FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Maclean Bay Pty Ltd [2012] FCA 10
| IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
| AND: | MACLEAN BAY PTY LTD (ACN 106 012 748) First Respondent WENDY ANN WELLS Second Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. Pursuant to s 904(2B) of the Workplace Relations Act 1996 (Cth) (“the WR Act”), the first respondent pay Mrs Sharon Williams the sum of $4,815.50.
2. Pursuant to s 904(2B)(b) of the WR Act, the first respondent pay Mr Jeffrey Golding the sum of $1,892.10.
3. Pursuant to s 807(1)(b) of the WR Act, the first respondent pay Ms Sarah Harrison the sum of $22,035.73.
4. Pursuant to s 807(1)(b) of the WR Act, the first respondent pay Ms Rebecca Lord the sum of $332.27.
5. Pursuant to s 807(1)(b) of the WR Act, the first respondent pay Ms Lucy Richardson the sum of $4,815.50.
6. Pursuant to s 807(1)(b) of the WR Act the first respondent pay Mrs Robin Taylor the sum of $3,575.16.
7. All the sums referred to in the preceding paragraphs are to be paid to the recipient within 30 days of the making of this order.
8. The remainder of the proceeding is adjourned to a directions hearing at 2.15pm on 2 February 2012 in Hobart to program the further conduct of the proceeding in relation to the penalty, if any, which should be imposed on the respondents for breaches of the provisions of the WR Act and the Notional Agreement Preserving State Awards referred to in the accompanying reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
| VICTORIA DISTRICT REGISTRY | |
| FAIR WORK DIVISION | TAD 33 of 2010 |
| BETWEEN: | FAIR WORK OMBUDSMAN Applicant |
| AND: | MACLEAN BAY PTY LTD (ACN 106 012 748) First Respondent WENDY ANN WELLS Second Respondent |
| JUDGE: | MARSHALL J |
| DATE: | 16 JANUARY 2012 |
| PLACE: | MELBOURNE (heard in hobart) |
REASONS FOR JUDGMENT
1 This proceeding concerns claims by the applicant, Fair Work Ombudsman, that the first respondent, Maclean Bay Pty Ltd (“Maclean Bay”) has contravened various provisions of the Workplace Relations Act 1996 (Cth) (“the WR Act”) and of an industrial instrument made pursuant to it. The applicant also claims that the second respondent, Mrs Wendy Wells, was involved as an accessory in four contraventions of the WR Act concerning two of Maclean Bay’s former employees. On 9 December 2010, the Court dismissed an application by Mrs Wells to strike out this proceeding insofar as it concerns her; see Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378.
2 The applicant holds a statutory office which was established by s 681 of the Fair Work Act 2009 (“the FW Act”). He has standing to bring this proceeding. The FW Act commenced on 1 July 2009. The conduct relevant to this proceeding occurred between 1 December 2008 and 26 April 2009. At that time the WR Act was in operation. The WR Act continues to apply in relation to conduct that occurred before 1 July 2009, as a consequence of the Fair Work (Transitional and Consequential Amendments) Act 2009 (Cth). Under that transitional legislation, the applicant is entitled to make an application, on or after 1 July 2009, that was capable of being made by a workplace inspector under the WR Act. There is no dispute as to his entitlement to bring that application.
3 The contraventions alleged against Maclean Bay concern breaches of:
Provisions of Pt 22 of the WR Act dealing with sham contracting arrangements and in particular ss 900, 901 and 902 of the WR Act;
Section 792(1)(a) of the WR Act dealing with the dismissal of an employee for a prohibited reason;
Clause 77(c)(iv) of a Notional Agreement Preserving State Awards (“the NAPSA”) which required an employer to make monthly superannuation contributions on behalf of its employees; and
Clause 49(g) of the NAPSA which required an employer to pay employees an amount in respect of their unused annual leave on termination.
4 The contraventions alleged against Mrs Wells, a director of Maclean Bay, concern breaches of provisions of Pt 22 of the WR Act as “a person involved in” Maclean Bay’s contravention of ss 901(1) and 902(1), by virtue of s 728 of the WR Act, which deals with accessorial liability.
5 At all material times, Maclean Bay operated a tourist resort at Bicheno on the east coast of Tasmania. The resort is known as Diamond Island. Mr Jamie Wells and Mrs Wells were the directors of Maclean Bay at the relevant times. As at December 2008, Maclean Bay employed the following people to work at the resort:
Mrs Julie Robinson (resort manager);
Ms Katie Holmes (assistant manager);
Mrs Sharon Williams (receptionist);
Mr Jeffrey Golding (gardener);
Mrs Kerryn Smith (hospitality worker);
Mrs Janette Kubank (laundry worker);
Miss Alison Kubank (laundry worker);
Ms Sarah Harrison (housekeeper);
Ms Rebecca Lord (housekeeper);
Ms Lucy Richardson (housekeeper);
Ms Robin Taylor (housekeeper);
Mr Toby Garrett (chef); and
Mr Kelly Griffiths (chef).
6 Maclean Bay has operated the resort since 2003. In 2007, Mrs Wells and Mr Wells purchased the shares in Maclean Bay. They have been the sole shareholders of Maclean Bay since 31 October 2007 and have also been directors of the company since that time. Mrs Wells’ son, Mr James Wright, was also a director of Maclean Bay from 31 October 2007 until 29 April 2011.
STANDARD OF PROOF
7 In examining each aspect of this proceeding the Court proceeds on the basis that it is dealing with a civil proceeding in which civil penalties are sought for contraventions of provisions of the WR Act and of the NAPSA. In accordance with s 140 of the Evidence Act 1995 (Cth) the applicant is required to make out his case on the balance of probabilities. In deciding whether the Court is satisfied that any aspect of the applicant’s case is made out on the balance of probabilities the Court will take into account the nature of each cause of action and the defence to it. It will also take into account the nature of the subject matter of each aspect of the proceeding and the gravity of the matters alleged; see s 140(2) of the Evidence Act.
8 For reasons which follow, I am satisfied that all the allegations made by the applicant against the respondents are made out on the evidence before the Court. Apart from those alleging breaches of the NAPSA, the allegations are particularly serious ones. Nonetheless, the evidence in support of each such contravention is strong and in many aspects uncontradicted. This approach is consistent with that approved of by the Full Court in Qantas Airways v Gama (2008) 167 FCR 537; see at [110] where French and Jacobson JJ said:
The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. In our opinion, however, there was no indication in his Honour’s reasons that the application of the Briginshaw test made any difference, adverse to Mr Gama, in his conclusions. We agree generally with what her Honour Branson J has to say about the Briginshaw test in her separate reasons for judgment. We would add that the observations of the New South Wales Court of Appeal in Amalgamated TV Services Pty Ltd v Marsden [2002] NSWCA 419 at [54]-[61], concerning the application of s 140(2)(c) of the Evidence Act are consistent with her Honour’s reasons.
See also at [139] where Branson J said:
As I have already indicated, I agree with the conclusion of French and Jacobson JJ that the federal magistrate’s reasons for judgment do not disclose any error in the application of the applicable standard of proof to Mr Gama’s allegations. However, in my view, for the reasons given above, references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings 67 ALJR 170; 110 ALR 449, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved — and, I would add, the circumstances in which it is sought to be proved.
the unexplained absence of mrs wells
9 In several aspects of the reasons which follow the Court draws attention to the failure, without explanation, of the respondents to call Mrs Wells to give evidence. This failure is particularly surprising given that Mrs Wells was the most important decision maker and in most, if not all, critical aspects was the primary decision maker for Maclean Bay. Where in the reasons which follow attention is drawn to the absence of Mrs Wells from the witness box, the Court has accepted the applicant’s invitation to draw Jones v Dunkel (1959) 101 CLR 298 inferences concerning some of the facts to be determined.
10 As the applicant submitted in his written submissions, the pleadings and the course of the evidence in the trial disclosed that Mrs Wells (as will be seen later in these reasons) played a pivotal role in the actions of Maclean Bay. This role has taken on special importance particularly in light of the reverse onus of proof provisions (s 809(1) and 902(3)) affecting the operation of ss 792(1) and 902(1) of the WR Act. In taking into account the Jones v Dunkel inferences, the Court only does so consistently with the aspects of s 140 of Evidence Act identified at [7] above.
11 I am satisfied that the failure to call Mrs Wells makes it appropriate to make two inferences. The first is that the evidence which was not adduced from Mrs Wells would not have assisted the respondents. The second is that any inference sought to be drawn by the applicant concerning matters relevant to Mrs Wells will be more confidently drawn.
12 The failure to call Mrs Wells is particularly critical in examining whether Maclean Bay has satisfied the reverse onus of proof provisions in ss 809(1) and 902(3) of the WR Act. As Mason J said in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 619 regarding a predecessor provision to s 792(1):
The unexplained failure of the appellant to call the two Melbourne directors then becomes significant. It left uncontroverted the possibility that the respondent’s position as a shop steward was an influential, perhaps even a decisive, consideration in their minds.
13 See also Bowling v General Motors Holden (1975) 8 ALR 197 at 205 where Smithers and Evatt JJ said:
…it is a forceful comment for the informant that in a case in which direct knowledge of the fact in issue is exclusively in the possession of the party who carried the onus, and the witnesses who can give that direct evidence are not called, and are not shown to be disqualified or incapacitated in some way from giving evidence, the failure of the party to call such witnesses is a matter calling for close scrutiny of the facts upon which he relies.
dismissal of casuals employed on a regular and systemic basis
14 The respondents submit that where the applicant alleges a casual employee has been dismissed for the purposes of s 792 or Pt 22 of the WR Act such a claim cannot be established. That is because, so the argument runs, the employees are casuals who can be terminated at the end of each shift. As will be seen later in these reasons for judgment, apart from Mr Golding, all employees who are the subject of claims under s 792 and/or Pt 22 of the WR Act were dismissed during the course of a shift. It is beyond doubt that they were dismissed. Mr Golding alone appears to have been dismissed at the end of a shift. However, that does not mean that he was not dismissed for the purposes of the WR Act. In Ryde-Eastwood Leagues Club v Taylor (1994) 56 IR 385 at 401-402, a Full Bench of the Industrial Relations Commission of New South Wales held that it had jurisdiction to deal with unfair dismissal claims of a class of casual employees who had a continuing ongoing relationship with their employer. The regulations made pursuant to the WR Act dealing with the access of casual employees to the federal unfair dismissal regime in the then Australian Industrial Relations Commission were discussed in Hamzy v Tricon International Restaurants (2001) 115 FCR 78. In Hamzy the Full Court at [38] discussed the possibility of a casual employee’s work pattern “turning out to be regular and systematic”. The class of regular casual employees as discussed in Ryde-Eastwood and Hamzy was the subject of further discussion in Melrose Farm v Milward (2008) 175 IR 455 at [106] to [110] by Le Miere J (with who Steytler P and Pullin J agreed) in the Western Australian Industrial Appeals Court. In particular at [106] his Honour said:
It is not a necessary characteristic of casual employment that the employee work under a series of separate and distinct contracts of employment each entered into for a fixed period.
15 In the case of the head housekeeper, Mrs Robin Taylor, as will be seen later in these reasons, the regular systematic casual employment had been on-going for sixteen years. Mr Golding was employed from 17 March 2008 until early December 2008. During that period of time he regularly worked for 32 to 34 hours per week. At the time of his dismissal he had an expectation of on-going work on that basis; that is, a continuation of his employment, working 32 to 34 hours approximately per week. That expectation was shattered by his summary termination in early December 2008. That termination was a dismissal of a regular casual employee engaged on a systematic basis by Maclean Bay.
Section 902(1) and Sharon Williams
16 The applicant contends that Maclean Bay breached s 902(1) by dismissing Mrs Williams where its sole or dominant purpose in dismissing her was to engage her as an independent contractor to perform the same work, or substantially the same work, under a contract for services. S 902(1) of the WR Act provided that:
An employer contravenes this subsection if:
(a) the employer dismisses, or threatens to dismisses, an individual who:
(i) is an employee of the employer; and
(ii) performs particular work for the employer; and
(b) the employer’s sole or dominant purpose in dismissing or threatening to dismiss the individual is to engage the individual as an independent contractor to perform the same work, or substantially the same work, under a contract for services.
(i) Mrs Wells’ interview
17 It is not in dispute that Maclean Bay dismissed Mrs Williams on 1 December 2008 in a telephone conversation between Mrs Wells and Mrs Williams. As noted above, Mrs Wells did not give evidence in the proceeding. No explanation for the failure of the respondents to call her was offered to the Court. However, during the course of the investigation which preceded the filing of this application, officers employed by the applicant conducted a record of interview with Mrs Wells on 25 September 2009.
18 In that interview Mrs Wells said that Mrs Robinson, as general manager, was responsible for the day to day running of the resort and that Mrs Robinson had been responsible for employing and dismissing staff. Mrs Wells said that she was concerned about the cost of the cleaning at the resort and considered that Diamond Island had to obtain the services of contract cleaners to perform the cleaning work instead of the casual housekeeping staff who were employed at the resort. She was also concerned that in order to achieve five star status for the resort, the cleanliness of the premises needed to be improved. Mrs Wells said it was her idea to bring in contractors, in her words, “starting with the cleaning system”.
19 Mrs Wells described the engagement of contractors as starting with the cleaning, “and then it quickly spread to…cooks”. Mrs Wells said she made it clear to Mrs Robinson that “we should change the cleaning system to professional cleaners”.
20 Mrs Wells told the inspectors that her five other family businesses in Queensland did not engage any employees but relied on contractors, with the exception of her son’s legal practice. Mrs Wells said that she understood the difference between an employee and an independent contractor. She said the contractor is “an independent business” and “able to do anything they want”. Mrs Wells is a former legal practitioner and it is not in dispute that she knows the difference between a contract of service and a contract for services.
21 Leaving aside the cleaning staff, Mrs Wells was asked whether she had any other issues with any other staff regarding work performance. Mrs Wells said that was something that could be directed to Mrs Robinson, but that she did not recall talking to any staff member about things that she may not have liked about them. Mrs Wells told the investigators that she used to say to staff that “it was up to Julie [Robinson] if you get hired or fired around here. It’s not my decision”.
22 Mrs Wells said that Mrs Robinson employed Mrs Williams to help Mrs Robinson in the resort’s office. She said Mrs Williams “started” on 4 April 2008 as a casual. Mrs Wells was not sure of Mrs Williams’ exact duties but said “you do everything here in a small business … if someone came to the front desk she would help them”. She referred to a conversation she had with Mrs Williams in which Mrs Williams told her that she had worked in law offices for quite a while. Mrs Wells then said:
I made a point of saying I used to be a lawyer for many, many years and … now my son has the practice and that … an engineer lied and I got struck off for lying to a judge, which I never lied to, and I spent the last 10 years trying to overturn that decision.
23 Mrs Wells said that, other than that referred to in the preceding paragraph, she had “no personal discussions” with Mrs Williams and little interaction with her when she was at the resort, visiting from Queensland, apart from saying hello and asking Mrs Williams to get her a cup of coffee because “my girls in Brisbane always still make me my coffees”. Mrs Wells said that as far as she knew Mrs Robinson was happy with Mrs Williams’ work and that she, Mrs Wells, had no problem with her other than that Mrs Williams had a sick husband which meant sometimes Mrs Williams could not work.
24 Mrs Wells acknowledged that Mrs Robinson needed help in the office and that Mrs Williams was qualified to help her. Mrs Wells then said that she told Mrs Robinson that Mrs Williams was “not a personal person” and that:
in a resort you have to be…gregarious with people. People are on holidays. They want someone who is going to smile at them and ask them where they’re going next, you know, ‘How are the kids?’; and where do they live, and all. That’s what they want.
Mrs Wells went on to say:
Unfortunately Sharon didn’t have that personality but that’s nothing against her. A lot of people don’t. Hospitality is hard. It’s a hard business. I have learnt that. You have got to be happy all the time and pleasant to people and it’s…not an easy job. Some people like it. A lot of people don’t take to it. …
25 Mrs Wells said that she asked Mrs Robinson to terminate Mrs Williams. She said that she told Mrs Robinson that she was unhappy with Mrs Williams and said she told Mrs Robinson to tell Mrs Williams that she would not be required any more. She said this occurred on 28 November 2008, the Friday before the Monday on which Mrs Williams was dismissed.
26 Mrs Wells said that Mrs Williams was a casual and that there was no need to give her notice. She told the investigators that:
… I just said to Julie on that Friday, “Please tell Sharon we just don’t require her anymore”.
Mrs Wells said that when she rang the resort on the following Monday to talk to Mrs Robinson she was shocked when Mrs Williams answered the telephone “because my understanding was that Julie had terminated her on the Friday”. According to Mrs Wells the telephone conversation went to the following effect:
Mrs Wells: What are you doing there?
Mrs Williams: I’m working.
Mrs Wells: Didn’t Julie tell you to finish?
Mrs Williams: I want to speak to Julie about this.
Mrs Wells: No, it was made very clear to Julie, so I’m sorry but you are not going to be there anymore. Please go.
27 Mrs Wells said that Mrs Robinson “got into a lot of trouble over that from me because I would have preferred if she would have done what I asked her to do”. She added, “from my recollection Sharon [Williams] is the only one I have actually asked Julie to tell her that we don’t need her anymore.”
28 To justify the termination Mrs Wells said:
…to the best of my recollection it was a combination of the girl not being suitable for front line position in my opinion, but it also could have been financial, I don’t know – I can’t remember at that time.
29 Mrs Wells said that Mrs Williams was offered a contract by Mrs Robinson. Mrs Wells referred to emails concerning Mrs Williams getting her job back. Mrs Wells said that Mrs Robinson’s response to Mrs Williams was “I don’t think so”.
30 Mrs Wells then said that in response to an email from Mrs Robinson on 8 December 2008 asking if she could offer “a contract to Sharon to do coffee and things like that”, Mrs Wells replied that, “Julie … you can pursue that if you like”. She then added “but I – in my mind it wasn’t on.”
31 Mrs Wells said that Mrs Williams was not offered a contract for services by her prior to 28 November 2008. She said that Mrs Williams approached Mrs Robinson to get her job back and that Mrs Robinson said words to the effect of, “what could we do for this girl?”
32 Mrs Wells later told the interviewers that “we definitely want contractors only”.
33 Near the conclusion of her questioning Mrs Wells said that she had to “show absolute candour to the Supreme Court of Queensland …” as the “whole record of interview would be brought up” were she to seek readmission as a legal practitioner. Later on she said:
…I am raving on a bit but I just want to show you that my attempt here is to be as honest, straightforward as I possibly can, and try and clear up this issue.
34 For reasons which will become apparent once the sworn evidence given to this Court by Mrs Williams, Mrs Robinson, Ms Holmes and even Mr Wells, is analysed, Mrs Wells did nothing in her interview to enhance her standing to be readmitted as a legal practitioner in Queensland. Her evidence to the investigators was false in several key respects. It is before me as an exhibit to an affidavit relied on by the applicant. Where it conflicts with sworn evidence of witnesses called by the applicant it is not accepted. Mr Wells, whose evidence is discussed below, did not give truthful evidence to the Court in several key aspects which will be discussed later in these reasons. He was not an honest witness, but someone who was prepared to engage in recent invention to avoid the consequences of a truthful account of Maclean Bay’s treatment of Mrs Williams. But even Mr Wells did not seek to rely on the inherently improbable scenario that, based on the casual contact between Mrs Wells and Mrs Williams, Mrs Wells decided to dismiss Mrs Williams because she was not outgoing enough. Mrs Wells suggestion that cost cutting may have been involved but she could not remember is equally mystifying and not supported by any cogent or credible evidence. As will be seen below, Mrs Williams’ termination led to other employees working extra hours.
(ii) Mr Wells
35 Mr Wells is a building contractor. He said that he decided jointly with Mrs Wells to dismiss Mrs Williams. That aspect of his version of events gains no support from Mrs Wells’ interview where she maintained that it was her decision. Mr Wells gave unreliable evidence about his involvement in the termination in an attempt to persuade the Court that he was the decision maker and that the decision had nothing to do with Mrs William’s refusal to become a contractor.
36 According to Mr Wells, Mrs Williams was summarily terminated during the course of a casual shift because she was excess to staff requirements. He gave evidence that Mrs Williams was never needed in the office and that he was opposed to her initial engagement. He thought there was no need for three people in the office. That is despite evidence from Mrs Robinson and Ms Holmes that they worked longer hours before Mrs Williams was employed and reverted to those longer hours after Mrs Williams was dismissed. This evidence of Mr Wells is not credible. It does not withstand rational analysis. It is a recent invention designed to hide the real reason for the dismissal. He said he could not recall when he made the decision to dismiss Mrs Williams but Mrs Wells instructed someone to dismiss her. He said he discussed whether there was a need for three people in the office with his wife and between them a decision was made to terminate Mrs Williams’ employment. This evidence is not credible. It finds no support in Mrs Wells’ interview. It is at odds with the evidence of Mrs Williams, Mrs Robinson and Ms Holmes. Those witnesses were impressive and honest witnesses.
37 Mr Wells gave evidence, under cross-examination, that he thought contractors were better than employees because they were more productive. He gave incredible evidence about Mrs Wells not having more involvement in the resort than him in the second half of 2008, when Mrs Robinson gave uncontradicted evidence that as general manager she reported to Mrs Wells.
38 Mr Wells agreed that Mrs Robinson worked in excess of 60 hours per week before Mrs Williams’ dismissal and did not disagree with the suggestion that she performed even more work after that dismissal. Although, he added:
If that’s what she did. I didn’t agree she needed to do those hours.
39 Insofar as Mr Wells had any involvement in Mrs Williams’ termination, having regard to the evidence of Mrs Williams, Mrs Robinson and Ms Holmes (together with the inherent improbability in Mr Wells’ recent inventions) I am satisfied that Mr Wells supported Mrs Wells’ decision to terminate Mrs Williams. The reason he did so was because she had expressed reluctance to Mrs Robinson on Friday 28 November 2008 to become an independent contractor. As will be seen, Mrs Robinson told Mrs Wells about Mrs Williams’ reluctance in a telephone conversation on 28 November 2008. Mrs Wells then, without Mrs Robinson’s knowledge, rang the resort on 1 December 2008 and terminated Mrs Williams. The phone call was intended to effect the termination. Mrs Wells’ suggestion to the investigators about being surprised that Mrs Williams answered the telephone is not credible. The same can be said to be of the recent invention by Mr Wells that Mrs Wells was upset that Mrs Williams was still at work on 1 December 2008.
(iii) Mrs Williams and Mrs Robinson
40 Mrs Williams gave her evidence in a sincere, straightforward manner and was not challenged on most critical aspects of it. Mrs Williams said she was employed as a casual receptionist from 4 April 2008 until 1 December 2008 at Diamond Island. The duties she performed in her job are set out in an exhibit in the proceeding [Exhibit L]. That is the contract for services that Diamond Island offered her as a basis for her return to work at the resort about a week after her termination. Mrs Williams was working about 20-25 hours per week when terminated but during the winter of 2008 her hours were sometimes as low as 10-15 hours per week.
41 Mrs Williams gave evidence that Mrs Robinson told her that Mrs Wells wanted all casual staff at the resort to be engaged as independent contractors. Mrs Robinson told Mrs Williams that she would be running her own business and would have to get an Australian Business Number (“ABN”). There was a specific discussion on the afternoon of Friday 28 November 2008 in which Mrs Robinson told Mrs Williams that management of the resort wanted her to be a contractor. Mrs Robinson told Mrs Williams to go home and think about it and that they would discuss it on the Monday. The discussion never took place because Mrs Williams was terminated by Mrs Wells on the Monday morning before the discussion could occur.
42 At this point, it is pertinent to digress to the evidence of Mrs Robinson which is discussed in a more fulsome fashion later in these reasons. For the moment, it is important to focus on what led up to the events of 28 November 2008 and the fateful telephone call the following Monday.
43 Mrs Robinson said she was spoken to several times by Mrs Wells, commencing in 2007, about the staff at the resort becoming independent contractors. Mrs Robinson said of Mrs Wells, “she wanted everybody to go on contract”.
44 About two months before Mrs Williams’ dismissal, Mrs Wells spoke to Mrs Robinson about getting ready for the staff to go on contracts. She said Mrs Wells told her, words to the effect:
That is the way I want – I don’t want to have to pay superannuation…I want it all on contracts so that I don’t have these other extra worries, I just have one payment.
The extra worries, according to Mrs Robinson as referred to by Mrs Wells, were “superannuation and tax, payroll tax”.
45 Mrs Robinson said that she was required by Mrs Wells to go to the staff “with instructions to say that contracts will be coming.” She said she was told to tell all staff. Mrs Robinson said contracts were later drawn up with people’s names on them, starting with Mr Golding, Mr Garrett, Mr Griffiths and then Mrs Williams. Mrs Robinson said that the contracts “came by email from head office”. She said her discussions and emails were with Mrs Wells.
46 Mrs Robinson said that she had a conversation with Mrs Williams about her becoming an independent contractor in the week prior to her dismissal. In that discussion Mrs Robinson said Mrs Williams was “not happy about going on contract”. Mrs Robinson said that she (Mrs Robinson) did not have enough information for Mrs Williams “to make a decision fully on it” but that “she (Mrs Williams) wasn’t happy about it”.
47 Mrs Robinson gave evidence that Mrs Williams had to leave work early on the afternoon of Friday, 28 November 2008 and that she said to Mrs Williams:
we will discuss the contract on Monday when you come back to work and come in on the Monday and we will be able to go through it…I will be able to talk to you more about it.
48 Unfortunately for Mrs Williams, after that discussion on the Friday afternoon Mrs Robinson telephoned Mrs Wells and informed her that Mrs Williams was “not happy to go on contract” or was “not happy about the upcoming contract”. She told Mrs Wells that she was going to discuss it with Mrs Williams on Monday. Mrs Wells did not respond.
49 Neither in that conversation referred to above, or on any other occasion, was Mrs Robinson, according to her evidence, ever told that Mrs Williams was not required for lack of work. Such a suggestion is inconsistent with the extra hours worked by Mrs Robinson and Ms Holmes after the dismissal of Mrs Williams. Mrs Robinson denied under cross-examination, and I accept, that Mr Wells or Mrs Wells said anything to her about Mrs Williams not being required in the week before her dismissal. I do not accept that Mrs Williams was dismissed because she was excess to requirements. The suggestion that Mrs Robinson was so instructed to dismiss Mrs Williams for that reason is a fanciful recent invention of Mr Wells. It is a recent invention which gains no support from Mrs Wells’ interview.
50 I am satisfied that after Mrs Wells was told by Mrs Robinson that Mrs Williams was unhappy about being an independent contractor, Mrs Wells decided to terminate Mrs Williams’ employment. I am also satisfied that she telephoned Mrs Williams on the morning of 1 December 2008 to dismiss her because of her expressed reluctance.
51 I accept the version of the fateful telephone conversation as expressed in the evidence of Mrs Williams which was to the following effect:
Mrs Williams: Hello, Diamond Island.
Mrs Wells: What are you doing there? I don’t believe you are happy to enter into contract work.
Mrs Williams: What do you mean? I haven’t discussed my decision with Julie yet.
Mrs Wells: All my staff in Brisbane are contractors and that’s how I want Diamond Island staff, so the casuals become self-contractors. Are you happy to change?
Mrs Williams: No I would not be.
Mrs Wells: Julie has been very happy with you. We will be sorry to lose you. We will offer you a great reference but business is business and from this moment we won’t be paying you.
Mrs Williams: Okay.
52 I accept the above as a truthful account of the conversation in which Mrs Williams was dismissed. I reject the version put by Mrs Wells to the investigators as a fabrication designed to avoid admission of a contravention of the WR Act. Mrs Wells’ failure, without explanation, to go into the witness box confirms my view that her account should not be accepted. It follows that I accept the denial of Mrs Williams, under cross-examination, that Mrs Wells said to her, “didn’t Julie tell you to finish?”
53 Mrs Williams gave evidence that as she hung up the telephone receiver she had tears running down her face and was very upset. She said that a couple of hours later Mrs Robinson rang her at home and asked her what had happened. She said that Mrs Robinson told her that Mrs Wells should not have done that without talking to her first. Mrs Robinson asked Mrs Williams if she was willing to come back to work because “we need you”. Mrs Williams said she told Mrs Robinson that she would as she loved her job and loved working at the resort.
54 Mrs Williams said that Mrs Robinson telephoned her the next day (2 December 2008) and told Mrs Williams that Mrs Wells would only have her back as a contractor. Mrs Williams said that late in the afternoon of 2 December 2008, Ms Holmes telephoned her and said that she and Mrs Robinson wanted her back and asked if Mrs Williams was prepared to have a look at a contract which would make her better off. Mrs Williams said she would be prepared to have a look at it and Ms Holmes told her she would let her know when the contract was ready.
55 Mrs Williams said that Mrs Robinson telephoned her on 8 December 2008 to say the contract was ready for her to have a look at. She picked it up on 9 December 2008 from the resort. The proposed contract is Exhibit L as referred to at [40] above.
56 Mrs Williams did not agree to sign that contract. She said she was interested in looking at the contract but didn’t wish to enter into it. She said the duties referred to in it were those which she performed prior to her dismissal. She said she was not operating a business at the time. She also said that she enjoyed her job and was looking forward to a long future at the resort.
(iv) Ms Holmes
57 Ms Holmes gave evidence that Mrs Wells told her that she wanted Mrs Williams to become a contract worker. The conversation occurred in the second half of November 2008. She also said that about that time Mrs Robinson spoke to her about Mrs Williams becoming a contractor. Ms Holmes admitted, under cross-examination, that her discussions with Mrs Wells about contractors in general arose in connection with a desire by Mrs Wells to bring in contract cleaners to reduce those housekeeping costs. However, also, under cross-examination, Ms Holmes confirmed that Mrs Wells told her that she wanted all staff to work at the resort “as contractors”.
58 Ms Holmes was not challenged on any other aspect of her evidence concerning Mrs Williams. Ms Holmes gave evidence in an impressive manner and appeared to me to be a witness of the truth. Ms Holmes said that she was very shocked to learn of Mrs Williams’ dismissal. She said:
Sharon was an integral part of the team and did a lot of work for us and it would mean that Julie and I would be under pressure again to pick up Sharon’s work as well as our own work and we would fall behind again.
59 Ms Holmes gave evidence that she and Mrs Robinson decided to ask Mrs Wells if Mrs Williams could come back to work at the resort. She said:
I rang Wendy and we spoke about the workload and how Julie and I both felt very strongly that we did need Sharon to be at the resort to help us run the resort.
60 Mrs Wells asked Ms Holmes to draw up a contract, “run it by” Mrs Robinson and if Mrs Williams accepted the contract she could come back to work. Ms Holmes then discussed the matter with Mrs Robinson and telephoned Mrs Williams, asking her:
Would you consider coming back to work if we can draw up a contract for you that’s fair?
None of the above evidence of Ms Holmes was challenged in cross-examination.
(iv) Mrs Robinson (additional matters)
61 The following important points may be distilled from the evidence of Mrs Robinson. To an extent, they repeat some of the evidence discussed when dealing with Mrs Williams’ evidence.
she employed and dismissed staff with the approval of Mrs Wells;
she dealt with any issues concerning staff performance;
she never had any concerns about the conduct or performance of Mrs Williams;
Mrs Wells discussed with her the possibility of staff becoming independent contractors on several occasions;
Mrs Wells told her that she wanted all staff to become independent contractors;
Mrs Wells didn’t want to pay superannuation, income tax or payroll tax in respect of employees;
Mrs Wells asked her to talk to staff about them becoming independent contractors;
contracts were later provided by Mrs Wells, with names on them;
the contracts were based on the award rate plus 9% (replacing superannuation contributions);
she dealt solely with Mrs Wells on the issue of contracts;
she did not receive a contract for Mrs Williams until after Mrs Williams’ dismissal;
she spoke to Mrs Williams about becoming a contractor in the week before her dismissal. Mrs Williams was not happy about being a contractor;
Mrs Williams told her she did not have enough information to make a decision about a contract. As Mrs Williams had to leave work early on the Friday before her dismissal, discussion between her and Mrs Williams was put off to the Monday;
after the Friday conversation with Mrs Williams about the possibility of Mrs Williams becoming a contractor, she rang Mrs Wells and told her Mrs Williams was not happy about becoming an independent contractor. She told Mrs Wells that Mrs Williams and she would discuss the matter on the next Monday;
she became aware of Mrs Williams dismissal on the morning of Monday, 1 December 2008. She telephoned Mrs Wells who said that she “didn’t want Sharon there anymore”. She told Mrs Wells that Mrs Williams was needed at the resort and that she was to have had a discussion with her about a contract that morning;
she spoke to Mrs Williams on the telephone after the dismissal and told her that she was sorry it happened;
she engaged in an email exchange with Mrs Wells designed to produce a proposed contract for services for Mrs Williams which culminated in Exhibit L;
she amended the description of duties on Mrs Williams’ proposed contract to reflect all her duties prior to dismissal; and
she received an email from Mrs Wells on 8 December 2008 concerning the proposed contract which said that Mrs Wells was happy to meet with Mrs Williams and discuss. The email chain is Exhibit AB.
(vi) Summary of critical findings of fact concerning the dismissal of Mrs Williams
62 I am satisfied that Mrs Wells, and Mrs Wells alone, decided to dismiss Mrs Williams because Mrs Robinson had told her that Mrs Williams was not happy about becoming an independent contractor. Mrs Wells wanted all staff at the resort to be independent contractors and was not prepared to have anyone work at the resort who resisted her plan. At the very least she decided that Mrs Williams should be dismissed for her reluctance to become an independent contractor. Once it became apparent to Mrs Wells that Mrs Robinson and Ms Holmes needed Mrs Williams to work at the resort Mrs Wells was prepared to have Mrs Williams return to work, but only as an independent contractor. In the termination conversation, Mrs Wells asked Mrs Williams if she would be happy to change to a contractor. The negative response sealed Mrs Williams fate and secured her dismissal.
63 Mrs Wells was not truthful with the applicant’s investigators when she said that she dismissed Mrs Williams because she was not an “outgoing” person. Mrs Robinson had no problem with Mrs Williams’ work ethic nor did Ms Holmes. It is fanciful to suggest that an absent owner might override local managers on such a trivial basis on the issue as to whether Mrs Williams smiled enough at customers. Mrs Wells’ throw away line about financial issues possibly being relevant is a relatively recent invention. Mrs Williams’ hours were filled in by Mrs Robinson and Ms Holmes after the termination as they were before her engagement. Mr Wells’ evidence to the same effect was another example of recent invention. The suggestion that someone is dismissed to save money and have others perform their duties on an extra time basis defies rational analysis.
64 The evidence of Mrs Williams, Ms Holmes and Mrs Robinson is to be preferred to the evidence of Mr Wells and the transcript of Mrs Wells’ interview on the above critical facts.
(vii) The elements of s 902(1)
65 I am satisfied that the applicant has established that Maclean Bay breached s 902(1) of the WR Act because:
it dismissed Mrs Williams;
Mrs Williams was an employee of Maclean Bay who performed particular work for Maclean Bay;
Maclean Bay’s sole, or at the very least, dominant purpose in dismissing Mrs Williams was to engage Mrs Williams as an independent contractor to perform the same work as she had performed under a contract of employment but under a contract for services.
66 At the very least, Maclean Bay has not displaced the presumption contained in s 902(3) that its dominant or sole purpose was as set out in the preceding paragraph.
67 Mrs Williams was required by Maclean Bay to be an independent contractor. She expressed disquiet about doing so. She was then terminated but offered re-engagement if she returned as an independent contractor. Indeed during the conversation in which Mrs Williams was dismissed, Mrs Wells asked her if she “would…be happy to change?” It is difficult to imagine a clearer case of contravention of s 902(1).
68 I am satisfied that Mrs Wells made the decision to terminate Mrs Williams. I reject the evidence of Mr Wells that it was a joint decision. So much is consistent with the evidence of Mrs Robinson and Ms Holmes that they dealt with Mrs Wells solely on issues concerning staff at the resort. Mrs Wells failed to give evidence. She has not sought to discharge the onus of proving that she was not actuated by the purpose referred to in s 902(1)(b) of the WR Act.
(viii) Conclusion
69 The relevance of General Motors Holden v Bowling is discussed at [12] and [13] above. As adapted to deal with s 902, Bowling in the High Court relevantly stands for the proposition that the failure of an employer to adduce evidence concerning its subjective purpose in dismissing an employee will leave uncontroverted the possibility that the sole or dominant purpose in dismissing the employee was to engage the person as an independent contractor to perform the same, or substantially the same work.
70 If I am in error in determining that the decision to dismiss Mrs Williams was that of Mrs Wells alone and that the correct view is that it was a joint decision of Mr and Mrs Wells, the failure to call Mrs Wells as to her motivation for the joint decision provides Maclean Bay with the same difficulties as discussed in Bowling concerning the absence of evidence from some decision makers. There is no sworn evidence from Mrs Wells before the Court as to her motivation. It is clear from the transcript of her interview with the applicant’s officers that her motivation may not have been the same as Mr Wells, assuming the acceptance at face value of his evidence in that regard (which I do not).
71 Putting aside issues of onus, I am satisfied, in any event, that the better view of the evidence for the reasons set out above is that Maclean Bay, through Mrs Wells, dismissed Mrs Williams for the purpose of seeking that she be engaged as an independent contractor doing the same work as she was doing as an employee. When Mrs Robinson suggested that a contract for services be put to the then dismissed Mrs Williams, Mrs Wells showed no reluctance and engaged in an email exchange with Mrs Robinson to have a contract prepared for Mrs Williams only one week after her termination. Maclean Bay thereby attempted to achieve its purpose of having its receptionist engaged as a contractor. The only reason so much did not ensue was that Mrs Williams was reluctant to enter into what would have been a charade. The charade would have consisted of the parties’ pretence that a contract for services existed when the truth was to the contrary. Here, a receptionist engaged by one employer, at one site, subject to directions from a manager, was sought to be dressed up as a contractor because her employer wished to be released from its lawful obligations to her. So much amounts to a sham arrangement. Mrs Williams was prudent to resist such a sham arrangement. However, I have no doubt that the desire to establish such a sham arrangement with Mrs Williams was the sole or predominant reason for her dismissal by Mrs Wells.
Mrs Wells’ accessorial liability for the breach of s 902(1)
72 I accept that Mrs Wells is personally liable for the contravention of s 902(1) of the WR Act in respect of Mrs Williams. That is because Mrs Wells was “involved in” that contravention, within the meaning of s 728 of the WR Act. I am satisfied that she procured the contravention by acting to terminate Mrs Williams for the purpose prohibited by s 902(1).
73 I am satisfied that Mrs Wells “associated herself” with the contravening conduct. Indeed she was the moving force in Maclean Bay when it engaged in the contravening conduct. She was “linked in purpose” with Maclean Bay. She was “implicated” and “involved in” the contravening conduct and a participant in it, see Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at [26].
74 I reject the submission of the respondents that the reference to “employer” alone in s 902(3) shows that s 902 is not capable of attracting accessorial liability. Mrs Wells had actual knowledge of the elements of the contravention of s 902(1). She was the person who effected the contravention on behalf of Maclean Bay.
75 The respondents’ submission is also rejected because there is no reason to construe the reference to employer in s 902(3) as excluding the possibility of accessional liability in anyone who is not the employer but is, nonetheless, involved in the contravention. As the applicant contends in written submissions, s 902(3) applies to proceedings alleging a breach of s 902(1), which includes a proceeding for accessional liability under s 728. Section 727 in Div 3 of Pt 14 of the WR Act states that Div 3 “sets out rules that apply for the purposes” of certain civil remedy provisions. Section 902(1) is a civil remedy provision. So much is said in s 902(2).
76 Reliance on s 902(3) to seek to shield Mrs Wells from accessional liability under s 902(1) is misplaced, in any event, because the Court does not need to rely on the statutory presumption in s 902(3) in respect of the contraventions. Putting issues of onus aside, the better view of the evidence is that Maclean Bay breached s 902(1). Mrs Wells was the person through whom Maclean Bay acted in dismissing Mrs Williams for the reason prohibited by the section as the sole or predominant reason for the dismissal. So much is crystal clear. No resort to any evidentiary presumption is necessary to found accessional liability in respect of Mrs Wells. Should such resort be necessary, in the alternative, the better view is that Mrs Wells did not displace the evidentiary onus placed on her.
Alleged breach of s 792 of the WR Act by Maclean Bay in respect of Mrs Williams
77 The applicant alleges that Maclean Bay breached s 792(1)(a) of the WR Act by dismissing Mrs Williams for a prohibited reason. The relevant alleged prohibited reason is that contained in s 793(1)(i). In particular, it is alleged that Maclean Bay dismissed Mrs Williams for the sole or dominant reason that Mrs Williams was entitled to the benefit of an industrial instrument, being the NAPSA. It is not in dispute that during Mrs Williams’ employment with Maclean Bay she was entitled to the benefit of the NAPSA.
78 Section 792(4) of the WR Act provides that:-
An employer does not contravene subsection (1) because of paragraph 793(1)(i) unless the entitlement described in that paragraph is the sole or dominant reason for the employer doing any of the things described in paragraph (1)(a), (b), (c), (d) and (e) of this section.
79 Sections 792 and 793 of the WR Act are found in Div 4 of Pt 16. Division 9 of Pt 16 is headed “Enforcement”. Section 809 of the WR Act is found in Div 9. Section 807 of the WR Act (also in Div 9), is the provision under which an application may be made to the Court for the imposition of a pecuniary penalty on a person for the contravention of a civil remedy provision of Pt 16. Section 792(2) of the WR Act provides that s 792(1) is a civil remedy provision.
80 Section 809(1) of the WR Act provides:-
If:
(a) in an application under section 807 relating to a person’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.
81 Reading ss 809, 792 and 793 together, has the following effect for this proceeding: unless Maclean Bay proves that it did not dismiss Mrs Williams for the sole or predominant reason that she was entitled to the benefit of the NAPSA, it is presumed that it did so.
82 In his written submissions, counsel for Maclean Bay contends that s 809(1) does not apply to alleged contraventions of s 792(1) by reason of s 793(1)(i). There is nothing in the language of the WR Act to support that submission. There is nothing in Pt 16 to indicate that the reverse onus of proof provided for by s 809(1) has no application in cases where s 793(1)(i) is alleged to be the prohibited reason. The only difference is that for prohibited reasons, other than the s 793(1)(i) reason, a respondent must prove that it was not actuated in part by that reason. For s 793(1)(i) that is changed so that it must show it was not the sole or dominant reason. Counsel for the respondents sought to contrast s 902(3) with s 809(1). Section 902(3) refers specifically to the sole or dominant reason. That is because for s 902(1) purposes, the onus on the employer is to show that the s 902(1)(b) purpose was not the sole or dominant reason. Section 792(1) deals with a far broader range of matters. Section 809(1) is applicable to that broad range of prohibited reasons including the one in s 793(1)(i). The result is that for current purposes Maclean Bay bore the onus of proving that it did not dismiss Mrs Williams for the sole or dominant reason that she was entitled to the benefit of the NAPSA.
83 Mrs Wells made the decision to terminate the employment of Mrs Williams. Mrs Wells failed without explanation to give evidence in the proceeding. Mr Wells gave evidence that the decision was a joint one. His evidence in that regard has not been accepted; see at [36] above. Mr Wells gave evidence that he agreed to dismiss Mrs Williams because she was not needed. That evidence is not accepted, see at [36] above.
84 The consequence of the findings referred to in the preceding paragraph is that Maclean Bay has not discharged its onus of proving that it did not dismiss Mrs Williams for the sole or dominant reason that Mrs Williams was entitled to the benefit of the NAPSA. Even putting to one side s 809(1) of the WR Act, the evidence demonstrates that Maclean Bay terminated Mrs Williams for the dominant reason that it wished to be relieved of its obligations to her under the NAPSA as a person being entitled to the benefit of the NAPSA, rather than some alleged independent contractual arrangement.
85 There is evidence before the Court of a desire by Maclean Bay to turn all its casual workforce into contractors. In the case of the cleaning staff, a contract cleaning company was contemplated. Under this strategy it was intended that the wages bill would be reduced and costs cut. Obligations under the NAPSA to pay annual leave and superannuation would then disappear. The case against Maclean Bay for breach of s 792(1) of the WR Act in respect of Mrs Williams by reason of s 793(1)(i) is a very strong one and is made out, with and without the operation of s 809(1). In any event the Court finds that the onus under s 809(1) has not been satisfied by Maclean Bay. In the alternative, if s 809(1) is inapplicable (contrary to my primary and firm view), the breach of s 792(1)(a) has nonetheless been established by the applicant, without reference to issues of onus.
Section 901(1) – Mrs Williams and Maclean Bay
86 Section 901(1) of the WR Act prohibits a person from offering to enter into a contract with an individual and represent to the individual that the contract is one for services but which, if entered into, would be a contract of employment.
(i) Did Maclean Bay offer a contract to Mrs Williams?
87 Mrs Robinson gave evidence that she received a contract for Mrs Williams by email from head office. Mrs Robinson also said that she had to amend the contract provided by Mrs Wells for Mrs Williams to add Mrs Williams’ job duties description. The exchange by which the contract was amended occurred by email between Mrs Robinson and Mrs Wells. Mrs Robinson said the contract for Mrs Williams was provided with her name on it, as were contracts sent to her from Mrs Wells for other workers at the resort. Mrs Robinson said she received the contract for Mrs Williams after Mrs Williams had been dismissed. In an email exchange between Mrs Wells and Mrs Robinson, Maclean Bay proposed a contract for Mrs Williams. The proposed contract for Mrs Williams [Exhibit L], sent to Mrs Robinson by Mrs Wells did not include the duty referred to as “daily account and information management”. On 6 December 2008, Mrs Robinson emailed Mrs Wells a revised version of the contract for Mrs Williams. This revised version [Exhibit AB, pp 2-3] added the extra duty to reflect the full range of work Mrs Williams had been performing as an employee, prior to her dismissal.
88 In an email sent on 8 December 2008, (also in Exhibit AB), Mrs Wells approved Mrs Robinson offering a contract to Mrs Williams in those amended terms. The first version of that contract [Exhibit L] had been sent to Mrs Robinson by Mrs Wells by email some time between 1 and 6 December 2008. Mrs Wells made it clear in an email sent to Mrs Robinson (also in Exhibit AB) that she was happy to meet Mrs Williams “to discuss” after being sent a copy of the revised contract. Mrs Robinson then emailed Mrs Wells to say that she would contact Mrs Williams to see when she will be able to come in. Mrs Robinson wrote, “as yet I have not given her a copy of the contract – I wanted to clear it with you first”. The response from Mrs Wells was, “thanks”.
89 Mrs Williams said that Ms Holmes telephoned her on 2 December 2008 to ask if she was prepared to look at a contract which would make her better off. She said that she told Ms Holmes she was prepared to look at it. Mrs Williams said she received a telephone call from Mrs Robinson on 8 December 2008 to say that the contract was ready for her to have a look at. Mrs Williams said she picked up the contract from Mrs Robinson at the resort on 9 December 2008. The copy she was given reflected the form in Exhibit L and not Exhibit AB but the difference is immaterial; the mistake would have been rectified prior to any signing of the contract. In any event, Mrs Williams did not sign any contract for services.
90 Ms Holmes gave evidence that after Mrs Williams’ dismissal, Mrs Wells told her that if she, Ms Holmes, drew up a contract for Mrs Williams, ran it by Mrs Robinson and if Mrs Williams accepted it she could come back to work.
91 Ms Holmes said that Mrs Wells told her to say to Mrs Williams:
Would you consider coming back to work if we can draw up a contract which is fair?
Ms Holmes said in her conversation with Mrs Williams she asked Mrs Williams the above question and that Mrs Williams replied that she would consider it.
92 I find, in accordance with the abovementioned evidence that Maclean Bay, through Mrs Wells, Mrs Robinson and Ms Holmes offered a contract to Mrs Williams for her to consider. It is immaterial whether the contract was in the form of Exhibit L or Exhibit AB. It was a contract and it was offered to Mrs Williams for her to consider.
(ii) Did Maclean Bay represent to Mrs Williams that the contract was one for services?
93 The answer to the above question is, yes, it did. Exhibits L and AB are headed “Contract for Services”. That is the only basis on which Maclean Bay was prepared to re-engage Mrs Williams. Indeed she was earlier dismissed because, on 1 December 2008, she expressed an unwillingness to enter into a contract for services.
(iii) Would the contract, if entered, have been one of employment?
94 There is no doubt that if re-engaged to perform the same work as she had been performing when she worked at the resort, Mrs Williams would have been an employee. Her work would have been performed at the direction of Maclean Bay. She would not have run her own business. The contract for services was a sham, seeking to disguise the real situation that nothing would change about the way Mrs Williams went about her duties as compared to pre-December 2008. The only differences are that her take home pay would increase (to reflect no provision for superannuation contributions). She would also have to pay her own income tax. Further, no superannuation payments into any fund would be paid for her by Maclean Bay and she would have to pay her own workers’ compensation insurance. This was nothing more than a cost cutting exercise engaged in by Maclean Bay without any regard to the reality that it intended to re-engage Mrs Williams as an employee and direct and control her work. As well as seeking to effect a sham arrangement, Maclean Bay was engaged in a gross abuse of power as an employer over a vulnerable, non-unionised regular casual employee. It is farcical in the extreme to consider that a receptionist in Mrs Williams’ position would be “running her own little business” and should have to provide her own workers compensation insurance.
(iv) Consequence of the above
95 Maclean Bay has breached s 901(1) by offering to enter into a contract with Mrs Williams and representing to her that the contract is one for services where, if entered into, it would have been one for employment.
Section 901(1) MRS Williams and Mrs Wells
96 As the Court has found that Maclean Bay has breached s 901(1) of the WR Act in respect of Mrs Williams, the issue of whether Mrs Wells has contravened that provision arises for consideration.
97 For the following reasons I consider that Mrs Wells is accessorily liable and thus has breached s 901(1) of the WR Act. She intended to participate in Maclean Bay’s breach of s 901(1) in respect of Mrs Williams and she had actual knowledge of the components of the contravention. They were:
the offer made by Maclean Bay to Mrs Williams to enter into the contract;
the making of the representation by Maclean Bay that the contract, if entered into, would be a contract for services under which Mrs Williams would perform work for Maclean Bay as an independent contractor; and
that the contract, if entered into, would have been a contract of employment under which Maclean Bay would have been the employer of Mrs Williams, rather than a contract for services.
98 The evidence to support those findings is that Mrs Wells, as seen from the discussion above concerning Maclean Bay’s breach of s 901(1) regarding Mrs Williams, authorised a proposal to offer a contract for services to Mrs Williams at some time between 1 and 6 December 2008. Mrs Wells also had knowledge of the contract before it was offered to Mrs Williams. She provided Mrs Robinson with a copy of a proposed contract for Mrs Williams. Mrs Wells authorised Mrs Robinson to offer the contract to Mrs Williams as amended to reflect an extra duty. That contract included within it a representation that it would be a contract for services. Indeed, the document is headed “Contract for Services”. Mrs Wells also knew that, if agreeing to work under that contract, Mrs Williams would perform the same duties as she had performed on and before 1 December 2008 when employed by Maclean Bay and subject to the same direction and control from Maclean Bay as occurred prior to her dismissal by it. The evidence overwhelmingly supports those conclusions. Mrs Wells failed to give evidence to present any contrary view. Given the documentary evidence relevant to this issue and the clear evidence of Mrs Williams, Mrs Robinson and Ms Holmes it is unsurprising that Mrs Wells elected not to give evidence to seek to advance a contrary view.
Breach of s 902(1) and Mr Jeffrey Golding
99 Mr Golding commenced employment with Maclean Bay as a gardener/maintenance worker on 17 March 2008. Mrs Robinson engaged Mr Golding after he answered an advertisement for the position. Maclean Bay dismissed him from that employment in early December 2008. Although engaged as a casual, Mr Golding worked about 32 to 34 hours per week regularly throughout his employment.
100 Mrs Robinson gave evidence that overall Mr Golding’s work was very good. She referred to isolated small matters of criticism such as that he arrived late for work once and he did not wear his Diamond Island shirt on one occasion. She knew Mrs Wells was concerned about the herb garden at the resort but assured her that Mr Golding was “doing his best”. Mr Wells gave some evidence about issues with the herb garden.
101 Mrs Robinson said that she was provided by Mrs Wells a contract for services with Mr Golding’s name on it. Mrs Robinson discussed with Mr Golding the prospect of him becoming a contractor. In the first conversation in which the issue was raised she discussed with Mr Golding the fact that, as a contractor, he would need to arrange his own workers’ compensation insurance. Mr Golding said he could not afford to do so. This conversation occurred a few weeks before Mr Golding’s dismissal.
102 Mrs Robinson said that she raised the issue of Mr Golding becoming a contractor because Mrs Wells had asked her to do so. Mrs Robinson gave evidence that Mrs Wells said to her, about a month before Mr Golding’s dismissal, words to the effect that, “Jeff will be going on contract”. This occurred in a telephone conversation between the two women.
103 About a week after the first conversation between Mrs Robinson and Mr Golding on the topic of Mr Golding becoming a contractor, there was a second conversation between them on that topic. Mrs Robinson said that during that conversation Mr Golding told her that he could not afford insurance and was concerned about what would happen if he had an accident. Mrs Robinson researched the price of relevant insurance policies and said, “they were all coming through more than what he was even going to get a week”. Mrs Robinson said the whole issue of Mr Golding becoming a contractor was “left up in the air” because Mr Golding could not afford the insurance. Mrs Robinson said, in her evidence, that:
I couldn’t say anything to him that was going to keep him as an employee so we didn’t talk about it. There was nothing else to say.
104 About the time that Mrs Robinson discussed the question of insurance with Mr Golding she received from Mrs Wells, in Brisbane, a faxed version of a contract for services for Mr Golding. She arranged for Ms Holmes to give Mr Golding a copy. Ms Holmes told Mrs Robinson that Mr Golding had torn the document up and thrown it in a bin.
105 A copy of the proposed contract for Mr Golding is Exhibit AC in the proceeding. It is headed “Contract for Services”. Its commencement date is 1 December 2008. It lists four “services” which the “contractor” is to provide. Those four “services” list the functions Mr Golding performed as an employee of Diamond Island. They were:
1. GENERAL GROUNDS MAINTENANCE FROM TIME TO TIME
2. MAINTENANCE OF BBQ ENCLOSURE AND BIN AREAS
3. MINOR REPAIRS IF REQUIRED WHERE REQUIRED
4. ASSISTANCE TO RESORT STAFF WHEN REQUIRED FOR FUNCTION SETUP, REMOVAL AND GENERAL CLEANUP
The balance of the document provided:
You are an independent contractor and your attendance is as required by Resort Manager from day to day PROVIDING ALWAYS that we undertake to provide work for you nonexclusively for an initial term of THREE MONTHS. Thereafter a new contract is anticipated to be entered into by agreement for further periods to be decided.
It is agreed herein that both you and the Resort are at liberty to enter into other contracts for the same work at any time.
Please provide an invoice to Management weekly including your ABN and bank account details.
Please also provide evidence of Public Liability Insurance with your first invoice.
REMUNERATION: $8,100 for a twelve week contract, paid by equal weekly installments of $725.
106 Mr Golding said he was shown a contract dated 1 December 2008. That document was in the form of Exhibit AC as set out above. Ms Holmes gave evidence that she gave the document to Mr Golding and that Mr Golding destroyed the document. Mr Golding gave evidence that a day or so later he was told that there was no more work for him at the resort. He said that he had to contact the police to be allowed access to the resort to collect his personal belongings and final pay.
107 Mr Golding said that he had discussed with Mrs Robinson, after she raised the matter, the topic of employees such as him going on contract. He said that he told Mrs Robinson that he could not afford insurance or to pay his own income tax and superannuation.
108 Ms Holmes gave evidence that Mrs Wells told her that she wanted Mr Golding to be on a contract and spoke to her about all employees becoming contractors. Mrs Holmes spoke to Mr Golding about what was involved in becoming a contractor. Mrs Holmes said that Mr Golding did not want to go on a contract. She said that in the first week of December 2008, Mrs Wells told her that she didn’t want Mr Golding at the resort any more. Ms Holmes then contacted Mr Golding and told him that the resort no longer had a position for him. Ms Holmes said that Mrs Wells asked her to dismiss Mr Golding.
109 In her record of interview given to officers of the applicant Mrs Wells admitted that she told Mrs Robinson to get rid of Mr Golding. She said she did so after visiting the resort and finding the herb garden in an unsatisfactory state. Mrs Wells said she found the garden in “an absolutely disgusting condition” and after that said to Mrs Robinson, “you have to get rid of him”.
110 Mrs Wells admitted that a contract was drawn up for Mr Golding but said she didn’t know if it was ever presented to him. Although, Mrs Wells admitted that the document “was faxed down there”. She said the document came from “some old precedent…that would have been on our systems…or found it somewhere….”
111 Mrs Wells said that Mrs Robinson would have approached Mr Golding about becoming a contractor when it was put to her that Mr Golding was terminated because he refused to enter a contract for service arrangement, Mrs Wells replied:
No, that’s not true and he – I’m sure you could go back to him and ask him about the, um, herb garden incident…and I’ve also got my husband and I’ve got Julie [Robinson] and there’s probably other people that heard me going on and could verify my absolutely um, disappointment in the herb garden.
112 Assuming Mrs Wells was unhappy about the herb garden and with Mr Golding’s work on it, I am not satisfied that that was the sole reason for her dismissal of him, as she seeks to portray in her record of interview. She did not give sworn evidence. The Court does not have the benefit of her input on the issue, but the unchallenged evidence of Mrs Robinson is to the effect that Mr Golding’s efforts with respect to the herb garden did not justify his dismissal. I find that Mrs Wells’ dominant purpose in terminating Mr Golding was that he did not want to enter into a contract for services. Maclean Bay, as at 1 December 2008, wanted Mr Golding to enter into a contract for services, performing the same work that he was performing for it as an employee. He refused to do so. Mrs Wells then directed Ms Holmes to terminate his employment. The “herb garden” issue was a convenient excuse of relevantly recent invention engaged in by Mrs Wells, whose account, given to the applicant’s officers about the circumstances of Mr Golding’s dismissal, was equally as misleading as the account she gave of Mrs Williams dismissal.
113 If one can be critical of Mrs Wells such criticism pales into insignificance when compared to the sworn evidence of Mr Wells on the topic of Mr Golding’s dismissal. Mr Wells’ evidence on this topic defies belief and is entirely the product of recent invention. According to Mr Wells he was never happy that Mr Golding was employed and not happy with Mr Golding’s work at the resort. His lack of happiness with Mr Golding was not conveyed to or shared by Mrs Robinson who was the manager on the spot, and who gave evidence that, apart from the minor blemishes referred to at [100], Mr Golding was a good employee.
114 Mr Wells gave unsatisfactory evidence about Mr Golding’s worth as an employee verging from “useless” to “half useless”. In respect of the complaint that he would have preferred Mrs Robinson to engage another applicant for that position, Mr Wells admitted that he didn’t request Mrs Robinson to employ anyone with particular qualifications. Mr Wells gave unsatisfactory evidence about alleged improper electrical work, use of a mower and a chainsaw by Mr Golding. None of these criticisms was put to Mr Golding. Mrs Wells did not claim to be motivated by them in what she said was her decision to dismiss Mr Golding.
115 Mr Wells gave his evidence in a most unconvincing manner. He gave the Court the strong impression that he was prepared to say anything he thought might assist Maclean Bay’s case, without regard to the truth of that evidence. Equally disturbing was counsel for the respondents inquiring of Mr Wells in examination in chief whether Mr Golding’s “state of health” formed any part of the decision to terminate him. This question was withdrawn after the Court’s warning to counsel for the respondents of the consequences in law for Maclean Bay of an affirmative answer.
116 The most disturbing part of Mr Wells’ evidence was his attempt to justify the dismissal by reference to a letter on Mr Golding’s personnel file to the effect that Mr Golding had supervised visits with his daughter. Mr Golding was not cross-examined on this issue. This was a particularly tawdry and disturbing attempt to seek to disguise the predominant reason for the dismissal which was that Mrs Wells was not happy that Mr Golding refused to become an independent contractor.
117 Despite Mr Wells’ evidence about concerns he had with Mr Golding doing electrical work, Mr Wells admitted that he did not say anything to Mr Golding about that issue. This is another recent invention by Mr Wells. I accept the evidence of Mrs Robinson that she did not report to Mr Wells that Mr Golding performed electrical work.
118 If Mr Golding was as “useless” or “half-useless” as Mr Wells said, one might ask why was Maclean Bay preparing a contract for him to enter into on 1 December 2008. It is noteworthy in Mr Wells’ unreliable evidence that none of it supports the view that Mrs Wells dismissed Mr Golding because of the herb garden issue.
119 Mr Wells’ evidence with respect to Mr Golding is particularly unreliable. Where it conflicts with other evidence, I reject it. Mrs Wells, according to Mrs Robinson and Ms Holmes, was the decision maker in respect of the dismissal. She made that decision predominantly because Mr Golding would not perform the work he did as an employee under a contract for services.
120 Maclean Bay has breached s 902(1) in respect of Mr Golding. Mrs Wells, as the decision maker, is accessorily liable.
Alleged breach of s 792 of the WR Act in respect of MR Golding by Maclean Bay
121 Mr Golding was dismissed by Maclean Bay. Ms Holmes effected the dismissal. She told Mr Golding, “we no longer have a position for you at the resort”. Mrs Wells instructed Ms Holmes to dismiss Mr Golding. Ms Holmes said this happened one day in early December 2008. Mr Wells gave evidence that he considered Mr Golding “had to go”. However, he remained employed at the resort notwithstanding that view until Mrs Wells instructed Ms Holmes to dismiss him in early December 2008. I reject Mr Wells’ evidence that he made a joint decision with Mrs Wells to dismiss Mr Golding. Ms Holmes only dealt with Mrs Wells concerning the dismissal. If it was a joint decision there is one person who could have sworn or affirmed to that but has chosen to remain silent, and that is Mrs Wells.
122 I am not satisfied that Maclean Bay has discharged its onus of proving that the sole or dominant reason for the dismissal of Mr Golding was that he was entitled to the benefit of the NAPSA. This is why Mrs Wells wanted him to become a contractor. Even without the benefit of s 809(1) of the WR Act, the applicant is entitled to a finding in his favour that the dismissal of Mr Golding was effected for the dominant reason that Mr Golding was entitled to the benefit of the NAPSA. Being an employee of Maclean Bay, he had that entitlement by operation of law. Removal of that entitlement and the conversion of Mr Golding into a contractor was the desire and aim of Maclean Bay. When Mr Golding would not facilitate that desire, Maclean Bay terminated his employment.
123 For the forgoing reasons I am satisfied that Maclean Bay dismissed Mr Golding in breach of the provisions of s 792(1)(a) of the WR Act by reason of the prohibited reason contained in s 793(1)(i). I am also satisfied that Maclean Bay has not proved that the s 793(1)(i) reason was not its sole or dominant reason for the dismissal. Irrespective of s 809(1), I am satisfied that in Maclean Bay’s decision to dismiss Mr Golding, the dominant reason actuating it was that Mr Golding was entitled to the benefit of the NAPSA.
Mrs Kerryn Smith – Alleged breach of s 900(1) by Maclean Bay
124 Section 900 of the WR Act is headed: “Misrepresenting an employment relationship as an independent contracting arrangement”.
Section 900(1) provides:
(1) A person contravenes this subsection if:
(a) the person is a party to a contract with an individual; and
(b) the person makes a representation to the individual that the contract is a contract for services under which the individual performs work, or is to perform work, for the person as an independent contractor; and
(c) the contract, as in force at the time of the representation, is a contract of employment under which the person is the employer of the individual, rather than a contract for services under which the individual performs work as an independent contractor.
125 Maclean Bay employed Mrs Smith at the resort from 12 December 2006 until 12 February 2009. She worked in the restaurant and reception area of the resort. Maclean Bay first engaged Mrs Smith as a casual employee from 12 December 2006 until 3 September 2007. Mrs Smith was offered full time employment on 4 September 2007. She commenced full time employment on 10 September 2007 and worked in that capacity until 12 February 2009.
126 By letter dated 26 January 2009, Mrs Smith resigned from her “full-time position at Diamond Island resort”. In that letter Mrs Smith said that she:
… would consider some part-time work on a regular basis, in the office/reception area of Diamond Island, and when large groups attend workshops or conferences …
127 In her affidavit tendered in the proceeding, Mrs Smith said that after her resignation (some time in mid-February 2009) she telephoned Mrs Robinson and a conversation occurred to the following effect:
Mrs Smith: Julie, as I indicated in my letter I would like to continue working at the resort but I want to work less hours. Is this going to be possible?
Mrs Robinson: We want you to come back but Wendy has said that the only way that you’ll be able to come back is as a contractor. To do this you will need to get an ABN number.
Mrs Smith: OK, I will organise that.
128 In her evidence in chief Mrs Robinson said that Mrs Wells was happy to have Mrs Smith back at the resort, “but the only conditions would – were on the contract basis”.
129 Mrs Smith obtained an ABN from the Australian Taxation Office. The registration date is 24 February 2009. Her “business” is described as that of a “sole trader”. She did not use the ABN for any purpose not related to the resort.
130 On 19 February 2009, Mrs Robinson provided Mrs Smith with a document entitled “Diamond Island Resort Contractor’s Agreement”. A copy of the document was tendered in the proceeding and is Exhibit AG.
131 Mrs Smith said in her affidavit that she worked at the resort from 2 March 2009 until 9 April 2009. She filled out time sheets recording the number of hours which she worked. Mrs Robinson provided her with weekly invoices generated by Maclean Bay.
132 Mrs Smith worked, in March/April 2009, at the times she was directed to by Mrs Robinson. She had no choice as to when she worked. The same applied when she was engaged as an employee, prior to her resignation. She did not provide services to any entity other than Maclean Bay. When she recommenced work in March 2009 she wore a “Diamond Island Resort” shirt, as she had done when engaged as an employee. It was the same shirt she had previously worn. She did not provide any equipment or other items to perform her duties. She was paid $25 per hour.
133 Mrs Smith’s contract (Exhibit AG), required her to hold the position of Personal Assistant to the Resort Manager. It also obliged her “to assist staff” as required by management and “provide limited spa services when requested”.
134 Mrs Robinson gave evidence that she did not require Mrs Smith to provide her with an invoice. Mrs Robinson also gave uncontradicted evidence that in the period from early March 2009 until 9 April 2009, Mrs Smith:
worked in the front office of the resort;
performed “exactly the same” duties as she performed when she was engaged as an employee;
worked in accordance with a roster produced by Mrs Robinson;
performed the precise duties and work determined for her by Mrs Robinson;
did not provide any equipment or materials in performing her work; and
wore a Diamond Island shirt.
135 For the purposes of s 900(1)(a) of the WR Act it is not in contest that Maclean Bay was a party to a contract with Mrs Smith from 2 March 2009 until 9 April 2009.
136 For the purposes of s 900(1)(b) of the WR Act the applicant relies on the representation made in a telephone conversation between Mrs Robinson and Mrs Smith sometime between 12 and 19 February 2009 to the effect that the only way Mrs Smith would be able to resume working at the resort would be if she was engaged as a contractor and obtained an ABN for that purpose. The making of that representation is not contested.
137 The representation made in the telephone conversation was that the contract was one for services under which Mrs Smith “is to perform work” for Maclean Bay as an independent contractor. Therefore s 900(1)(b) is satisfied.
138 There is a contest about whether s 900(1)(c) is satisfied. Counsel for Maclean Bay stresses the words “as in force at the time of the representation” in s 900(1)(c). He contends that the contract did not come into force until 2 March 2009, so s 900(1)(c) is not breached. Counsel for the applicant accepts that the effect of s 900(1)(c) is that the contract must be in existence “at the time of the representation”. However he contends that “the time of the representation” is not the same as “when the representation is made”. He submits that s 900(1)(b) deals with when a representation is made but does not do so in any temporal way. He relies on authority to support the proposition that the effect of a representation is not necessarily confined or limited to when it is made. There is much force in those submissions. The representation did not cease to exist when the contract came into force. The reality was that Mrs Smith was back at work because she was consenting to be engaged under a contract for services (albeit a sham as she continued to work as an employee would in performing her duties). The representation continued to apply right up to the making of the contract and beyond. The representation had “a continuing effect during the period of time following the date upon which [it] was made”; see Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding AG [2004] NSWSC 149, per Einstein J at [284]. The representation may also be described as a continuous one in the sense discussed by Allsop J in McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230 at [148]. There his Honour said:
Another form that a so-called continuous representation might take is that in all the circumstances it can be taken as being repeatedly or even continuously made, that is remade. It is unproductive to seek to categorise or label such circumstances. It is enough to say that the infinite possibilities of human conduct might give rise to it. The representation so repeatedly or continuously made could be one as to a present state of affairs or, conceivably, as to a future matter. In the former case, such a representation would be falsified by proof of the state of facts at any point along the relevant time continuum. In the latter case, such a representation would be falsified by proof of the lack of reasonable grounds at any point along the relevant time continuum.
139 I find that the representation made in the telephone conversation continued to have effect after the making of the contract on 2 March 2009. I accept the submission of counsel for the applicant that the representation was made as to future matters. It concerned the possibility of Mrs Smith coming back to work at the resort after the conversation. It centred on her only doing so as an independent contractor with an ABN.
140 The second representation relied on by the applicant is the clause in the contract [Exhibit AG] which expressly stated that Mrs Smith “is an independent contractor” and described her as “the contractor”. That representation was made to Mrs Smith before the contract was formed. It continued to apply on its making and thereafter until 9 April 2009 by constituting a term of the contract.
141 The third representation is the conduct of Maclean Bay in generating weekly invoices from 2 March 2009 until 9 April 2009 which referred to Mrs Smith as “the vendor” with the resort mentioned under the heading “shipped to” and a purchase number. The provision of those invoices via Mrs Robinson to Mrs Smith also forms part of this representation.
142 Counsel for the respondents relies on an absence of evidence as to precisely when the invoices were generated and provided to Mrs Smith. This submission is rejected. It ignores the evidence of Mrs Smith that weekly invoices were generated by Maclean Bay and provided to her by Mrs Robinson. Those invoices (or a copy thereof) are in evidence as Exhibit AH and are dated 3 March, 9 March, 23 March, 30 March and 6 April 2009 respectively. The invoices refer to an hourly rate of pay in respect of a weekly period. The court is entitled to, and does, infer that the invoices were provided to Mrs Smith on or about the dates they bear.
143 I also reject the submission of counsel for the respondents that Mrs Robinson had no express or apparent authority to provide the invoices to Mrs Smith. Mrs Robinson was, at all material times, the manager of the resort. All her actions with respect to staff were the actions of Maclean Bay. Her job was, in part, to be a conduit between management and the workers at the resort. Mrs Robinson did not provide the invoices to Mrs Smith as part of some frolic of her own. To suggest as much is patently absurd. No one has gone into evidence on behalf of Maclean Bay to assert that Mrs Robinson had no authority to issue the invoices. Mr Wells gave evidence but did not traverse the topic. Mrs Wells failed to give evidence, without explanation. The providing of invoices to employees was part of a charade to make them look like independent contractors and was part of the business practice of this employer. Mrs Robinson’s role in providing the invoices to Mrs Smith was done in the course of carrying out such business practice.
144 It is beyond doubt that as the manager of the resort Mrs Robinson was clothed with the authority to deal with staff. That was an integral part of her role. Mrs Smith was entitled to believe that in dealing with Mrs Robinson as the manager of the resort that Mrs Robinson had the authority to so act.
145 Section 826(2) of the WR Act applies to Mrs Robinson’s conduct to make it the conduct of Maclean Bay. She engaged in conduct on behalf of the company as an employee of it within her actual or apparent authority. That conduct is also taken to have been engaged in by the company. Justice Heerey considered the operation of s 826 in Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33. In Jordan, Heerey J rejected a submission to the effect that a manager had engaged in a frolic of his own in dealing with staff. At [109] to [111], his Honour observed that the normal functions of the manager were to deal with staff, negotiate their terms of employment and arrange their rosters and that, for the purposes of s 826, the manager was the company for those employed by it; see at [110]. Mrs Robinson as the manager in the instant circumstances was in a like position. It must be remembered that, in respect of Mrs Smith and others in the period March to April 2009, Mrs Robinson had the responsibility for the day to day running of the resort.
146 Further as counsel for the applicant submits the invoices were an essential part of the fulfilment of Mrs Wells’ desires to have staff “engaged on contract”. It was an integral part of a sham arrangement. There is no dispute, on the evidence or pleadings, that Mrs Robinson did not exceed her actual or apparent authority in sending the contract [Exhibit AG] to Mrs Smith. In fact, the evidence before the Court on this issue is that Mr Barnett, the company accountant, telephoned Mrs Robinson to enquire why she was generating the invoices. Mrs Robinson said she did so in order that the staff had a pay slip to allow them to know how much was going into their bank accounts. She said that Mr Barnett’s reply was “right, ok, no worries”. This evidence was not contradicted.
147 Mr Barnett gave evidence that he “created” the form for “recipient-created tax invoices” in 2000 and then later adapted it for use at the resort. He could not recall a conversation with Mrs Robinson about whether contractors were getting invoices from Maclean Bay. However, Mr Barnett said he was aware in some instances that invoices were being provided but said that he expected the contractors would provide an invoice to the company. He referred to the workers in his evidence as “suppliers”. Although he preferred “suppliers” to provide their own invoices he said he would have “no problem” if the resort received invoices even if they were recipient created invoices as long as the tax office had been informed.
148 All the evidence concerning the circumstances of the recipient created invoices supports the view that Mrs Robinson prepared and delivered them as part of her duties as business manager in the course of Maclean Bay’s method of attempting to show the existence of independent contractual relationships with its employees.
149 I also reject the submission of counsel for the respondents that, for the purposes of s 900(1)(c), the Court is unable to take into account circumstances extraneous to actual words of the contract in determining whether the relationship was an independent contractual one between Maclean Bay and Mrs Smith or an employer/employee relationship.
150 It is trite law that one considers the entire relationship between the two relevant parties in determining the nature of that relationship; see Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [24]. Mrs Smith, when she returned to work at the resort in March 2009, was an employee. She worked subject to the directions of Mrs Robinson as she had in her previous time as an employee at the resort. She was subject to control by Mrs Robinson and ultimately Mr and Mrs Wells. She did not carry on a business of her own. The contract provided for her was a sham designed to disguise the real relationship between the parties. It involved Maclean Bay engaging in a form of exploitation against a person who had no power to raise any protest about the basis upon which she was being re-employed.
151 Counsel for the respondents also submits that the provision of spa services in the contract supports the existence of an individual contractual arrangement. This argument is arid as no spa services were provided and Mrs Smith was never requested to provide them.
152 For the above reasons the Court finds that Maclean Bay breached s 900(1) of the WR Act by making three representations to Mrs Smith that the contract under which it re-engaged her was one for services in which she was to perform work as an independent contractor. So much was a sham. The contract at the time of the continued operation of those representations was, in reality, one under which Maclean Bay was the employer of Mrs Smith. It was not a contract for services when considered in the context of what work was actually performed pursuant to it and the manner of its performance. Part 22 of the WR Act is headed “Sham Arrangements”. It accurately describes Maclean Bay’s conduct with respect to its contract with Mrs Smith and the representations which preceded it and continued in operation during its term in March and April 2009.
Alleged breach of s 900 by Maclean Bay concerning the Kubanks
153 Mrs Janette (Jan) and Miss Alison Kubank (“the Kubanks”) were employed at the resort as laundry workers. They are mother and daughter respectively. Alison has an intellectual disability. Jan acted as her agent in her dealings with Maclean Bay.
154 The Kubanks started work at the resort in the laundry in November 2004. From that time until 19 April 2009 they were employed as casual laundry workers. Jan usually worked up to 15 hours per week and Alison usually worked about 25 hours per week in the tourist season and less in quieter periods.
155 Jan gave evidence of the work the Kubanks performed as follows:
We would take the laundry from the rooms and then we would take it back to the laundry, we would wash it – sort it, wash it, put it through the dryers, iron it and put it – place it back on the shelves.
156 Jan gave evidence that, in or about March 2009, Mrs Wells spoke to her about Alison and her becoming contract workers. She said:
Wendy…suggested it was only fair that we should go on contract because everyone worked for her on contract, and it was only fair because all the others had to.
157 Jan went on to give evidence that Mrs Wells said to her that “you will need to obtain an ABN number”. She said the conversation occurred in person in the laundry, in Alison’s presence. Jan said her response to Mrs Wells was “Okay, then”.
158 Mrs Robinson gave Jan two documents some time in March 2009. Collectively they are Exhibit R in the proceeding. The first of them is a contract for Alison. It said:
LAUNDRY SERVICES CONTRACT
Alison Kubank
DIAMOND ISLAND RESORT
Contracted Rate - $19.00 per hour
The Resort requires the Laundry to provide clean linen, towels and supplies to the Resort cleaners and the Resort on a seven day a week basis.
Contractors must ensure tat the laundry fulfils this requirement and are required to attend the resort Laundry as and when requested by management.
All equipment, power and supplies will be supplied by Resort Management and any refills or repairs are to be directed to the Management.
Some laundry will be sent away for services in the sole discretion of Management if required in busy periods.
The Contract offered is for a three month term renewed for a further three month term if the Resort Management agrees the contract has been successfully carried out. You can and may undertake other contracts as you see fit, as long as we receive notice of at least 2 weeks to enable other contractors to be put in place.
COMMENCEMENT DATE
HOURS REQUIRED TO ATTEND WEEKLY
As per Laundry roster –
CONTRACT AMOUNT (3 month amount) This amount will be paid weekly on the provision of an invoice to management each Monday. Each invoice must include your ABN. You are responsible for your own Tax and superannuation requirements. You are covered by the Resort insurance while on the premises. If you are unable to attend when requested please ensure a replacement is arranged by discussion with management as soon as your inability to attend is known.
We trust your time as a contractor will be rewarding and pleasant. All discussions in relation to renewal of this contract or variations are to be directed to Mrs Julie Robinson, Manager.
Signed
CONTRACTOR
MACLEAN BAY P/L
159 Jan’s contract differed only in that it had her name on it and an hourly rate of $21 as the “Contracted Rate”.
160 The contracts were not signed. The Kubanks obtained ABNs. Mrs Robinson generated invoices for them for the period 20 to 26 April 2009. The relationship between Maclean Bay and each Kubank was treated by Maclean Bay as an independent contractual one in that period. Payments were made at the respective “contracted rate” for the work performed. The contracts reflected Jan’s agreement with Mrs Wells to “go on contract”.
161 On 27 April 2009, Mrs Robinson informed Jan that she and Alison were “back onto wages”. Jan gave evidence that there was no difference in the work she and Alison performed at the resort in the period 20 to 26 April 2009 to that performed when working at the resort previously.
162 The applicant contends that Maclean Bay misrepresented the employment relationship of each Kubank as an independent contracting arrangement from 20 to 26 April 2009, in breach of s 900(1) of the WR Act.
163 Maclean Bay submits that s 900(1)(a) has not been satisfied because the contracts [Exhibit R] were not signed and therefore did not come into existence. It contends that the highest the evidence goes is that Maclean Bay agreed with the Kubanks that they should go on contract. That submission is rejected. Jan agreed verbally with Mrs Wells that she and Alison would be engaged at the resort pursuant to an independent contracting arrangement for each of them. They worked from 20 to 26 April 2009 pursuant to that understanding and were paid pursuant to invoices generated by Mrs Robinson which reflected the “contracted rate”. Maclean Bay, after the conclusion of that period reverted to an arrangement where the Kubanks would go “back onto wages”. The conduct of Maclean Bay is consistent with it being a party to a contract with each Kubank as agreed to by Mrs Wells and Jan.
164 Mrs Wells has not given evidence to contradict the evidence of that verbal agreement. Exhibit R reflects the intent of the verbal agreement for each Kubank between Mrs Wells and Jan. In her record of interview with officers of the applicant, Mrs Wells admitted involvement in the arrangement with the Kubanks in the period 20-26 April 2009 by saying in answer to Question 913:
I mean, if there has been some breach by what Julie and I did, which we’re fully able to admit we did, with Jan and Alison, we’re really sorry.
165 Mrs Robinson gave evidence that she discussed the contracted rates referred to in Exhibit R with Mrs Wells and that the contracts were emailed to her from head office in Brisbane. Mrs Robinson said she gave the contracts to the Kubanks at the direction of Mrs Wells.
166 I accept the submission of the applicant that there is no requirement at law that such contracts be executed by the parties. As counsel points out, there was no provision in either contract for, or invitation to, the Kubanks to sign them.
167 Further, the recipient created tax invoices are consistent with Maclean Bay treating its relationships with the Kubanks as independent contractual ones. The invoices refer to “purchase” and “shipping date”. They suggest a commercial relationship. Contrast the payroll advices given to the Kubanks prior to 20 April 2009. They refer to matters which are ordinary aspects of employment including annual salary, classification, superannuation fund and PAYG taxation.
168 It is open to the Court to infer, and I do so, that Maclean Bay and each Kubank intended to enter a contract in the period 20 to 26 April 2009 which differed from the previous relationship between them. There was a contract between Maclean Bay and each Kubank. Section 900(1)(a) has been satisfied.
169 Section 900(1)(b) has also been satisfied. Three representations were made to the Kubanks that the contract was one for services under which each of them was to perform work as an independent contractor. The first was Mrs Wells’ statement to the effect that it was “only fair” that the Kubanks became contract workers because everyone else at the resort had become contract workers. The second is the description of the Kubanks in Exhibit R as “contractors”. The third is the production by Maclean Bay of recipient created invoices (which are Exhibit S in the proceeding).
170 I reject the submission of Maclean Bay that Mrs Robinson had no authority to create the invoices. The arguments raised on this issue and the answers thereto are not materially different from those in the discussion of Mrs Robinson’s authority with respect to Mrs Smith discussed at [143]. I adopt that analysis here. Additionally, there is the concession by Mrs Wells in her record of interview to the effect that how she and Mrs Robinson together dealt with the Kubanks was wrong.
171 Section 900(1)(c) is satisfied. At the time of the representations, during the currency of the contracts, the contracts were in reality ones for employment. The Kubanks performed the same laundry work that they previously had performed when they worked between 20 to 26 April 2009. The arrangement to make them contract workers was a sham arrangement designed to treat them as independent contractors when they were in reality employees. The Kubanks remained subject to the control of Maclean Bay. They worked exclusively for Maclean Bay. They did not bring their own equipment. Maclean Bay recognised its folly and ceased to have the agreements apply to the Kubanks from 27 April 2009 onwards.
172 Having regard to the foregoing, I am satisfied that Maclean Bay has breached s 900(1) of the WR Act in respect of the Kubanks.
The HOUSEKEEPERS/CLEANERS
(i) Background
173 Maclean Bay employed the following people in the table below at the resort as housekeepers/cleaners for the periods set out:
Employee Period of Employment
Robin Taylor 8 March 1992 to 10 December 2008
(Head Housemaid since 2003)
Sarah Harrison April 2008 to 10 December 2008
Lucy Richardson December 2006 to 10 December 2008
Rebecca Lord 8 January 2008 to 10 December 2008
174 In the period September to October 2008 Mrs Wells made a decision that housekeeping and cleaning duties done at the resort by the abovementioned employees (“the housekeepers”) would be performed by a cleaning contractor and when the cleaning contractor was engaged the housekeepers’ services would no longer be required. She did not inform Mrs Robinson of this until 10 December 2008.
175 In early December 2008, Mrs Robinson held a meeting with the housekeepers. All attended except Ms Lord. The housekeepers asked Mrs Robinson to arrange a meeting with Mrs Wells to discuss her intentions with respect to the future for housekeeping work at the resort.
176 A second meeting occurred on Wednesday, 10 December 2008 with Mrs Wells, Mrs Robinson, the housekeepers and some other resort staff. The following occurred at the 10 December 2008 meeting:
Mrs Wells confirmed that cleaning work was to be contracted out;
Mrs Wells expressed willingness to give housekeepers’ details to the contractor for it to decide whether it wished to engage them; and
Mrs Wells said the contractor would start “some time the next week”.
177 After the 10 December 2008 meeting the housekeepers left the resort and did not return to work at the resort thereafter.
(ii) Alleged breach of s 792(1)(a), (b) and (c) concerning the housekeepers
(a) Conduct prior to 10 December 2008
178 It is not in contest that in or about September or October 2008, Mrs Wells decided that the housekeeping and cleaning duties undertaken by the housekeepers would in the future be performed by an external cleaning contractor. As a consequence, when the cleaning contractor commenced to provide services at the resort, Maclean Bay would cease to employ the housekeepers.
179 The applicant submits that certain conduct by Maclean Bay in relation to the housekeepers before the 10 December 2008 meeting contravened s 792(1)(a), (b) or (c) in that it involved the following overt acts:
a threat to dismiss the housekeepers;
an injury in the employment of the housekeepers or a threat to so injure; or
a prejudicial alteration to the position of each housekeeper or a threat to that effect.
180 The prohibited reason relied on was that the housekeepers were entitled to the benefit of the NAPSA; see s 793(1)(i) of the WR Act.
181 The applicant contends that the contravening conduct was engaged in by Mrs Robinson as resort manager. The applicant alleges that Mrs Robinson, on behalf of Maclean Bay, engaged in the contravening conduct by telling housekeepers that they would have to go “on contract”. This meant, so the argument runs, that Maclean Bay threatened to dismiss the housekeepers and/or injured them in their employment by subjecting them to up to two months of uncertainty about their employment at the resort.
182 Mrs Robinson gave evidence that about one month before the 10 December 2008 meeting, she told the head housekeeper, Mrs Taylor, that “everybody is going on contracts”. It was not until 10 December 2008 that Mrs Wells told Mrs Robinson that she wanted to engage an external cleaning contractor. In her conversation with Mrs Taylor, Mrs Robinson asked Mrs Taylor to speak with the other housekeepers who could see Mrs Robinson about the matter, if they wished.
183 Mrs Taylor gave evidence, in her unchallenged summary of evidence, of a conversation with Mrs Robinson in mid October 2008 in which Mrs Robinson said to her:
Wendy has told me that all of the cleaning staff have to get ABN numbers and became contract workers. Wendy has said that if cleaning staff don’t become contractors, they will lose their jobs.
184 Mrs Taylor’s own preference was to remain as an employee and not to become a contractor. She observed that other housekeeping staff were also worried about becoming contractors.
185 Ms Harrison gave oral evidence in the proceeding. In that evidence Ms Harrison said that Mrs Robinson spoke to her one week before the 10 December 2008 meeting about contract cleaners coming in or the possibility that the housekeepers would be asked to be contract cleaners themselves. She was uncertain as to which of those two ways Mrs Robinson put the matter to her.
186 In her uncontradicted witness statement summary, admitted into evidence as Exhibit D, Ms Lord said that she was told by Mrs Robinson, as were other housekeepers, that she needed to get an ABN and arrange for insurance. She said that she and other housekeepers were anxious about job security and asked Mrs Robinson to arrange the meeting with Mrs Wells which was held on 10 December 2008.
187 The primary submission of the applicant in respect of the pre-10 December 2008 conduct of Maclean Bay concerning the housekeepers is that Mrs Robinson’s communication to them to the effect that they would have to go on contract to keep their jobs at the resort, including obtaining ABNs and insurance, constituted an alteration to the position of the housekeepers to their prejudice. For the reasons which follow that submission is accepted.
188 The predecessor provision to s 792(1)(c) of the WR Act was described by Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4] as:
a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
189 Telling employees that they will only be able to continue in their jobs if they became contractors and organise ABNs, insurance and other aspects of a supposed independent contractual relationship constitutes an adverse affection or deterioration in an advantage previously enjoyed by them. The advantage was security in employment as regular casuals subject to the ordinary incidents of an employment relationship with their employer and subject to the NAPSA. The housekeepers were engaged as regular casuals in the sense described in Ryde-Eastwood Leagues Club v Taylor (1994) 56 IR 385 at 401-402, Hamzy v Tricon International Restaurants (2001) 115 FCR 78 at [38], Melrose Farm Pty Ltd v Milward (2008) 175 IR 455 at [106] and [110]. See also Australian Workers Union v Johnson Matthey (Aust) Limited (2000) 171 ALR 410 at [53] to [56]. See the discussion of this issue at [14] to [15] above.
190 The housekeepers were employed at the resort pursuant to a regular and systematic roster system over a weekly or fortnightly period. It is not to the point that their rostered hours varied depending on whether it was high tourist season or otherwise. It was not work performed on a spasmodic or ad-hoc basis or which depended on the availability of work on any given shift. There is no evidence that any housekeeper ceased to be employed during the low season for tourists. Ms Richardson, in particular, worked in 2008 during the high tourist season on weekends and when her university commitments allowed. The housekeepers had a legitimate expectation of continuing employment at the resort. Mrs Taylor gave specific evidence to that effect. Ms Richardson had a valid expectation of continuing engagement throughout the summer of 2008-2009 until she resumed her studies.
191 I reject the submission of Maclean Bay that the statements of Mrs Robinson were merely the announcement of a future intention. On the contrary the statements were clear and firm and amounted to advice to get an ABN and insurance and prepare to sign a contract or not work at the resort any longer.
192 As the Court is of the view that the actions of Mrs Robinson, on behalf of Maclean Bay, constituted an alteration to the position of the housekeepers to their prejudice, it is necessary to consider whether those actions constitute overt acts of the kind referred to in s 792(1)(a) or (b) of the WR Act.
193 It is now necessary to consider if the breach of s 792(1)(c) was made for the prohibited reason contained in s 793(1)(i), that is, because the housekeepers had the benefit of the NAPSA. Under s 792(4), it must be shown by the applicant that that prohibited reason was the sole or dominant reason for the overt act taken in breach of s 792(1)(c).
194 Under s 809(1), for the reasons explained at [82] above, the onus lies on Maclean Bay to establish that the sole or dominant reason for the breach of s 793(1)(i) was not that the housekeepers had the benefit of the NAPSA.
195 Mrs Robinson’s conduct resulted in the breach of s 792(1)(c). She engaged in such conduct as the resort manager with the actual and/or apparent authority of Maclean Bay as the employer. Mrs Robinson engaged in that conduct at the direction of Mrs Wells pursuant to the strategy of Maclean Bay, decided in September-October 2008, that all casual staff would become contractors. Mrs Robinson dealt with Mrs Wells in respect of giving effect to that strategy by dealing with employees to arrange their transition to contractor status. I am satisfied that Mrs Wells was the sole decision maker in respect of the conduct which contravened s 792(1)(c) of the WR Act. Mrs Wells has chosen not to give evidence to rebut the presumption that the contravening conduct was taken for the reason that the housekeepers were entitled to the benefit of the NAPSA. I infer that the unexplained decision not to call Mrs Wells was because she would not have assisted Maclean Bay’s case in submitting that the alleged prohibited reason was not the sole or dominant reason for the contravening overt act of prejudicial action. This analysis, as counsel for the applicant submits, applies with equal force if Mr Wells is considered to have been a joint decision maker with Mrs Wells in respect of the infringing conduct. That is because the evidence supports the view that, at the very least, Mrs Wells participated in the decision to require the housekeeping staff to become independent contractors and to require Mrs Robinson to implement that decision and tell the housekeepers that they would have to become contractors to keep working at the resort. In so saying, I do not resile from my primary view that Mrs Wells alone made the decision.
196 There is no acceptable evidence to the effect that Mr Wells made that decision jointly with Mrs Wells, as distinct from a later decision to decide to engage an external contract cleaner or cleaning company. Mr Wells’ evidence does not deal with him being a party to the decision made by Mrs Wells to instruct Mrs Robinson to tell the housekeepers they have to become contractors to stay working at the resort.
197 As the sole decision maker was not called to give evidence of the reason for that conduct, I find that Maclean Bay has not satisfied the onus placed on it by s 809(1), when read with s 792(4), in proving that the prohibited reason in s 793(1)(i) was not the sole or dominant reason for Maclean Bay’s conduct in altering the position of housekeeping staff to their prejudice.
198 As a result of the foregoing discussion the Court finds that Maclean Bay breached s 792(1)(c) of the WR Act in informing house keeping staff that they would be required to become independent contractors to remain working at the resort.
(b) 10 December 2008 conduct
199 On 10 December 2008, a meeting occurred between staff at the resort, including housekeeping staff and Mrs Wells. At that meeting Mrs Wells confirmed that a contract cleaner was to be engaged to do cleaning and housekeeping work at the resort. She said that she expected the contractor would commence “the following week”. Mrs Wells also said that she was willing to give the housekeepers’ names and addresses to the contractor for it to decide whether it wished to use their services at the resort.
200 The effect of the above statements by Mrs Wells was that Maclean Bay was advising its regular casual housekeepers that their employment would come to an end the following week. They were all regular casuals in the Ryde-Eastwood sense and had an expectation of on-going employment in accordance with the usual weekly or fortnightly roster.
201 The notice of termination of the employment of the housekeepers occurred between 10.30 am and 11.00 am on 10 December 2008 during the course of their shifts as rostered over a period of a fortnight at that time.
202 The effect of the above analysis of evidence is that Maclean Bay, through Mrs Wells, gave notice of the termination of the employment of the housekeeping staff to take effect some time in the week commencing 15 December 2008. The applicant alleges that the dismissals were effected in breach of s 792(1)(a) of the WR Act for the prohibited reason contained in s 793(1)(i).
203 Mrs Wells was the primary decision maker in the decision to dismiss the housekeepers. Maclean Bay has admitted that Mrs Wells decided that housekeepers and cleaning duties at the resort would in the future be performed by an external cleaning contractor and that when that occurred, the housekeepers would no longer be employed by Maclean Bay.
204 In addition, Mrs Wells was the person who represented Maclean Bay at the 10 December 2008 meeting. Mr Wells did not attend. Further, Maclean Bay has admitted that Mrs Wells was involved in authorising or approving all decisions made concerning staff at the resort. That gave her the power of dismissal, which she was capable of delegating. In the case of the housekeepers she exercised that power herself.
205 Mr Wells gave unsatisfactory evidence about Maclean Bay’s decision to introduce cleaning contractors. Much of his evidence, under cross-examination on this topic, involved him seeking to avoid answering the precise question asked of him. Mr Wells gave incredible evidence on this topic. Despite the preponderance of the evidence concerning the pivotal role of Mrs Wells on staff issues and the admissions of Maclean Bay referred to above, Mr Wells said in the context of engaging external cleaning contractors:
I think the original [decision] came from me, because I’m the one that always employed contractors.
Mr Wells said the decision was made jointly with Mrs Wells. However, he agreed that an important factor in that decision was that he would not have to worry about superannuation obligations or make income tax deductions.
206 I am satisfied from that evidence that, if Mr Wells was a joint decision maker (which I reject as I consider Mrs Wells was the relevant decision maker) he was actuated predominantly by being able to avoid NAPSA obligations, such as superannuation, in deciding to dismiss the housekeepers and replace them with an external contractor.
207 As a result of the foregoing analysis, I find that Maclean Bay breached s 792(1)(a) of the WR Act by dismissing each member of the housekeeping staff for the sole or predominant reason that each member of the housekeeping staff was entitled to the benefit of the NAPSA.
CONTRAVENTIONS OF THE NAPSA
(i) Introduction
208 The following is not in contest:
on 27 March 2006, the NAPSA came into operation. Its terms and conditions bound Maclean Bay in respect of the employees it employed at the resort;
under cl 34 of Sch 8 to the WR Act, the terms of the Hotels, Resorts, Hospitality and Motels Award made by the Tasmanian Industrial Relations Commission (“the State Award”) as in force immediately before 27 March 2006 were taken to be terms of the NAPSA;
at all material times Maclean Bay has been bound by the NAPSA;
at all material times employees of Maclean Bay have been bound by the NAPSA in respect of work performed within classifications contained in the State award; and
at all material times Maclean Bay was bound by the NAPSA concerning its employment of Mrs Williams, Mr Golding, Mrs Smith, Ms Harrison, Ms Lord, Ms Holmes, Mr Garrett and Mr Griffiths.
(ii) Breach of cl 77(c)(iv) of the NAPSA - Superannuation
209 At all material times, cl 77(c)(iv) of the NAPSA provided:
Contributions
(i) Each employer shall in respect of each eligible full-time and part-time employee as defined, and each eligible casual employee as defined who earns $257.50 or more in a 4 week period, contribute to the scheme of which the employee is a member and to which the employer is bound to contribute pursuant to the relevant Trust or Deed of Adherence an amount equal to 9 percent of the ordinary time earnings as defined, of such employee.
(ii) Where an employee is absent on leave without pay, whether or not such leave is approved, no contribution from the employer shall be due in respect of that employee during and in respect of the period of unpaid absence.
(iii) The obligation of the employer to contribute to the Fund in respect of an employee shall cease on the last day of such employee’s employment with the employer.
(iv) Each employer shall make such contributions monthly for pay periods completed in such month or at such other times and in such other manner as may be agreed in writing between the Trustees of a scheme and the employer from time to time.
210 In respect of Mrs Williams, Mr Golding, Ms Harrison, Ms Lord, Mr Garrett and Mr Griffiths, Maclean Bay has made the following admissions. Before setting out these admissions it should be recorded that Mr Garrett was employed as a chef from early 2004 until 10 December 2008, on a casual basis. Mr Griffiths was employed on the same basis, save that he commenced in early 2007. The admissions were:
1. It was required to make superannuation contributions in respect of each employee mentioned above in this paragraph in accordance with cl 77(c) of the NAPSA; and
2. It did not make such contributions during each month of the employment of those employees.
211 Maclean Bay contends that it was open to it to make contributions other than on a monthly basis. However, there is no evidence that it has entered into any agreement with the trustees of the relevant fund as provided by cl 77(c)(iv). If it had been so it would have been simple for an officer or employee of Maclean Bay to give evidence of that fact. From the absence of that evidence, the Court is able to infer that it has not entered any such agreement. Each contravention of cl 77(c)(iv), as claimed, has been established.
212 The award obligation to pay superannuation contributions monthly must be complied with or those who have that obligation must demonstrate that they have availed themselves of the alternative provided by the award. It is not for the applicant to prove that the employer availed itself of that alternative. It is an easy matter for Maclean Bay in this case to clarify. It has failed to do so.
(iii) Breach of cl 49(g) of the NAPSA – annual leave
213 The applicant submits that Maclean Bay breached cl 49(g) of the NAPSA by failing to pay pro-rata annual leave entitlements on termination to Mrs Smith and Ms Holmes.
214 Clause 49(a) of the NAPSA establishes an entitlement to 28 days paid annual leave. Clause 49(g) provides:
If after one month’s continuous service in any qualifying 12 monthly period an employee leaves his employment or his employment is terminated by his employer, the employee shall be paid pro-rata leave at the rate of 1/12th of his ordinary earnings during his continuous service with the employer, the service being service in respect of which leave has not been granted in accordance with this clause.
215 Clause 71(c) of the NAPSA provides:
Subject to clause 15 – Day Off Coinciding with a Holiday, of this award, all time worked by a weekly employee on a holiday herein prescribed (sic) shall be paid for at the rate of double time and one half for the hours worked, with a minimum of 4 hours additional pay…
PROVIDED that the equivalent of the time worked is also added to the employee’s annual leave or one day in lieu of such public holiday shall be allowed to the employee during the week in which the holiday falls.
216 During the course of her employment with Maclean Bay, Ms Holmes worked for a whole working day (7.6 hours) on 13 public holidays. In accordance with cl 71(c) those 13 public holidays at 7.6 hours per day leads to an additional annual leave entitlement of 98.8 hours. In addition to that entitlement, Ms Holmes otherwise accrued 213.97 hours annual leave. Her full entitlement to annual leave under the NAPSA was 312.77 hours. Whilst employed by Maclean Bay, Ms Holmes was paid annual leave entitlements or took annual leave in respect of 197.6 hours. Upon her termination she was therefore entitled to be paid 115.17 hours of untaken accrued annual leave. Maclean Bay only paid Ms Holmes in respect of 20.456 hours of accrued, unused annual leave on termination. This left a shortfall of 94.714 hours. That shortfall was part of the 98.8 hours owing on termination arising out of the 13 public holidays as affected by cl 71(c) of the NAPSA.
217 Maclean Bay submits that Ms Holmes was not entitled to accrue extra annual leave in accordance with cl 71(c). It contends that this benefit can only be availed of by employees who work on a prescribed public holiday and who agree to be paid at the rate of one and a half times the ordinary rate. That construction finds no support from the plain wording of the clause. The proviso which creates the additional entitlement applies irrespective of whether the employee is paid at double time and one half or by agreement at one and a half times the ordinary rate. The later scenario is not a pre-condition to the operation of the proviso. The proviso applies to the entirety of the first paragraph of cl 71(c). As counsel for the applicant points out the words “the equivalent of the time worked” appearing early in the proviso refer to the actual time worked on a public holiday, irrespective of the rate at which it is remunerated when actually performed.
218 Maclean Bay’s construction of cl 71(g) is entirely misplaced. It failed to pay Ms Holmes her full entitlement to accrued annual leave on termination and has therefore breached cl 49(g) of the NAPSA.
219 The submission in respect of Mrs Smith’s entitlement does not raise any new or additional point. It follows that Maclean Bay has also breached cl 49(g) in respect of its failure to pay her the entitlements she had under the NAPSA in respect of accrued annual leave on her termination.
220 Mrs Smith ceased employment on 12 February 2009. She was then paid in respect of 30.895 hours of accrued, unused annual leave. Her actual entitlement was 64.99 hours. For the whole period of Mrs Smith’s employment she accrued an entitlement of 252.52 hours of annual leave. Maclean Bay submits that Mrs Smith took, or was paid for, annual leave of 258.895 hours. It says that it has no further obligation to her in that regard. In those calculations, Maclean Bay has included an amount of five days’ pay which it said it paid Mrs Smith in early 2009. The days were paid as “days in lieu”. The applicant says there has been no explanation on what basis such “days in lieu” were accrued or how they can be offset against Mrs Smith’s annual leave entitlements.
221 As the applicant contends, it has not been demonstrated as to what the five days were “in lieu of”. If the days were in lieu of public holidays worked it does not mean that the entitlement provided by cl 71(c) to additional annual leave is extinguished. No basis was established for offsetting the five days “in lieu” from Mrs Smith’s annual leave entitlement. She is entitled to the shortfall and cl 49(1)(g) has been breached to that extent.
COMPENSATION
(i) Introduction
222 The parties are agreed that should the Court find that any breaches of the WR Act or the NAPSA, as alleged, are established it should deal only with compensation as sought by the applicant and not concern itself, at this stage, with any issue concerning pecuniary penalty.
223 Section 807(1) of the WR Act provides:
(1) The Court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil remedy provision of this Part:
(a) an order imposing a pecuniary penalty on the defendant;
(b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;
(c) any other order that the Court considers appropriate.
224 Section 807(1)(b) permits the Court to make orders by way of compensation for, amongst other matters, contravention of s 792.
225 Under s 904(2B)(b) of the WR Act a person who is dismissed or threatened with dismissal in breach of ss 900(1), 901(1), 902(1) or 903(1) may be entitled to the benefit of an order of the Court against the contravener for “compensation for loss suffered”.
226 Pursuant to s 719(b) of the WR Act, the Court is able to order an employer to pay to an employee an amount that the employer was required to pay under the terms of an award (including a NAPSA), being an underpayment which the employer has not made good to the employee. No claim for compensation under s 719(b) has been made.
(ii) Mrs Williams
227 The Court has found that Maclean Bay and Mrs Wells contravened s 902(1) of the WR Act in respect of Mrs Williams. The applicant seeks an order that the Maclean Bay pay Mrs Williams compensation under s 904(2B) within 30 days of the making of that order.
228 The applicant relies on the following evidence to support that order. Mrs Williams received $19.262 per hour for wages in respect of some 20 to 25 hours per week. At the time of her termination her expectation was that she would continue working for Maclean Bay at the resort well into the future. She enjoyed working there and Mrs Robinson had no complaints about her work. Mrs Williams was unable to secure other employment until mid-February 2009 despite extensive attempts to do so. In the week after her termination she gave her curriculum vitae to other accommodation establishments in the area without success. She also attempted to find work at several other local establishments, without success. In the 10 week period from her termination until she secured other work, Mrs Williams lost $481.55 per week – based on her average weekly rate of pay at the resort. She is entitled to an order of compensation in the sum of $4,815.50 for her loss suffered as a result of her dismissal in contravention of s 902(1) of the WR Act.
229 The applicant, given the Court’s finding with respect to s 902(1), does not seek an order under s 807(1) concerning the contravention of s 792(1)(a) in respect of Mrs Williams. The applicant also only seeks an order against Maclean Bay under s 904(2B) concerning Mrs Williams.
(iii) Mr Golding
230 The Court has found that the respondents contravened s 902(1) of the WR Act in respect of Mr Golding. It has also found that they breached s 792(1)(a) of the WR Act concerning Mr Golding. The applicant seeks an order that Maclean Bay should pay Mr Golding compensation in the sum of $1,892.10 within 30 days of the making of the order.
231 The compensation order sought under s 904(2B) of the WR Act is based on the following facts. When Maclean Bay dismissed Mr Golding he earned $18.55 per hour. His hours of work were 32 to 34 hours per week. About two to three weeks after his dismissal, Mr Golding found other employment after an extensive search. Mr Golding’s average weekly pay was $630.70. His loss for the two to three weeks of unemployment was about $1,892.10.
(iv) Ms Harrison
232 The Court has found that Maclean Bay contravened s 792(1)(a) by dismissing Ms Harrison. The applicant seeks an order that Maclean Bay pay Ms Harrison $22,035.73 within 30 days of the making of that order. Such an order is sought pursuant to s 807(1)(b).
233 The amount of $22,035.73 is based on the following material before the Court. Ms Harrison’s rate of pay was $19.262 per hour. In the summer peak tourist season she worked, on average, 30 hours per week and 12 to 15 hours in low season. She found temporary cleaning work about 12 months after her termination. She made extensive efforts to find other work during that time. She also commenced her own business during that time, but it made a loss. Her average hours of work were 22 per week over a year. Her average weekly earnings were about $423.76. Her loss for 12 months equals about $22,035.73. She is entitled to an order in that amount.
(v) Ms Lord
234 The Court has found that Maclean Bay dismissed Ms Lord in contravention of s 792(1)(a) of the WR Act. The applicant seeks an order that Maclean Bay pay Ms Lord compensation in the sum of $332.27 within 30 days of the making of the order.
235 That sum is based on Ms Lord’s hourly rate of $19.262, her average working week of 17.25 hours and her failure to find alternative employment for about one week after her dismissal.
(vi) Ms Richardson
236 The Court has found that Maclean Bay dismissed Ms Richardson in breach of s 792(1)(a) of the WR Act. The applicant seeks an order that Maclean Bay pay Ms Richardson the sum of $4,815.50 within 30 days of the making of the order. The order is sought pursuant to s 807(1)(b).
237 The sum claimed is based on an hourly rate of $19.262. In the summer period, Ms Richardson worked at the resort for about 25 hours a week. In the period 1 December to 10 December 2008 she worked 42.25 hours. Before her dismissal on 10 December 2008, Ms Richardson intended to work at the resort until February 2009. She was unable to find alternative employment until the end of February 2009. Ms Richardson, in that period, searched for alternative work in housekeeping, call centre and hospitality work. She was unemployed for 10 weeks. During that period she would have earned about $481.55 per week (at 25 hours per week). She is entitled to compensation in the sum of $4,815.50.
(vii) Ms Taylor
238 Ms Taylor, the Court has found, was dismissed by Maclean Bay in breach of s 792(1)(a). The applicant seeks an order under s 807(1)(b) that Maclean Bay pay Mrs Taylor $3,575.16, within 30 days of the making of that order.
239 Mrs Taylor’s base rate of pay, at the end of her 16 years of service, was $19.862 per hour. Mrs Taylor worked about 30 hours per week at the resort. Her average weekly earnings were $595.86. It took Mrs Taylor six weeks to find alternative employment. But for the termination, Mrs Taylor would have received $3,575.16 in wages.
240 There is no reason to decline to make the compensatory orders referred to in respect of the employees referred to at [222] to [239] above.
orders
241 Having regard to the findings of the Court and the discussion about compensation contained at [222] to [240] above, it is appropriate to make the orders reflected in the order page accompanying these reasons for judgment. These are the only orders that the Court makes at this stage of what is a part-heard proceeding in the absence of determination of what penalties, if any, should be imposed upon the respondents.
| I certify that the preceding two hundred and forty one (241) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. |
Associate:
