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 69Division: 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…
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- Case
- [2025] FedCFamC2G 714
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CaseChat Overview and Summary
Ye v Bertacco concerns an application by Mr Ye alleging unlawful discrimination in breach of the Racial Discrimination Act 1975 (Cth). Mr Ye claims that Mr Bertacco, who was employed by Toto Properties Pty Ltd, discriminated against him on the basis of race during his employment. Mr Ye further alleges that Toto Properties Pty Ltd is vicariously liable for the discrimination. Additionally, Mr Ye claims that Toto Properties Pty Ltd independently discriminated against him by underpaying his wages. The court had to determine whether the alleged conduct constituted unlawful discrimination under sections 9 and 18C of the Racial Discrimination Act 1975 (Cth), and whether Toto Properties Pty Ltd was vicariously liable for the actions of Mr Bertacco.
The court examined the evidence presented by Mr Ye and the respondents, Mr Bertacco and Mr Mikus, who are associated with Toto Properties Pty Ltd. The court found that the evidence of Mr Bertacco and Mr Mikus was more credible than that of Mr Ye. The court assessed whether the alleged conduct by Mr Bertacco towards Mr Ye, including racial taunts and slurs, occurred and if it breached section 9 of the Racial Discrimination Act 1975 (Cth). The court also considered whether any of the alleged conduct was made otherwise than in private, as required by section 18C of the Act. The court concluded that the conduct did not breach sections 9 and 18C of the Racial Discrimination Act 1975 (Cth).
Based on its findings, the court dismissed Mr Ye's application for damages, declarations, and an apology. The court determined that the evidence did not support a finding that the conduct by Mr Bertacco amounted to unlawful discrimination or that Toto Properties Pty Ltd was vicariously liable for such discrimination. The court also found that there was no evidence to support the claim of underpayment of wages. Consequently, the application was dismissed in its entirety.
The court examined the evidence presented by Mr Ye and the respondents, Mr Bertacco and Mr Mikus, who are associated with Toto Properties Pty Ltd. The court found that the evidence of Mr Bertacco and Mr Mikus was more credible than that of Mr Ye. The court assessed whether the alleged conduct by Mr Bertacco towards Mr Ye, including racial taunts and slurs, occurred and if it breached section 9 of the Racial Discrimination Act 1975 (Cth). The court also considered whether any of the alleged conduct was made otherwise than in private, as required by section 18C of the Act. The court concluded that the conduct did not breach sections 9 and 18C of the Racial Discrimination Act 1975 (Cth).
Based on its findings, the court dismissed Mr Ye's application for damages, declarations, and an apology. The court determined that the evidence did not support a finding that the conduct by Mr Bertacco amounted to unlawful discrimination or that Toto Properties Pty Ltd was vicariously liable for such discrimination. The court also found that there was no evidence to support the claim of underpayment of wages. Consequently, the application was dismissed in its entirety.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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