with Toto Properties, Lliam used to jokingly say that he was my “grandmaster” and I was his “grasshopper”. He also repeatedly asked me to call him grandmaster. On these occasions, in response to what was a joke, I jokingly called Lliam a “masturbator”.
[39] Court book at page 228.
In the course of cross examination on this issue, the following exchange occurred:[40]
[40] Court transcript at pages 60 and 61.
Toto’s counsel: … Did you, at different times on the worksite, call Mr Bertacco names in a joking way?---
Mr Ye:Rarely.
Toto’s counsel: But you agree that sometimes you called him names as a joke?---
Mr Ye:I don’t know if I would say call him names, but usually if he mentions something and I thought of something I saw on the internet, that’s when I would mention it.
Toto’s counsel:          Could you give me an example?---
Mr Ye:  For example, he said masturbator.
Toto’s counsel:           Yes?---
Mr Ye:So that was from – because at that time, there’s a video game called PlayerUnknown’s Battleground. It’s very popular. So I was watching, I think, a compilation of streams, of recordings, and I – and there was this girl streamer who had a player, she was playing a player, so she baited this guy, followed him all around in the house. And she had three other of her teammates with her. So when the guy walked in, everybody started shooting and executed the other player. And she said, “I’m a baiter. I’m a master baiter.” So when Lliam would joke around and say, “I’m the grandmaster, you’re the grasshopper”, that’s when I would mention the word, “master baiter”.
Toto’s counsel: And you were doing that – could you describe your intention in saying that to him?---
Mr Ye:  I was joking, and he seemed happy when he was saying that.
Toto’s counsel: And he used to make a joke that you should call him “grandmaster”; is that right?---
Mr Ye:Yes.
…
Toto’s counsel: Not then. But he used to ask you to call him “grandmaster”?---
Mr Ye:It’s more like joking. I don’t know if he specifically asked me to do it.
Toto’s counsel:           Yes. And on one occasion you called him, “sensei”?---
Mr Ye:   Yes.
Toto’s counsel:           In a joking way?---
Mr Ye:  Yes.
I am not persuaded by this evidence. This is another example of Mr Ye seeking to minimise his own participation in a friendship with Mr Bertacco in which they both engaged in banter with each other which included the use of what might in a different context be considered to be inappropriate.
Mr Ye also agreed that he sent Mr Bertacco a meme about a supposed drop in the number of lesbians after COVID and therefore more girls being interested in men and the increased prospect of getting a girlfriend.[41] This exchange and others between Mr Ye and Mr Bertacco, are more consistent with a friendship between the two of them than the racially charged and intimidatory relationship that Mr Ye invites the court to find existed. It is highly improbable that Mr Ye would have had, and continued to have had, such exchanges with Mr Bertacco if he were, as he now claims, fearful of Mr Bertacco, and if he found Mr Bertacco’s comments in the workplace to be racially offensive, and intimidatory.
[41] Court transcript at page 58.
I also find that the nature of the banter between the applicant and Mr Bertacco included swearing, reference to the term ‘gay’, referencing Mr Bertacco as ‘master baiter’ or ‘masturbator’ and the like. The applicant also used the ‘n-word’ in a text message to Mr Bertacco which I will discuss further below. Again, when asked about this in cross examination, the applicant suggested that he only used it because Mr Bertacco used it first and that he did not understand the meaning of this term until these proceedings.[42] The applicant conceded that this was sent in a joking manner following from an earlier exchange. The applicant also conceded that he now understood that to be an offensive term. When asked about this, the applicant said ‘Well, he was the person that started using it first and that term is what he would use.’ [43]
[42] See Court transcript at page 62.
[43] Court transcript at page 62.
I do not accept this evidence.
Having regard to the totality of the evidence, I find that Mr Ye and Mr Bertacco became friends whilst working together. I prefer Mr Bertacco’s evidence as to the nature of their relationship, namely that Mr Bertacco took Mr Ye under his wing and that he did what he could to ensure that the applicant learnt the necessary skills on a construction site. I accept Mr Bertacco’s evidence that he assisted Mr Ye both in the workplace and outside of work. In particular, he assisted Mr Ye to find alternative accommodation, as well as other matters from time to time.
April 2019

It is common ground that after a year or so of working with Toto, on 6 April 2019, Mr Ye advised Mr Mikus that he would not continue with the role.[44] He told Mr Mikus that this would be his last week working. According to Mr Ye, Mr Mikus did not ask why and simply ‘nodded’.[45] The applicant says that in April 2019 he then posted another listing on Gumtree saying he was looking for work in warehousing.
[44] Court book at pages 79 and 230.
[45] Court book at page 79.
Mr Mikus said he was not shocked by this news as he understood that the applicant was setting up an online business but did comment on the short notice given. [46] Similarly, Mr Bertacco also gives evidence that he understood that Mr Ye had left Toto on the first occasion to start up an online business.
[46] Affidavit of Peter Mikus affirmed and filed on 5 July 2024, paragraph 21.
Mr Bertacco says that he visited Mr Ye at home not long after he finished working for Toto, to see how he was going. Mr Bertacco’s version is that he was simply acting out of concern for a person whom he had become friends with and whom he had assessed, did not have many supports in a foreign country.
Mr Ye seeks to put a different complexion on this visit. His evidence is that Mr Bertacco came to his home and he was yelling and screaming at Mr Ye and asking why he had not gone to work.[47]
[47] Court transcript at page 67.
Mr Ye’s evidence is that Mr Bertacco came to his home in his own personal time, as he was not working that day, only to berate and attack Mr Ye for having left Toto after they had worked together for one year. I find Mr Ye’s evidence about this incident, highly improbable. Rather, I prefer Mr Bertacco’s version that, in circumstances where he had previously formed the view that Mr Ye did not have much support in Australia, and in the context of the friendship that he had formed with Mr Ye, he was concerned about how Mr Ye was getting on and came around to check in on him. Not only is this consistent with the nature of the friendship that had developed between the two men at this stage, but it is also consistent with Mr Bertacco’s subsequent actions of checking in with Mr Ye again a few months later and then assisting him to return to Toto and negotiating a higher rate of pay for him.
To the extent that Mr Ye suggests that he left Toto in April 2019 because of the conduct of Mr Bertacco, I do not accept this.
Mr Ye’s second engagement
Mr Ye says that in August 2019, he received a call from Mr Bertacco asking if he had found work yet to which he said he had not. Mr Bertacco asked if he wanted to return to working for the second respondent and if he wanted more money, to which, according to Mr Ye, he reluctantly, said ‘yes’.[48]
[48] Court book at page 80.
Mr Ye said a few moments later, Mr Bertacco called again and said that if he returned to Toto he would be paid $27.50 per hour. As he had not secured alternative work, he agreed and returned to work.[49]
[49] Court book at page 80.
Mr Ye’s evidence about this is as follows:[50]
33.On or around 30 August 2019 I returned to work for Toto Properties. Lliam told me which worksite to go to. At that worksite, Peter walked in the door, towards me and reached out his hand to shake hands with me. He seemed very happy to see me and I was very surprised and confused as Peter generally scared me and had not been that friendly before or since.
[50] Court book at page 80.
Mr Bertacco’s evidence is that a few months after Mr Ye had left Toto, he contacted Mr Ye to see how he was going and they discussed Mr Ye returning to Toto. Mr Ye said he would come back for a higher rate of pay. Mr Bertacco says he then negotiated an increase to Mr Ye’s pay with Mr Mikus and Mr Ye returned to work for Toto.
Mr Mikus’ evidence is consistent with Mr Bertacco’s. Mr Mikus said that in August 2019, Mr Bertacco approached him and told him that the applicant wanted to come back to work but wanted to be paid $27.50 per hour. Mr Mikus said that in circumstances where the applicant now had some experience and that it was a busy time, he was happy to increase the applicant’s pay rate.[51]
[51] Affidavit of Peter Mikus affirmed and filed on 5 July 2024, paragraph 22.
Again, I prefer the evidence of Mr Bertacco and Mr Mikus about the circumstances in which Mr Ye returned to work for Toto. I accept that Mr Ye left Toto in April 2019 to try his hand at running an online business. I find that as this had not gone as well as he had hoped, he accepted the offer to return to work at Toto and that he accepted a higher rate of pay negotiated on his behalf by Mr Bertacco.
It is common ground that Mr Ye continued to work for Toto from August 2019 to March 2022.[52] Mr Ye’s evidence is that he continued to work an average of 40 hours per week during this period and submitted invoices for work performed. I note that this is not consistent with the content of the letter that Mr Ye had Mr Mikus sign for visa purposes on 4 March 2022 which states that he worked an average of 20 hours.[53] Given my ultimate findings in this matter it is not necessary for me to resolve this discrepancy.
[52] Court book at page 82.
[53] See Affidavit of Peter Mikus affirmed and filed on 5 July 2024, Exhibit ‘PM-3’.
Mr Bertacco’s treatment of Mr Ye
Mr Ye says that during his time working with Mr Bertacco, Mr Bertacco would repeatedly make derogatory remarks about Asians generally, Chinese people specifically and also would engage in mocking and ridiculing the applicant on the basis of his race. Mr Ye also claims that Mr Bertacco regularly swore at him, mocked and ridiculed him and generally treated him poorly and that this was because of his race.
Mr Ye says that Mr Bertacco engaged in this conduct on a weekly basis.[54] He says that this conduct occurred at the worksite in the presence of other workers and also occasionally in the presence of Mr Mikus.
[54] Court book at page 78.
He says that these comments and behaviours made him feel ‘angry, upset, uncomfortable, helpless, scared, confused or ashamed’.[55] He says that he did not raise these issues at the time because he was fearful, found Mr Mikus to be intimidating and thought that if he ignored the comments and behaviours they would ultimately stop.
[55] Court book at page 78.
Mr Ye sets out at paragraphs 19, 20 and 21 of his trial affidavit the various conduct allegedly engaged in and comments allegedly made by Mr Bertacco which he found offensive. Some of these claims are clearly racially based on their face. Many are not. In respect of the latter, Mr Ye claims that he was subjected to that conduct because of his race and because he was a vulnerable person due to his ethnic origin among other things.
The applicant says that he has vulnerabilities arising from the fact that he came to Australia on a student visa and whilst in Australia struggled with rent, accommodation, tuition, immigration fees and not having a close network in Australia. He says that this was part of the reason why he accepted the role with Toto, why he remained with Toto and why he was more vulnerable in his employment.
Mr Bertacco says that it is common on a construction site for there to be banter between workers and for workers to call each other nicknames without any malice at all.[56] He says that the applicant freely engaged in this banter during the time they worked together and also called Mr Bertacco unsavoury names and words from time to time. He says that he did not take this to heart as it was all just part of being on a building site and that to the extent that Mr Ye made these comments to him, they were made in the context of a friendship that had developed between them. Mr Bertacco maintains however, that it was clear to him that the applicant was not fearful of him and he expressly denies that he has discriminated against the applicant on the grounds of his race as alleged or otherwise.[57]
[56] Affidavit of Lliam Bertacco affirmed on 25 June 2024 and filed on 27 June 2024.
[57] Affidavit of Lliam Bertacco affirmed on 25 June 2024 and filed on 27 June 2024.
Mr Bertacco says that the claims now made by Mr Ye are inconsistent with the relationship that they had with each other and moreover, that in the four years they worked together, Mr Ye never complained to him or to anyone else about his alleged conduct.[58] Further Mr Bertacco says that if the applicant had made a complaint about his conduct to Mr Mikus, in particular in relation to allegations of racism, Mr Mikus would have acted and would have terminated Mr Bertacco’s engagement.
[58] Affidavit of Lliam Bertacco affirmed on 25 June 2024 and filed on 27 June 2024.
As to the specific allegations made by Mr Ye, Mr Bertacco largely denies them. To the extent that he admits some of the comments alleged, he says that these comments were not discriminatory when viewed in context.
Mr Mikus says that at no stage did he personally observe any of the conduct now alleged by the applicant against Mr Bertacco. Moreover, Mr Mikus says that no other person on site had ever reported such conduct to him. Mr Mikus also deposes that had any such issue been raised, he would have taken action as he would not tolerate any such racial discrimination on one of his worksites.
I will address each of the allegations made by Mr Ye in turn below.
Workcover claim
The applicant says that he has suffered significant pain and suffering as a result of the treatment he received whilst working with Toto and that as a consequence, on 25 August 2022 his Workcover claim was accepted. He says that he had no capacity for work from 1 March 2022 until 19 May 2023.[59] The applicant further states that he has had a couple of short-term jobs in sales and shopfitting and he has also set up his own company. He says that he continues to suffer from stress, panic attacks, anxiety and difficulty engaging with people who look like Mr Bertacco and Mr Mikus.[60] The applicant also says he suffers from anger. He says that since August 2023, he continues to see his psychologist on a monthly basis although he intended to resume on a fortnightly basis.[61]
[59] Court book at page 83.
[60] Court book at page 83.
[61] Court book at page 83.
Alleged comments made/behaviours engaged in by Mr Bertacco
I will now turn to address the factual allegations made by Mr Ye at paragraph 8 of the Statement of Claim (‘SoC’). Before doing so, I note that in his affidavit, Mr Ye does not provide details of when these incidents occurred or comments were made.
(a) adopting an exaggerated, high-pitched voice to imitate and mock [the applicant]
When asked about this in cross-examination, Mr Ye gave evidence that when he stopped working in April 2019, Mr Bertacco came to his home, and that he was angry asking why he did not come to work and that he spoke to Mr Ye in a high-pitched voice.[62]
[62] Court transcript at page 67.
When asked what he meant by this claim, Mr Ye said:[63]
It’s generally how you would yell at me, how you would – so – well , the thing we talked about … the time where you came to my house uninvited, the way you treated me was intimidating.
[63] Court transcript at page 96.
At another point in the course of cross examination by Mr Bertacco, Mr Ye said:[64]
… you always say, “Well, why didn’t you say” – “say good” what it’s, you know, the voice getting high-pitched and saying, “Why didn’t you say, ‘Good morning’?” And I … I couldn’t … understand… why you were upset. …
[64] Court transcript at page 104.
Mr Ye also referred to the incident on 1 March 2022, and said that when Mr Bertacco asked why he had only brought his water bottle from the car that he said:
… “you only bring down your fucking water bottle and gloves”, but you know –in a high pitch. Not a friendly … Not so friendly manner.
When asked about this in cross-examination, Mr Bertacco denied that he used a high-pitched voice to imitate and mock Mr Ye.[65]
[65] Court transcript at page 218.
Mr Ye has not established on the balance of probabilities that Mr Bertacco used a ‘high pitched voice’ to imitate and mock him.
(b) adopted a broken English accent to imitate and mock Chinese people
When asked to clarify this claim, Mr Ye said that Mr Bertacco told him that Chinese people sound like a ‘wingnut’.
When this was put to Mr Bertacco he denied that he did such a thing.[66]
[66] Court transcript at page 152.
Again, Mr Ye has not established that Mr Bertacco adopted a broken English accent to imitate and mock Chinese people.
(c) yelled at me, including when I asked him questions, made a mistake or did not answer my phone when [Mr Bertacco] called
When asked about this Mr Ye said:[67]
You will say things like, “I fucking told you,’” or, “Why didn’t you pick up the fucking phone?” If I … I did things wrong or – or I didn’t pick up the phone … I didn’t pick up your phone, but call you back right away.
[67] Court transcript at page 99.
In this context, the following exchange occurred:[68]
Mr Bertacco: So were these things said in context, or were they always in an aggressive manner? They were never in a jovial manner?
Mr Ye:Well I wish you never said those things to me. Whether they are joking or aggressive, I think they’re inappropriate. I don’t really like them.
[68] Court transcript at page 99.
When asked about this, Mr Bertacco agreed that he sent Mr Ye a text message to answer his phone, but he denied that he yelled at Mr Ye as alleged.[69]
[69] Court transcript at page 196.
Having regard to the totality of the evidence, I accept that at times, Mr Bertacco may have raised his voice at Mr Ye if Mr Ye failed to follow directions or made a mistake at work, however, I do not accept that this was in any way based on Mr Ye’s race or that Mr Bertacco would have adopted a different tone or approach with a person of a different race or ethnic origin.
(d) swore at me
Mr Ye referred to Mr Bertacco using expletives. In particular he said:[70]
The f-word, the c-word, the s-word.
… Fucking Chinese …
[70] Court book at page 21.
As stated above, Mr Bertacco accepts that he swears and says that he swears to everyone and that it is not limited to the worksite. Moreover, Mr Bertacco’s evidence, which I accept is that a building site is a place where language is at times colourful and where swearing may be more tolerated than it would, for example, in a white collar corporate environment. Ultimately, context is crucial.
Indeed, Mr Ye himself conceded that he also swore at times whilst at work. In this context, in cross examination of the applicant, the following exchange occurred:[71]
Mr Bertacco: But you’re a delicate petal, on a building site, where there’s ex-convicts, there’s hard guys, big guys, hard work, dangerous work. And, you know tensions are running high sometimes. And we’ve got to say – we can’t swear at all. Things go wrong, you never swear… you never swore?
Mr Ye: I did swear.
…
… you can swear. It’s your freedom of speech. But I’m not specifically saying, you know, when you said, when you said things about … maybe the toilet, or if somebody else did anything wrong. I’m saying specifically the way you spoke to me, in aggressive manner with these expletives.
[71] Court transcript at page 100.
As stated, Mr Bertacco agreed that he did swear but denied that he swore at Mr Ye specifically, rather he says that he swore regularly but not directed at him or anyone in particular.[72] When asked about the evidence given by Mr Ye about him swearing at him, Mr Bertacco said that Mr Ye was lying.
[72] Court transcript at page 209.
On balance, I accept that Mr Bertacco did swear both at the building sites whilst working with Mr Ye, and more generally, but that it was not personalised to Mr Ye. Rather I find that he swears regularly and that it is not directed at anyone in particular and it is certainly not directed at Mr Ye because of his race or ethnicity.
(e) telling [Mr Ye] to ‘speak English’ when he did not understand what [Mr Ye] had said
In the course of cross examination, Mr Bertacco denied that he said this.[73]
[73] Court transcript at page 218.
In this context the following exchange occurred:[74]
[74] Court transcript at page 101.
Mr Ye:… I used to have a thicker accent. And sometimes, when I get nervous, I might have said things too quick. Or didn’t make sense to you, but it made sense to me. So normally, people would ask, “I beg your pardon,” or you might say it again. But you just went,
“speak fucking English”.
Mr Bertacco: So who would have – who else would have heard you saying this, Mr Yian?
…
The way I was swearing at you and treating you?
Mr Ye:Pete, Claude, and Michael might not have. I believe Peter did. I don’t know if I would say always.
Mr Bertacco: That’s a big claim. Peter has a Chinese wife and Chinese kids, half Chinese kids. So do you think if I was saying anything racist or anything abusive in front of you, me and Peter, Peter would say “Good job, Lliam?”
Mr Ye:You know, really shocked me one time because – I don’t know what you said that day, but I remember Peter heard what you said so at the different job.
…
It’s on Morat Road. And I think, you know, Colin was saying that “Alan did certain things in a certain way that was wrong.” And Peter said, “Because he’s Chinese.” And I was quite shocked, because I would expect maybe, … you know, Lliam chooses to - say these things, but that’s up to him. But Peter said it, you know, but I always thought … I would think that his wife’s you know, have a Chinese wife, you at least say something about it. But …
Having had the benefit of hearing from Mr Mikus, I do not accept the applicant’s evidence in relation to this incident. Not only was it raised for the first time in cross examination, but I accept Mr Mikus’s denial that this ever occurred. I accept that given his own history as a migrant to this country and also as a person married to a Chinese national with whom he has children, that Mr Mikus would not tolerate the type of behaviour or comments now alleged against Mr Bertacco if he had become aware of any such behaviour.
Having regard to the totality of the evidence, I prefer the evidence of Mr Bertacco and Mr Mikus and on the balance of probabilities do not accept that Mr Mikus would have made this comment deriding someone because of their Chinese ethnicity.
(f) referring to other Asian people as ‘your mates’
Mr Bertacco denied that he said this. In the course of cross examination, the following exchange occurred:[75]
[75] Court transcript at page 102.
Mr Bertacco:    … you’re referring to other Asian people and stating to the applicant ‘your mates’?
Mr Ye:And that’s when the Chinese plasterers would come to work and you would say, “Why don’t you get a job with those guys? They’re your mates”.
Mr Bertacco:    What’s wrong with having mates? Yesterday in the court I’ve been noticing the two barristers have been using terms between them like “learned colleague”, “my friend”. They have little names for using between themselves. So what’s the difference with saying you’ve got mates?
…
Mr Ye:           You specifically refer to the Chinese people as my mates, not -
Mr Bertacco:    No I think I called other workmates, your mates.
…
Mr Ye:Not, you know if someone is from a different background like Iranian, Indian, Australian background, you never said that.
Mr Bertacco:    I disagree.
Again, for the reasons previously given, I prefer the evidence of Mr Bertacco and am not satisfied to the requisite standard that this allegation is made out.
(g) doing a knife hand strike and stating ‘hi-ya’ to imitate and mock Chinese kung fu
Mr Bertacco did not deny that he may have made a ‘hi-ya’ comment, but says that this was a reference to a character from a TV show called ‘The Muppets’, Miss Piggy, who did that move and that it was not racially based or indeed derogatory. The applicant said that Mr Bertacco never explained that this was the case to him and also gave evidence that in the four years that they worked together, Mr Bertacco only said this after he started doing karate towards the end of his time with Toto.[76]
[76] Court transcript at page 82.

Mr Bertacco gave evidence that his son did kung fu/karate and therefore questioned why he would mock this form of martial art. He did concede that he may have done a ‘hi-ya’ movement, but said that this was in reference not to Chinese kung fu, but rather to the puppet figure Miss Piggy.[77] I accept this evidence and do not find that Mr Bertacco was mocking the applicant on the grounds of his race or ethnicity or Chinese kung fu as alleged.
(h) made complaints to me about the Victorian and Australia governments’ interactions or engagements with the Chinese government
[77] Court transcript at pages 210 to 211, and 218.
When asked about this, the following exchange occurred:[78]
[78] Court transcript at page 103.
Mr Ye:So that’s shown in the picture, but it’s quite often that you would bring politics that you saw on the news to the workplace. Well, at the beginning you were complaining about the Sudanese rioting, and then you … were telling Tom, another carpenter, … how Australian Government is taking too much migrants, and there was just not enough infrastructure and housing to keep them up. And during COVID I mean, you talked a lot about the Chinese Government, you know, “Chinese people eat bats”. It’s all because of China – the China virus.
Mr Bertacco:    So I was just reiterating what was on the media?
Mr Ye:           Well you usually add an extra touch to what’s on the media.
… well you would add extra information that’s not … not actually shown on the media …
…
Mr Bertacco:    You told me you didn’t want to be in China. You wanted to be in Australia, but now you’re a China lover here today. How does that work?
Mr Ye:           … that’s not what I said. …
When asked about this in cross examination, Mr Bertacco said:[79]
… I might have mentioned something about … I watch the news. I’m of the age when I still … watch the news. So current affairs and the current events, I mention at work usually because I watch the nightly news. So if there was something Chinese-related, maybe because of COVID, I would have mentioned to Alan about it, but no I didn’t make complaints to Alan.
[79] Court transcript at page 219.
In this context, the following exchange then occurred:[80]
Counsel for Mr Ye:      … what I’m putting to you is that that extra touch that he was talking about meant that you went in hard against the Chinese government in things that you were saying. Would you agree with that?
Mr Bertacco:              I disagree.
Counsel for Mr Ye:     And you did so knowing that criticism of China may well be offensive to a person of Chinese background. What do you say to that?
Mr Bertacco:              I would say that yes, you know, offensive material against Chinese would be offensive for a Chinese person, but I did not say that.
[80] Court transcript at page 219.
I accept that Mr Bertacco may have made comments about the COVID-19 pandemic and other matters that were reported in the news and that this would have included a reference to China from time to time. However, I do not accept that this was done in a way that the applicant now seeks to suggest, namely in a derogatory manner or in a racist manner.
(i) demanded that [Mr Ye] say good morning
When this allegation was put to Mr Bertacco in cross examination, he disagreed that he did this.[81]
[81] Court transcript at page 149.
In response to a question from counsel for Toto, Mr Ye said:[82]
… So one day I walked in … and I walk towards him. I was quite happy … I said “Oh, what are we doing?” He went, “Say fucking good morning. Say fucking good morning. Say fucking good morning.” So I was a bit shocked. So … this next time, … I came to work. I said good morning to him and he turned around and said
[82] Court transcript at page 65.
“Allen, you didn’t say fucking good morning. In Australia, we say good morning. In China they say fuck you”. And then I just went “No, I was just” – I said it again and again “How many fucking times do you want me to say it?” And that’s that time.
In this context the following exchange then occurred:[83]
[83] Court transcript at page 104.
Mr Ye:Yes. I think we kind of talked about this yesterday, but when I get to work in the morning, or at the beginning, I try to say different things. You always say, “Well, why didn’t you say … say good” … it’s, you know, the voice getting high-pitched and saying “Why didn’t you say, ‘Good morning’? and I … couldn’t … understand … why you were upset. So I would try to say things like, “How are you? How are you going? How are you doing?’ They don’t seem to work. So then … I started saying, “Good morning” every day I come to work to you.
Mr Bertacco: Was that hard, saying “Good morning” was it?
Mr Ye:It was, because … you specifically wanted me to say, “Good morning”.
Mr Bertacco: And I had a high-pitched voice do I?
Mr Ye:… yes … there were times that I showed up, I say “Good morning.” You say, “Alan, you didn’t say, ‘Good morning,” so I’ve got to say it again.
Having regard to the totality of the evidence, I accept that there may have been times when Mr Bertacco did say to Mr Ye ‘say good morning’ but I do not find that this was done in the manner that Mr Ye now suggests, namely either that it was imbued with a racial overtone or that it was said to Mr Ye specifically because of his race or his ethnicity.
(j) threw material offcuts and other objects into a toilet cubicle while I was inside the cubicle
(k) attempted to lock me inside a toilet cubicle with electric wiring
When asked about these allegations, Mr Ye said that there were times when he was in the toilet cubicle on site and:
… when I’m inside the toilet, I will hear a bang, a loud sound or … maybe you were slapping with your hand
…
… slapping the metal because the toilet is made of aluminium and so it’s hollow inside …
…
there were times where … you would throw things, material off cuts, at the toilet and I went inside because I had to do my business and I was very scared of hear a loud bang … because the sound gets a lot louder when you’re inside because the structure of the toilet …
When asked about how many times this occurred, Mr Ye said about 10 times, perhaps around 2021 or 2022.[84] In relation to the allegation about being locked in with electric wiring, Mr Ye said that when he was in the toilet, he heard sounds outside.[85]
[84] Court transcript at page 105.
[85] Court transcript at page 105.
When asked about this allegation, Mr Bertacco completely disagreed with Mr Ye’s allegations in relation to the toilet incident, including that he threw things at the toilet and that he attempted to lock Mr Ye in the cubicle with electric wiring.[86]
[86] Court transcript at page 220.
In relation to this allegation, I prefer the evidence of Mr Bertacco. Again, whilst I might be prepared to accept that Mr Ye may have been in an outside toilet and heard noises whilst in there, it is not clear how he can be certain that this was caused by Mr Bertacco. In any event, I am not satisfied to the requisite standard that any such incident was in any way racially motivated.
(l) poked my behind with various objects
Again, Mr Bertacco denied this allegation.[87]
[87] Court transcript at page 218.
When asked about this claim, Mr Ye said:[88]
… I don’t remember that specific because, if I’m not wrong you might have poked me with a tape … maybe timber …
[88] Court transcript at page 106.
When asked to identify the dates on which these incidents were alleged to have occurred, Mr Ye said he was not able to do so. It was put to him that he was lying. He denied that.
Mr Ye’s evidence in relation to this particular incident was extremely sparse. I am not satisfied to the requisite standard that Mr Bertacco engaged in such conduct. Moreover, even if I were satisfied that this incident had occurred, which I am not, there is no evidence that any such incident was racially motivated.
(m) placed dead animals in front of my face
When asked about this, Mr Ye said:[89]
… when we do demolitions, … sometimes find a dead spider or dead rat. …. More common a dead rat. And you pick it up. I was behind you … you go – not just placing it, but forcing it towards my face, where I have to … I would have to go back a lot and sometimes even run away. … you would laugh and laugh and laugh.
[89] Court transcript at page 106.
Mr Bertacco denied this allegation.[90]
[90] Court transcript at page 220.
I am not satisfied to the requisite standard that Mr Bertacco engaged in such conduct. Moreover, even if I were satisfied that this incident had occurred, which I am not, there is no evidence that any such incident was racially motivated.
(n) directed a blower at my head
Again, when put to him, Mr Bertacco denied this allegation.[91]
[91] Court transcript at page 220.
Mr Ye said that when they were packing away Mr Bertacco’s tools, and either he handed the blower to Mr Bertacco or the other way around, Mr Bertacco, according to Mr Ye, would put the blower on full blast and point it at his face and laugh about it.
I am not satisfied to the requisite standard that Mr Bertacco engaged in such conduct. Moreover, even if I were satisfied that this incident had occurred, which I am not, there is no evidence that any such incident was racially motivated.
(o) jumped out of hiding to scare me
Mr Bertacco agreed that he did this on at least one occasion to Mr Mikus. He did not concede that he did this to Mr Ye. When asked about this, Mr Ye said:[92]
… the issue is, when you start doing a lot of these things, I do understand - you know jump scare, sometimes it can be taken as a joke, but I was just mentally – I was just so tired.
[92] Court transcript at page 108.
Again, I am not satisfied to the requisite standard that Mr Bertacco engaged in such conduct towards Mr Ye. Moreover, even if I were satisfied that this incident had occurred, which I am not, there is no evidence that any such incident was racially motivated.
(p) played extremely loud music near my face
In relation to this, Mr Ye said that when he passed Mr Bertacco his radio, instead of just putting it away, Mr Bertacco put it on full volume and right next to Mr Ye’s ear.[93]
[93] Court transcript at page 110.
When asked about this, Mr Bertacco denied this happened at all.[94]
[94] Court transcript at page 221.
I am not satisfied to the requisite standard that Mr Bertacco engaged in such conduct. Moreover, even if I were satisfied that this incident had occurred, which I am not, there is no evidence that any such incident was racially motivated.
(q) shone bright lights into my face
When he was asked about this, Mr Ye said:[95]
So when … I park my car down and you would park it on the opposite side, but facing me, and you would turn full high beam when I was sitting in the car, just relaxing, you know before going to work.
… instead of turning the car off, you turn it on high beam so it goes straight into my …
[95] Court transcript at page 111.
When this incident was put to Mr Bertacco in cross examination, he maintained that he had no knowledge of the incident that Mr Ye was referring to, that if he was driving his car in the dark, he had his lights on as required by law and that he did not do this intentionally to intimidate or irritate Mr Ye.[96]
[96] Court transcript at page 221.
I prefer Mr Bertacco’s evidence in this regard. Whilst I accept that it is possible that on one or more occasions, Mr Bertacco may have parked his car in such a way that his lights shone into Mr Ye’s car, I do not accept that this was in any way intentional on his part or that it was directed at Mr Ye, either specifically or because of his race.
(r) laughed at me when I tripped or hurt myself and stating ‘good trip’ and/or ‘idiot’
When asked about this, Mr Ye said:[97]
… well sometimes if I … walk if I do a small trip or whatever, you would have a really enjoyable laugh and these are the things you would say or you would say “Good job, Allen”.
[97] Court transcript at page 113.
In response, Mr Bertacco indicated that this was the type of thing that he may have said and he conceded that this is the type of thing that he says to many people.
In relation to this allegation, I accept that Mr Bertacco may have made this comment, however, this is not an inherently offensive comment, and whilst Mr Ye may not have liked it, that does not make it offensive or racially motivated.
(s) whacked my head with his hand when I made a mistake
When asked about this, Mr Ye gave a specific example (although he was unable to say when it was) when Mr Bertacco was asking him to do something and he did something wrong and Mr Bertacco flicked him on the head with his hand. Mr Ye confirmed that he did not report this alleged assault to Mr Mikus nor did he report the matter to the police. Mr Ye said that Mr Bertacco had done this on between five and ten occasions.
Mr Bertacco denies having ever done this.[98]
[98] Court transcript at page 221.
I am not satisfied to the requisite standard that Mr Bertacco engaged in such conduct. Moreover, even if I were satisfied that this incident had occurred, which I am not, there is no evidence that any such incident was racially motivated.
(t) responded ‘your face’ when asking why he was laughing
When asked about this, Mr Bertacco said he did not particularly recall this.[99] I take it from this answer that he did not categorically deny that he may not have said this.
[99] Court transcript at page 222.
In cross examination of Mr Ye on this point, Mr Bertacco asked what was particularly offensive about saying ‘your face’ in response to a question such as this. Mr Ye said that he felt that Mr Bertacco was making fun of him generally.[100]
[100] Court transcript at page 116.
Having had the opportunity to see Mr Bertacco and hear him give evidence, I find that it is possible that he did say something along these lines but did not intend it to be offensive, nor is it inherently offensive. When viewed in the context of the friendship which I find existed between Mr Bertacco and Mr Ye, which extended to them communicating and joking outside of work hours, having lunch together most days and both being involved in banter with each other, I do not find that there is anything inherently offensive about this comment or that it was in any way based on Mr Ye’s race or ethnic origin.
(u) stating to a client, that ‘he loves it’ when they raised concerns with him about his conduct towards me
The applicant’s evidence in relation to this allegation is not entirely clear. As I understood his evidence, he suggested that on one particular job in the country (although he could not recall the exact job), a customer overheard Mr Bertacco say something and queried whether Mr Ye was ‘okay or whatever’ and Mr Bertacco replied something to the effect of ‘he loves it’.[101]
[101] Court transcript at page 118.
It is difficult to make any findings about this without understanding what Mr Bertacco is alleged to have said that caused the customer to ask if Mr Ye was okay.
I am therefore not satisfied to the requisite standard that Mr Bertacco engaged in such conduct. Moreover, even if I were satisfied that this incident had occurred, which I am not, there is no evidence that any such incident was racially motivated.
(v) spat fruit seeds at me and/or into my lunch box
In response to a question about this, Mr Ye said that the fruit was mandarin.[102] Mr Bertacco put it to Mr Ye that this was a fabrication as he does not like mandarins with seeds and has a seedless mandarin tree at home which produces fruit without seeds. Mr Bertacco put it to Mr Ye that he planted this tree 25 years earlier for this very reason.[103] In response, Mr Ye said:
… But you bought your house … only a few years ago. … when we work at … three story house, when we were having lunch, there was one time where you were eating a mandarin as I was eating at lunch, and then you would try to spit into my lunchbox. And at the beginning, I was hearing sounds, you know, things hitting the table and the floor. And maybe it landed in my lunchbox, and then you start laughing.
[102] Court transcript at page 120.
[103] Court transcript at page 121.
In cross examination, Mr Bertacco denied doing this at all.[104]
[104] Court transcript at page 222.
I prefer the evidence of Mr Bertacco in this regard. But in any event, at its highest, Mr Ye’s evidence is that this occurred on one occasion. It is difficult to see how this could be seen as in any way racially based conduct or conduct directed at Mr Ye because of his race.
I therefore am not satisfied to the requisite standard that Mr Bertacco engaged in such conduct. Moreover, even if I were satisfied that this incident had occurred, which I am not, there is no evidence that any such incident was racially motivated.
(w) falsely accused and/or yelled at me for not doing any work
(x) yelled at me for being too slow to complete a task, when other employees took the same amount if not more, time than me
When asked about this, Mr Ye said:[105]
…sometimes when I did some work and … I would stand there, I would wait for you … to tell me something to do. And then you would say “don’t fucking stand there, doing fucking nothing”.
[105] Court transcript at page 119.
When asked whether he was employed to work, Mr Ye went on to say:[106]
… yes but I wasn’t – I mean, the things … you’ve always accused me of things based on your assumption. But you know, when I stood there, … I was kind of waiting for you … to tell me what to do, but I really … I really wasn’t standing. I’m sorry if you understood it wrong, but I really wasn’t there just not doing anything like you were accusing me.
[106] Court transcript at page 119.
When probed further about this, Mr Ye said that this happened more often in the first year.[107]
[107] Court transcript at page 119.
Mr Bertacco denied this allegation.[108]
[108] Court transcript at page 222.
On balance, I do not accept that Mr Bertacco would falsely accuse and/or yell at Mr Ye for not doing any work. I do accept that there may have been occasions particularly in the beginning of Mr Ye’s employment when he had finished a task and was waiting to be allocated another task and Mr Bertacco may have been a bit brusque in his manner at directing Mr Ye to find other things to do. However, having regard to the nature of the workplace, and the totality of the evidence, including that Mr Ye had no construction experience when he came to work for Toto and that Mr Bertacco effectively took him under his wing to show him the ropes, I do not accept that any such exchanges were offensive, inappropriate nor do I find that they were in any way motivated by Mr Ye’s race or ethnic origin.
Having said that, I accept that Mr Ye may have preferred a different form of communication from Mr Bertacco and/or may have been uncomfortable at receiving this feedback from Mr Bertacco.
At paragraph 8(b) of the applicant’s statement of claim, the applicant sets out a series of comments which he says Mr Bertacco made to him during his engagement with Toto. With the exception of the last comment, each of these are directed at or involve derogatory comments about Chinese people and/or Asian people more generally.
Mr Bertacco denied that he ever said:[109]
·fucking Chinese;
·there’s too many Chinese;
·Chinese people would say ‘fuck you’ Aussies say ‘good morning’;
·the dirty Chinese eat bats;
·Asian lives don’t matter;
·Asians are the most hated race;
·Chinese and Indians go home; and
·You Chinese don’t understand.
[109] Court transcript at pages 224 to 225.
I have addressed the ‘Aussies say ‘good morning’ claim above.
When asked about the allegation that Mr Bertacco said ‘Asian’s can’t drive’, Mr Ye said he could not recall the specific incidents about that.[110] In those circumstances, I am not satisfied to the requisite standard that this allegation is made out.
[110] Court transcript at page 151.

Mr Bertacco concedes that he sent the two text messages which include objectionable material referred to above, the COVID test text and the toilet text.
I further find that Mr Mikus was not aware of either of these two text exchanges. I also find that Mr Mikus was not aware of any of the concerns now raised by Mr Ye. I also accept his evidence that he would not tolerate any racially abusive communications in the workplace and that if he had been aware of any such communications, he would have taken action against the offending party.
I find that there was an altercation between Mr Bertacco and a kitchen installer but I accept Mr Bertacco’s evidence that this related to a dispute about whether Mr Bertacco had used the kitchen installer’s tools and did not in any way have a racial overtone or that racial comments were made.
In relation to the remaining allegations made by Mr Ye I make the following findings:
·I do not accept that Mr Bertacco used an exaggerated, high-pitched voice to imitate and mock the applicant, nor do I accept that Mr Bertacco mocked the way that Chinese people speak English;
·I do not accept that Mr Bertacco told Mr Ye to ‘speak English’ when he did not understand what Mr Bertacco said;
·I do not accept that Mr Bertacco referred to other Asian people as Mr Ye’s ‘mates’;
·I accept that Mr Bertacco used expletives on the worksite and that he may at times have raised his voice at Mr Ye whilst in the workplace, when they were working together;
·I accept that Mr Bertacco may have raised issues about the way in which the Chinese government was dealing with the COVID-19 pandemic, however, I accept Mr Bertacco’s evidence that this was reflective of the general discussions at the time reported on the daily news;
·I do not accept that Mr Bertacco demanded that Mr Ye say ‘good morning’ to him as alleged;
·Nor do I accept that Mr Bertacco would throw material offcuts into a toilet cubicle whilst Mr Ye was using it or that he attempted to lock Mr Ye in the toilet cubicle, that he poked the applicant with various objects or that he placed dead animals in Mr Ye’s face, or pointed a blower in his face;
·I do accept that Mr Bertacco might have jumped out from behind a wall to give Mr Ye a fright and whilst this might be said to be somewhat childish, I accept that this is something that Mr Bertacco did with others, including with Mr Mikus;
·I do not accept that Mr Bertacco played loud music near Mr Ye’s face, or that he shone his headlights into Mr Ye’s eyes, or that Mr Bertacco would hit Mr Ye in the head if he did something wrong;
·I do not accept that Mr Bertacco shone his car lights into Mr Ye’s face intentionally, although I have found that this may have occurred inadvertently as discussed earlier;
·I do not accept that Mr Bertacco said that the applicant ‘loves it’ when other people raised concerns about his conduct towards the applicant;
·I do not accept that Mr Bertacco spat fruit seeds at the applicant or into his lunch box;
·I do not accept that Mr Bertacco falsely accused the applicant of not working or yelled at him for not working;
·I do not accept that Mr Bertacco yelled at the applicant for being too slow in completing a task when other employees took as long if not longer than the applicant.
I do not find that Mr Bertacco made the comments attributed to him at paragraph 8(b) or (c), or paragraph 9 of the SoC, other than that at paragraph 8(b)(x), 8(c)(i),(ii),(iii), (vii), (viii) and (ix).
I accept on balance that Mr Bertacco made the statement attributed to him at paragraphs 10 and 18 of the SoC and that he sent the text message referenced at paragraphs 11, 14, 19 and 20 of the SoC.
In relation to the 1 March incident, I prefer the evidence of Mr Bertacco as to what occurred on that day.
I do not accept that the applicant made the statements attributed to him at paragraphs, 12, 13, 16, 17(b).
I note that the COVID test text and the toilet text were sent on 23 August 2021 and 25 August 2021 respectively. In LB-3, Mr Bertacco has annexed a number of text exchanges between himself and Mr Ye, including some after these dates. Relevantly, on 31 August 2021, shortly after these offending texts, Mr Ye sent an image with the heading ‘Thieves training at gym’ with a laughing emoji.
On 6 September 2021, Mr Ye sent Mr Bertacco a further text with what appears to be a Youtube video headed ‘Meanwhile in Russia’. This is not consistent with Mr Ye’s suggestion that the COVID test text and/or the toilet text were upsetting to him and that they made him angry.
The only other incident which Mr Ye refers to in his affidavit after this time and before the 1 March 2022 incident was the incident involving the kitchen installer and Mr Ye and the ‘trophy wife’ incident also in December 2021, both of which I have discussed earlier.
LEGISLATION
This application is brought under the RD Act.
Relevantly, s 3 of the RD Act provides:
‘employment’ includes work under a contract for services, and cognate expressions have corresponding meanings.
As stated therefore, whether Mr Ye and Mr Bertacco are employees or independent contractors is not determinative. In either case, the RD Act would apply.
SECTION 9 CLAIMS
Part II of the RD Act deals with the prohibition of racial discrimination. Section 9 which appears in Part II, relevantly provides:
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) …
(2)A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
The Convention referred to is the International Convention on the Elimination of All Forms of Racial Discrimination (‘the Convention’) which is set out in the Schedule to the RD Act. Article 5 of the Convention refers to, among other things, economic, social and cultural rights which include the ‘right to work, … to just and favourable conditions of work … to equal pay for equal work …’.
Section 18A relevantly provides:
(1) Subject to subsection (2), if:
(a)an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b)the act would be unlawful under this Part if it were done by that person;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply to an act done by an employee or agent if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
In Kaplan, Chief Justice Mortimer after setting out the terms of s 9 went on to say:
46.In Wotton v Queensland (No 5) [2016] FCA 1457 at [530] and [531] I explained my understanding of s 9, which I apply in these reasons:
“It is critical, as Allsop J observed in Baird at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of “elements”, as the respondents’ submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if “effect” is the focus; or on what was intended, in a purposive sense, to be the outcome, if “purpose” is the focus.
The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened.”
(Original emphasis.)
47.In Wotton at [545] I also made these observations which are relevant to the current proceeding and which I adopt and apply:
“Although Gageler J [in Maloney v The Queen [2013] HCA 28; 252 CLR 168] employs the language of s 10 (“to a more limited extent”) rather than the language of s 9 (“nullifying or impairing the recognition … on an equal footing”), the point is the same. The lack of dignity and respect that inheres in treating people in particular ways based on race lies in the difference between how the human rights and freedoms of those people are recognised and enjoyed and how the human rights and freedoms of people of other races are recognised and enjoyed. To answer the whole of the question posed by s 9(1), one must ask not only whether race is the reference point for the differential treatment, but also what is the nature and extent of the difference.”
48.As I explain below, even if a “comparator” is not an essential element of the statutory prohibition in s 9, that is why comparison of treatment in an evidentiary sense can be an appropriate way to ascertain what was the true basis or reason for certain treatment.
Respectfully, I adopt these principles in considering the matter before me.
Chief Justice Mortimer also said in Kaplan:
57. Putting to one side the effect on human rights for the purposes of this simplistic example, for a contravention of s 9 to be established an applicant will need to prove that the basis for either the positive conduct of charging an inflated fare involving a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin (ie the less favourable treatment), or the omission/refusal of not allowing the person to get into the car, involving a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin, was that the person was Japanese. The evidence may be circumstantial, but as the respondents submitted, in the second set of facts, at some point the Court will need to be persuaded about why the rideshare driver refused to allow the person to get into the car. That is likely to involve, as a forensic reality, some assessment by the Court of the state of mind of the actor – their attitude, their reasoning; their choices.
…
66. Provisions such as s 9 are intended to operate in the real and often messy world of human experience and human engagement. They have a critical but not complicated objective – to make unlawful (and thus discourage) the differential and negative treatment of individuals because they happen to belong to one race, or have one kind of ethnic origin, rather than another.
Racial abuse of an employee, and indeed exposure to racial slurs in the workplace, can contravene s 9 of the RD Act.[162] As stated in Qantas Airways Ltd v Gama [2008] FCAFC 69 at [76] – [78] by French and Jacobson JJ (with whom Branson J agreed on this point):
76.… Section 9 prohibits a class of acts defined by their attributes and their purpose or effect. To be unlawful under s 9 it is necessary that an act involve ‘a distinction, exclusion, restriction or preference based on race, colour, dissent (sic) or national or ethnic origin …” The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the persons race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then the linkage establishes both the distinction and its basis upon race. That was the present case.
77.The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person’s recognition, enjoyment or exercise on an equal footing of any “human right or fundamental freedom …”. The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work. The question then is whether two or three racist remarks over a period of time can have such a purpose or effect. That is a matter dependent upon the nature and circumstances of the remarks.
78.The learned magistrate having found the remarks were made, was satisfied that the making of them impaired Mr Gama’s enjoyment or exercise of his right to work and to just and favourable conditions of work which would include the right to work free of discriminatory comments from his workmates. He did not elaborate in his reasons the way in which these particular incidents could have had that effect. Undoubtedly remarks which are calculated to humiliate or demean an employee by reference to race, colour, descent or national or ethnic origin, are capable of having a very damaging impact on that person’s perception of how he or she is regarded by fellow employees and his or her superiors. They may even affect their sense of self worth and thereby appreciably disadvantage them in their conditions of work. Much will depend upon the nature and circumstances of the remark. Occasional politically incorrect banter will be unlikely to have the requisite purpose or effect. The judgement is a matter of fact. … (emphasis added)
[162] Murugesu v Australia Postal Corporation [2015] FCCA 2852 (‘Murugesu’).
As noted by Judge Burchardt in Murugesu, ‘the right to just and favourable conditions of work … obviously includes a right to work in an environment free of racist insult’.[163] However, ultimately, the question is one to be determined by reference to the facts in each particular case.
[163] Murugesu at [246].
Whilst I have found that Mr Bertacco sent the COVID test text message, I am not satisfied that that is a text message constitutes a breach of s 9 of the RD Act. It is apparent from the text exchange that Mr Bertacco and Mr Ye were having a conversation or conversations about the COVID-19 pandemic and China’s response to it. So much is clear from Mr Ye’s reply ‘Jobs are more important’. In this context and having regard to the article which Mr Bertacco sent Mr Ye, the comment ‘China lies’ is a comment about how the Chinese government was responding to the challenges it faced in the pandemic. I make no comment about the validity or otherwise of Mr Bertacco’s views, but it is not, in my view a comment that could be said to breach s 9(1). If this interpretation were upheld, it would silence discussions about political actions taken by governments around the world. The comment ‘China lies’, when read in context in that text message did not have the purpose or effect of nullifying or impairing a person’s recognition, enjoyment or exercise on an equal footing of any ‘human right or fundamental freedom …’.
As stated earlier, it is a political observation about a country’s response to a worldwide pandemic. As I said earlier, I make no comment about the correctness or otherwise of that observation. In the context of a friendship in which many things were discussed, including political issues, making this observation of itself, did not have the effect of ‘nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.’
In relation to the COVID test text and the toilet text, I have found that Mr Bertacco did send those two text messages which were, on their face, derogatory of Asian people. The first that an Asian person providing a negative COVID test could not be trusted and the second that Asian people using toilets on a work site leave a mess. As I say on their face both of these are offensive. However, when regard is had to the context, first the fact that neither appears to have been directed at Mr Ye, and more importantly, the friendship between Mr Ye and Mr Bertacco and the nature of the communications between them including from Mr Ye himself, these two messages do not in my view have the requisite purpose or effect to amount to a breach of s9(1) of the RD Act.
For these reasons, I find that the applicant has not made out the claim under s 9(1).
It is therefore not necessary for me to consider the consequential claim under s 18A in respect of those aspects of the application.
Underpayment claim
Mr Ye also claims that he was paid a lower rate of pay compared to Caucasian employees.
In this regard, I accept the evidence given by Mr Mikus that the rate of pay for Mr Ye was calculated based on his experience, or lack thereof and the fact that he did not own any tools. I accept Mr Mikus’ evidence that workers who provide and use their own tools, particularly power tools, command a higher rate of pay because of the wear and tear on their tools which require replacement from time to time.
Similarly, I accept that there was a situation in the course of Mr Ye’s engagement where Toto engaged a worker who was paid a significantly higher rate of pay. Again, I accept Mr Mikus’ evidence in relation to this and in particular, that he was prepared to pay a much higher rate than he would ordinarily have paid, because of the pressure to complete a particular project and the lack of workers available at the time.
In coming to this view, I have also had regard to the fact that when Mr Bertacco organised for Mr Ye to come back and work with Toto the second time, he was able to negotiate an increase in his rate of pay by reference to the fact that Mr Ye had now had at least some experience in the construction industry.
The applicant has therefore not established a breach of the RD Act in respect of his rate of pay.
SECTION 18C CLAIM
Part IIA deals with a prohibition of offensive behaviour based on racial hatred. Sections 18B to 18F appear in Part IIA. Section 18B makes it clear that if an act is done for two or more reasons, and one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purposes of Part IIA of the RD Act, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
Section 18C relevantly provides:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a)the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b)the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2)For the purposes of subsection (1), an act is taken not to be done in private if it:
(a)causes words, sounds, images or writing to be communicated to the public; or
(b)is done in a public place; or
(c)is done in the sight or hearing of people who are in a public place.
(3) In this section:
“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

Section 18E deals with vicarious liability for actions under Part IIA and relevantly provides:
(1) Subject to subsection (2), if:
(a)an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b)the act would be unlawful under this Part if it were done by the person;
this Act applies in relation to the person had also done the act.
(2)Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
Based on the factual findings that I have made, none of the conduct which I have found to have occurred, occurred in public. Therefore the claim under section 18C is not made out.
I have found that Mr Bertacco has referred to the applicant as ‘gay’ ‘fuckwit’ ‘gay boy’ and possibly ‘dick head’. For the reasons set out earlier however, I have not found that any of these acts or comments were made because of Mr Ye’s race, colour or national or ethnic origin. As such it is not necessary for me to consider whether any of these comments were made in ‘public’.
To the extent that the ‘China lies’, COVID test text and the toilet text messages could be said to have been made because of the race of either Mr Ye or other people to whom the messages refer who are of the Chinese race, nationality or ethnic origin, those comments were made in a private communication between Mr Ye and Mr Bertacco and therefore were not made in public.
For each of these reasons, s 18C is not engaged or made out in relation to any of the claims that I have found occurred.
Constructive Dismissal claim
As noted the applicant’s constructive dismissal claim was withdrawn.
CONCLUSION
Having regard to these findings, I therefore order that the applicant’s claim be dismissed.

I certify that the preceding two hundred and ninety-three (293) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.
Associate:
Dated: 21 May 2025

File number:	MLG 304 of 2024
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	21 May 2025
Catchwords:	HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed.
Legislation:	Racial Discrimination Act 1975 (Cth), ss 3, 9, 18A, 18C
Cases cited:	Kaplan v State of Victoria (No 8) [2023] FCA 1092 Murugesu v Australia Postal Corporation [2015] FCCA 2852 Qantas Airways Ltd v Gama [2008] FCAFC 69
Division:	Division 2 General Federal Law
Number of paragraphs:	293
Date of last submissions:	8 November 2024
Date of hearing:	6-8 November 2024
Place:	Melbourne
Counsel for the Applicant:	Mr R Miller
Solicitor for the Applicant:	Jewell Hancock Employment Lawyers
Counsel for the First Respondent:	The first respondent appeared in person
Counsel for the Second Respondent:	Mr G Jegatheesan
Solicitor for the Second Respondent:	Wonders Legal

MLG 304 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	YIAN YE Applicant
AND:	LLIAM BERTACCO First Respondent TOTO PROPERTIES PTY LTD Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	21 MAY 2025