Zeng v Yoho Interiors Pty Ltd
[2022] FedCFamC2G 113
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zeng v YOHO Interiors Pty Ltd [2022] FedCFamC2G 113
File number: SYG 1922 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 8 February 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – Alleged breaches of Fair Work Act 2009 and a modern award – minimum wage – overtime – annual leave – superannuation contributions – tool allowance – partnership not employment. Legislation: Fair Work Act 2009 (Cth), ss.44, 45, 87, 90, 117, 323, 535, 536, 545, 547, 550
Fair Work Regulations 2009 (Cth)Division: Fair Work Division Number of paragraphs: 67 Date of hearing: 7-8 February 2022 Place: Sydney Solicitor for the Applicant: Mr J. Wang (Broaden Legal) Counsel for the Respondents: The Respondents appeared in person ORDERS
SYG 1922 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZHANFENG ZENG
Applicant
AND: YOHO INTERIORS PTY LTD ACN 635 855 588
First Respondent
KIT WA YEUNG
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
8 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The 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
JUDGE CAMERON
INTRODUCTION
The applicant, Zhanfeng “Ian” Zeng, filed an application and statement of claim on 13 August 2020 and subsequently an amended statement of claim in which he alleged that the first respondent, YOHO Interiors Pty Ltd (“YOHO Interiors”) had not complied with the Joinery and Building Trades Award 2010 (“Award”) by failing to make superannuation contributions for him and by failing to pay his minimum wages for ordinary hours of work, overtime payments and tool allowances. He also alleged that that YOHO Interiors had contravened the Fair Work Act 2009 (Cth) (“FW Act”) by failing to pay his entitlements in full, by failing to pay him his annual leave entitlement, by failing to provide notice of termination or payment in lieu of notice, and by failing to keep records and issue payslips.
Mr Zeng alleged that under s.550 of the FW Act, the second respondent, Kit Wa Yeung, owner of YOHO Interiors, was liable as an accessory for those contraventions on the basis that he knew Mr Zeng was covered by the Award and was aware of the facts giving rise to YOHO Interiors’ contraventions.
Mr Zeng also alleged that the pleaded contraventions entitled him to seek compensation under the FW Act.
APPLICANT’S PLEADINGS
Employment arrangement
Mr Zeng alleged that between 29 August 2019 and 16 April 2020, a 33-week period, he was employed by YOHO Interiors on a full-time basis as a plasterer, painter and general shop fitting tradesman.
Breach of industrial instruments
Mr Zeng alleged that his employment had, at all material times, been governed by the Award under the level 2 tradesman classification. Mr Zeng alleged, therefore, that pursuant to cl.6 of the Award, the National Employment Standards and the Award contained the minimum conditions for his employment.
Wages for hourly work
Mr Zeng alleged that cl.18.1 of the Award provided him an entitlement to:
(a)a minimum weekly wage of $762.10;
(b)a minimum hourly wage of $20.60; and
(c)a minimum base wage for the 33-week period of his employment of $25,149.30.
With respect to those minimum requirements, Mr Zeng alleged that:
(a)he had received $8,000 in wages from YOHO Interiors for the 33-week employment period, which was equivalent to a weekly wage of $242.42 or an hourly wage of $6.38;
(b)those wages fell substantially short of the minimum wage required by the Award; and
(c)by reason of its failure to pay him in full the minimum wages required by the Award, YOHO Interiors had contravened cl.18.1 of the Award.
Overtime wages for weekend work
Mr Zeng alleged that cl.30.6 of the Award provided that:
(d)overtime work by an employee on a Saturday must be paid at a rate of 150% for the first two hours and 200% thereafter; and that all overtime work by an employee after 12 noon on a Saturday must be paid at the rate of 200%; and
(e)overtime work by an employee on a Sunday must be paid at the rate of 200%.
With respect to those minimum requirements, Mr Zeng alleged that:
(a)regarding cl.30.6(a):
(i)he had worked at least 120 hours during Saturdays, 20 of which were before 12 noon and the balance after 12 noon;
(ii)he was entitled to a payment of $5,221 for hours worked on Saturdays; and
(iii)by reason of failure to pay him such overtime for weekend work on Saturdays, YOHO Interiors had contravened cl.30.6(a) of the Award.
(b)regarding cl.30.6(b):
(i)he had worked at least 88 hours on Sundays;
(ii)he was entitled to payment of $3,995.20 for hours worked on Sundays; and
(iii)by reason of failure to pay him such overtime for weekend work on Sundays, YOHO Interiors had contravened cl.30.6(b) of the Award.
Tool allowance
Mr Zeng alleged that cl.24.1(c)(i) of the Award provided that an employee must be paid allowances for supplying and maintaining tools. Mr Zeng alleged that:
(a)YOHO Interiors never provided him with the tools reasonably required to perform all the functions of his employment;
(b)therefore, in respect of his 33 weeks of his employment, he was entitled to tool allowances of:
(i)$254.43 for performing his duties as a painter;
(ii)$876.15 for performing his duties as a plasterer; and
(iii)$1,059.63 for performing his duties as a shopfitter; and
(c)by reason of its failure to pay him the applicable tool allowances, YOHO Interiors had contravened cl.24.1(c)(i) of the Award.
Superannuation contributions
Mr Zeng alleged that, pursuant to cls.27.1 and 27.2 of the Award, an employer must make such contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge. In view of that minimum requirement, Mr Zeng alleged that:
(a)he had been entitled to superannuation contributions totalling $3,264.72;
(b)YOHO Interiors had never made any superannuation contributions on his behalf, equal to 9.5% of his ordinary time earnings; and
(c)YOHO Interiors thereby contravened cl.27.2 of the Award.
Statutory Contraventions
Contravention of Award terms
Mr Zeng alleged that YOHO Interiors’ contraventions of various terms of the Award, namely, cls.30.6(a), 30.6(b), 24.1(c)(i), 27.2 and 32.2 were also contraventions of s.45 of the FW Act or, in the case of its contravention of cl.18.1, a contravention of s.323 of the FW Act.
Contravention – failure to pay amounts payable to employee in full
Mr Zeng alleged that by reason of its failure to pay him his:
(a)minimum wages;
(b)overtime ladings; and
(c)tool allowances
YOHO Interiors had failed to pay him the amounts payable in relation to the payment of work in full and, in the circumstances, had contravened s.323(1) of the FW Act.
Contravention – failure to pay annual leave entitlements
Mr Zeng alleged that, pursuant to ss.87(1)(a) and 87(2) of the FW Act, an employee is entitled to 4 weeks of paid annual leave which entitlement accrues progressively during a year of service. Mr Zeng further alleged that pursuant to s.90 of the FW Act, on termination an employer must pay an employee the amount of any untaken paid annual leave.
Mr Zeng alleged that he had accrued 2.5 weeks of annual leave and, as he had not taken any annual leave, upon termination he was entitled to be paid an amount equal to 2.5 weeks leave plus 17.5% loading pursuant to cl.32.3 of the Award, being $2,238.67.
Mr Zeng alleged that YOHO Interiors failed to pay him any annual leave entitlement upon termination of his employment and so contravened ss.45 and 90 of the FW Act. Mr Zeng further alleged that, upon contravention of s.90 of the FW Act, YOHO Interiors also contravened s.44 of the FW Act.
Contravention – failure to provide notice of termination or payment in lieu of notice
Mr Zeng alleged that pursuant to s.117 of the FW Act, he was entitled on dismissal to one week’s notice of termination or payment in lieu of notice.
Mr Zeng alleged he was terminated without notice and that YOHO Interiors failed to make payment in lieu of notice thereby contravening s.117 of the FW Act.
Contravention – failure to keep record and issue payslips
Mr Zeng alleged that pursuant to s.535(1) of the FW Act, YOHO Interiors was required to make and keep employee records of the kind prescribed by the Fair Work Regulations 2009 (Cth) and that pursuant to s.536(1) of the FW Act, YOHO Interiors was required to issue payslips to employees.
Mr Zeng alleged that in about April 2020, he asked the respondents to produce such records and payslips but they failed to produce any and that, therefore, YOHO Interiors contravened ss.535 and 536 of the FW Act.
Accessorial liability of the second respondent
Mr Zeng alleged that Mr Yeung knew that:
(a)at all material times, the Award applied to the industry in which YOHO Interiors was engaged and that he was covered by the Award;
(b)YOHO Interiors did not pay him his minimum wages for ordinary hours of work in full, in accordance with the Award;
(c)YOHO Interiors did not pay him overtime in accordance with the Award for work he performed on weekends;
(d)YOHO Interiors did not pay him a tool allowance in accordance with the Award;
(e)no payslip was issued to him; and
(f)no proper records were made and kept pursuant to s.535 of the FW Act.
Mr Zeng further alleged that Mr Yeung was solely responsible for deciding and/or implementing the decisions manifested in that contravening conduct of YOHO Interiors.
Mr Zeng alleged that, in the circumstances, Mr Yeung:
(a)had knowledge of the conduct that resulted in the contraventions of the Award and of ss.45, 117, 535 and 536 of the FW Act;
(b)engaged in conduct that assisted and/or encouraged and/or otherwise brought about those contraventions; and
(c)was, in the circumstances, an intentional participant in the conduct that resulted in those contraventions
and had therefore aided and abetted, counselled or procured or was otherwise knowingly concerned in all such contraventions of the FW Act and that, for the purposes of s.550 of the FW Act, is taken to have contravened s.45 of the FW Act in the respects set out earlier.
Relief Sought
Mr Zeng sought declarations that:
(a)YOHO Interiors had contravened s.45 of the FW Act by:
(i)failing to pay him minimum wages in accordance with cl.18.1 of the Award;
(ii)failing to pay him in accordance with cl.30.6 of the Award for overtime or weekend overtime work; and
(iii)failing to pay him tool allowances in accordance with cl.24.1(c)(i) of the Award;
(b)YOHO Interiors had contravened s.44 of the FW Act by contravening s.90 of the FW Act by failing to pay him his annual leave entitlement;
(c)YOHO Interiors had contravened s.117 of the FW Act by failing to make payment in lieu of notice;
(d)YOHO Interiors had contravened ss.535 and 536 of the FW Act by failing to make and keep records and issue payslips; and
(e)for the purposes of s.550 of the FW Act, Mr Yeung was involved in YOHO Interiors’ contraventions to which reference has just been made.
Mr Zeng also sought, pursuant to s.545(2) of the FW Act, pecuniary compensation for the losses he suffered because of the respondents’ contraventions of the FW Act, plus interest pursuant to s.547 of the FW Act. Mr Zeng specifically sought orders that the respondents make superannuation contributions to a superannuation fund to be nominated by him.
Mr Zeng also sought the imposition of pecuniary penalties on the respondents for the contraventions of civil remedy provisions of the FW Act.
RESPONDENTS PLEADINGS
The respondents pleaded that Mr Zeng had never been employed by YOHO Interiors at any time and that Mr Yeung had never been responsible for:
(a)the terms and conditions of Mr Zeng’s employment;
(b)times and occasions of Mr Zeng’s work;
(c)the remuneration and other amounts paid to Mr Zeng, if any.
The respondents allege that Mr Zeng and Mr Yeung performed gyprock work side-by-side for cash, with Mr Zeng dictating which jobs they would go to and how much they would charge. They further alleged that in February 2020, Mr Zeng sought a partnership arrangement with them which was rejected.
The respondents pleaded that the Award did not apply to Mr Zeng as any payment received from the respondents was for odd jobs and not wages. The respondents also pleaded that, as Mr Zeng was not an employee, he was not entitled to weekend award rates, tool allowances, superannuation and annual leave.
The respondents also alleged that because Mr Zeng was not an employee, there was no contract to terminate nor any record of employment or payslips.
APPLICANT’S EVIDENCE
Mr Zeng deposed that he came to Australia in 2015 on a visitor visa. He had previously worked in banking in China and intended to apply for a work visa, however was defrauded by an immigration agent. Mr Zeng deposed that his visa expired in July 2015 at which point he had almost no savings.
Mr Zeng deposed that for an income, he began to work as a casual plasterer doing very basic tasks. He deposed that between 2016 and 2018, he worked for both ‘Oasis Interiors’ and ‘TD Shop Fitting’ and was variously responsible for plastering, joinery work and shop fitting and, because his English skills were sufficient, he was responsible for liaising with clients and suppliers.
Mr Zeng deposed that he met Mr Yeung as a colleague at Oasis Interiors. Mr Yeung was the ‘master worker’. Mr Zeng deposed that, because they worked in the same team and were of similar age and cultural backgrounds, they spoke frequently. He deposed that they spoke of his lack of a visa and of his difficulties in gaining employment. He deposed that Mr Yeung told him that he had originally come to Australia under a working holiday visa and had remained in Australia as the partner of his girlfriend, who was at the time in Australia on a student visa.
Mr Zeng deposed that on or about 10 August 2019, he and Mr Yeung were working for Oasis Interiors, when Mr Yeung suggested a business venture. He deposed that they said:
Mr Yeung:… I have been here in Australia for 5 years. I know how to run a company. And you’re a good worker with good English. -You know things in home renovation and shop fitting, and you have some clients. We can make money together.
Mr Zeng:Good, but do you mean we set up a company together and we share profit?
Mr Yeung:I am thinking that it will be me who will set up a company. Of course, that doesn't mean the company does not belong to you. …
Mr Zeng deposed that on 20 August 2019, they had a further conversation in which Mr Yeung stated that Mr Zeng’s lack of a visa might cause problems for the company which he wished to avoid. Mr Yeung proposed to Mr Zheng:
… I set up a company. But off the company record, you are still my partner, and you can say to everyone that you are a director or partner. You will be paid wages every month. Of course, I will let you share half of the company’s profits, say, every half year. An accountant can organise this.
Mr Zeng deposed that Mr Yeung suggested a wage of $16 an hour plus half of the company’s profit.
Mr Zeng deposed that after this arrangement was agreed, he and Mr Yeung attended multiple meetings with accountants for advice in relation to setting up a company, insurance, tax and employees and that YOHO Interiors was thereafter incorporated on 29 August 2019. Mr Zeng deposed that, from 29 August 2019 until 19 April 2020, he was employed exclusively by YOHO Interiors. He deposed that he set up the company email address and also the company’s website which listed his name and mobile phone number as contact details for potential customers needing quotations. He deposed that only he and Mr Yeung had access to the YOHO email account.
Mr Zeng deposed that his work hours were normally between 7:00am and 4:00pm and that, on the days he did not work on site, he was directed by Mr Yeung to do design work, attend to customer inquiries and to stand by for any work that came up.
Mr Zeng deposed that their client base comprised referrals from his friends and previous colleagues and people who found their website via Google Search or were previous clients of Mr Yeung. Mr Zeng deposed that throughout the course of what he described as his employment, when meeting customers he would introduce himself as “Ian from YOHO Interiors” and would hand customers business cards given to him by Mr Yeung which listed his, Mr Zeng’s, name, contact details and the YOHO Interiors logo.
Mr Zeng deposed that, on Mr Yeung’s instructions, he set up an account for YOHO on Hipages in January 2020. He was also instructed to leave only his contact number on Hipages as his English skills were better than Mr Yeung’s. He responded to customers’ requests and inquiries on behalf of the respondents.
Mr Zeng deposed that Mr Yeung would prepare client invoices and would sometimes ask him if he had prepared a draft. He deposed that Mr Yeung would send the invoices by email to the customers. Mr Zeng deposed that he had had no access to the YOHO bank account, had not viewed any of its financial information and overall was not involved in any financial aspect of YOHO Interiors. He also did not know how cash payments were treated. Mr Zeng’s affidavit of 11 March 2021 detailed his recollection of all the jobs he undertook for YOHO Interiors with exhibits and exhibited photos of the jobs.
Mr Zeng deposed that, during his employment, his work activities were managed by the respondents by Mr Yeung; instructing him to work; requiring notification when customers had accepted a quotation; providing approval for quotations for work exceeding $3,000; attending on the last day of a job and conducting final inspections; collecting cash if a customer paid in cash; directing him to report progress of work; issuing the business’s invoices; and directing him to do design work, attend to customers’ inquiries and be on standby.
Mr Zeng deposed that, during his employment period, the respondents only paid him six times in a total amount of $8,000 and all in cash.
Mr Zeng deposed that on multiple occasions between February and April 2020 he complained to Mr Yeung regarding the shortfall of payment for the agreed amount of wages and dividends. He deposed that on 14 April 2020 he requested his employee records and in response Mr Yeung said “I don’t keep records.”
Mr Zeng deposed that on 19 April 2020, Mr Yeung told him not to come back to work and terminated his employment with YOHO Interiors. Mr Zeng deposed that on 28 April 2020, he again requested payment of his wages and that Mr Yeung refused his request.
RESPONDENT’S EVIDENCE
In his affidavit filed 29 September 2020, Mr Yeung deposed that YOHO Interiors had never employed Mr Zeng and that, as director of the company, had never treated or viewed Mr Zeng as an employee of the company.
In a statement to police dated 28 April 2020 annexed to his affidavit of 24 September 2020, Mr Yeung is recorded as having said, “I employed Ian Zeng as a casual worker for my business.” Mr Yeung’s oral evidence was that the interpreter who assisted him during his police interview had mistranslated what he had said, and that the Cantonese word that he had used did not necessarily translate as hired or, more accurately, employed. In his oral evidence, Mr Yeung had referred to the word “hired” rather than the word actually used in the police statement, namely, “employed”.
Mr Yeung deposed that he and Mr Zeng met while working for Oasis. Mr Yeung deposed that they were teamed together because Mr Zeng speaks vocational English and fluent Cantonese, which is Mr Yeung’s mother tongue, and therefore could help his communication with other tradesmen. Mr Yeung deposed that during this time they became very good friends due to common interests.
Mr Yeung deposed that they discussed their respective visa statuses and that he told Mr Zeng his visa status was as partner of a student and he was only allowed to work 20 hours per week. Mr Yeung deposed that Mr Zeng told him he was on a student visa and did not recall discussing the topic further. Mr Yeung deposed that Mr Zeng had kept his true visa status a secret.
Mr Yeung deposed that he wished to earn more money but was limited by the 20-hour work hours cap imposed by his visa and master contractors did not like work with him because of such limitations. Mr Yeung deposed that Mr Zeng told him that he could work longer hours and deal with the 20-hour cap by using accounting methods, namely, by starting his own company to provide an ABN to master contractors.
Mr Yeung deposed that, after some time, when their livelihoods were at risk because of a reduction in work, Mr Zeng “initiated action” and the two of them visited accountants together. Mr Yeung deposed that Mr Zeng asked a lot of questions at the accountants’ offices and was “hyper”; in the meantime, he himself was “sceptical” and was very sure that they did not get any real answers. Mr Yeung deposed that they did not discuss any specific details and the discussions were quite general. Mr Yeung deposed that he decided to “go along” with it because he felt that Mr Zeng would have a better understanding of life in Australia. Mr Yeung deposed he chose an accounting firm to set up the company and that he provided them with the required information.
Mr Yeung deposed that, since the incorporation of YOHO Interiors, Mr Zeng acted as a friend, helping with “free will”. He deposed that because Mr Zeng was happy for him, he offered a lot of help, including setting up company material like logos, business cards, quotation and invoicing templates, website design and email setup and offering assistance with English communication in a fashion similar to when the two had worked on other construction sites.
Mr Yeung deposed that Mr Zeng handled his, Mr Yeung’s, money to pay for setting up the company, for the printing costs and some miscellaneous items. Mr Yeung deposed that when he asked Mr Zeng how he could thank him, Mr Zeng replied, “We don’t talk about money between brothers” and “Just don’t forget about me when you become a millionaire.” Mr Yeung deposed that the assistance provided by Mr Zeng was merely in good faith as a friend and that there was never any discussion of partnership or employment of him by the company.
Mr Yeung deposed that Mr Zeng put his name on the company website as a contact because he was a good friend and the only one of the two who spoke any English. Mr Yeung deposed that Mr Zeng was very excited and made business cards for himself. Mr Zeng claimed he could speak to all the industry connections he had on Mr Yeung’s behalf and the cards were necessary for master contractors to remember them. Mr Yeung deposed that, although he had explained to Mr Zeng that he really didn’t need business cards, he felt that Mr Zeng getting one was a small token to pay to keep him happy as he had done a lot for Mr Yeung without wanting anything in return. Mr Yeung deposed that at the time he did not know the details of the business cards.
Mr Yeung deposed that, from his connections, Mr Zeng quickly found a couple of jobs for the company which he indicated were gifts for Mr Yeung’s newborn business. Mr Yeung deposed that payment from these two jobs was very slow and eventually they became bad debts. Mr Yeung deposed that Mr Zeng was always the sole contact with clients whenever payments were hard to retrieve. It appears that he developed concerns that Mr Zeng may have been taking cash payments for jobs and not telling him. Mr Yeung deposed that it was only at a later stage that he participated more with initial inspections for jobs and to make sure clients were aware that he was the owner and happy to receive payments by bank transfer.
Mr Yeung deposed that Mr Zeng began to insist on using the company to deal with very small jobs from other master contractors that did not require an ABN. Mr Yeung deposed that he came to understand Mr Zeng was making arrangements that damaged his relationship with his industry connections.
Mr Yeung deposed that, in desperation to find more jobs, Mr Zeng introduced him to the Hipages app. Mr Yeung deposed that the Hipages app worked by deducting money from the YOHO Interiors account each time they opened a job listing, despite no guarantee of getting the job. Mr Yeung deposed that, after opening the Hipages account, Mr Zeng lost interest in working as a labourer and would travel around to quote jobs he found on Hipages and either allocated them to Mr Yeung as YOHO Interiors, or sold them as master contractor to other workers in the industry. Mr Yeung deposed that Mr Zeng had another form of business where he would negotiate cash deals for private property upgrade jobs, and would then act as the “owner” of the work site and instruct Mr Yeung or other labourers to work for him. Mr Yeung deposed that, in this manner, cash was flowing backwards and forwards between him and Mr Zeng.
Mr Yeung deposed that, in April 2020, he and Mr Zeng had some issues regarding payments leading to the break-up of their relationship. He deposed that Mr Zeng made threats as to what would happen if he was not treated as a partner of the company and claimed that he owned a share of the profits. Mr Yeung deposed that Mr Zeng had never been given a contract or engaged as an employee. He also deposed that occasional engagements with an agreed daily cash value could be described, at best, as labour contracting. Mr Yeung deposed that he paid Mr Zeng $40 an hour as a casual.
CONSIDERATION
I have read the parties’ affidavits and seen and heard them via video-link; however, it is the facts as they emerge from the evidence as a whole, rather than the demeanour and presentation of the witnesses that have determined the outcome of this proceeding.
In a nutshell, Mr Zeng said that:
(a)following his discussions with Mr Yeung, he had suggested they go to an accountant to establish a company;
(b)Mr Yeung said to him that because he, Mr Zeng, did not have a valid visa, a fact that might cause difficulties for the company, he would be the company’s owner; that Mr Zeng would be his partner, would be given a monthly payment which was called wages and would be given a share of the semi-annual profits;
(c)the arrangement was that they each had clients they could share;
(d)he, Mr Zeng, would do some of the management;
(e)he was to find new clients;
(f)he registered the company’s domain name;
(g)he created the company’s website;
(h)his name was used as a contact for new business;
(i)he set up the Hipages account and gave his number as the contact number;
(j)he registered the company’s email address;
(k)he would prepare quotations for Mr Yeung’s approval;
(l)he worked on site as well as doing design and marketing work; and
(m)Mr Yeung sent the invoices and controlled the receipts.
For his part, Mr Yeung said that Mr Zeng:
(a)had convinced him to start the company and then helped him to set it up;
(b)put his name on the website as the point of contact;
(c)made himself business cards; and
(d)found jobs for the company and organised the Hipages subscription.
He said that apart from some casual work, presumably as a plasterer, Mr Zeng did everything as a friend.
At some point the relationship broke down, it seems over money. Mr Zeng says that he had worked hard for the company and, in early 2020, he sought payment additional to the $8,000 he says he had already received. Mr Yeung expressed concern in his evidence that Mr Zeng had been siphoning off work and possibly cash payments. He made sure that clients knew he was happy to receive payment by bank transfer. This distrust and disagreement led to the situation where, in April 2020, Mr Zeng dropped a load of building waste at Mr Yeung’s home which in turn led Mr Yeung to seek an apprehended violence order against Mr Zeng.
I find that:
(a)Mr Zeng and Mr Yeung had worked together as employed plasterers and decided to team up and establish their own operation;
(b)YOHO Interiors was incorporated because it was convenient for Mr Yeung, possibly because he could use it to obscure the fact that on occasion he may have worked more hours than his visa permitted;
(c)the men agreed that Mr Zeng’s visa status effectively prevented him from being a company member or officer;
(d)the two men worked together to create the business;
(e)they fell out over a lack of transparency in work allocation and in the business’s finances; and
(f)until the falling out, the two men had operated as an informal partnership, Mr Zeng on the one hand and Mr Yeung and YOHO Interiors on the other. I find that Mr Zeng’s claim to a share in the company and its profits is a reflection of the joint creation and operation of the business.
The evidence points to a co-operative and shared business relationship, not one of employer and employee. I do not accept that Mr Zeng devoted the time and effort to the establishment and operation of the business, which he plainly did devote, just out of good will. I find that it was in furtherance of a joint business ambition. I appreciate that Mr Zeng said that the relationship developed to one of employment, but it plainly was not that at the commencement, and he did not identify when the supposed change occurred or how it was manifested.
As to Mr Yeung’s evidence concerning his statement to police in support of his apprehended violence order application, I have some difficulty reconciling his submissions to the Court this morning in relation to the words “hired” and/or “employed”. I find it difficult to assess that evidence but, as it involves questions of nuance in translation, I place no weight on my concerns regarding the evidence and in light of the other findings I have made, I place no particular weight on the use of the word “employed” in the police statement.
These findings have the consequence that, although I reject Mr Yeung’s allegations that Mr Zeng was a minor player in the business and entitled to nothing more than occasional payment as a casual employee, the reason I do so is not because I accept Mr Zeng’s characterisation of the relationship but because the evidence before the Court indicates a business relationship of informal partners, not one of employer and employee. In the circumstances, I find that the allegation that Mr Zeng was employed by YOHO Interiors is not made out.
Consequently, the application will be dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 23 February 2022
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