FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034

File number:

NSD 659 of 2014

Judge:

KATZMANN J

Date of judgment:

26 August 2016

Catchwords:

INDUSTRIAL LAW alleged contraventions of Fair Work Act 2009 (Cth) — whether individuals in question employees or subcontractors — whether first respondent true employer of employees — underpayment of statutory and award entitlements adverse action — false representations — failure to keep proper records — failure to provide pay slips — accessorial liability

Legislation:

A New Tax System (Australian Business Number) Act 1999 (Cth) s 8

A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 9-20

Corporations Act 2001 (Cth), ss 205B, 206A, 206B

Evidence Act 1995 (Cth), ss 160, 161, 163

Fair Work Act 2009 (Cth), ss 12, 14, 27, 28, 45, 61, 86, 87, 90, 95, 96, 97, 99, 107, 115, 116, 117, 123, 125, 293, 323, 324, 325, 340, 341, 342, 357, 360, 361, 535, 536, 539, 546, 550, 564, 570, 681, 687, 701, 793

Federal Court of Australia Act 1976 (Cth), ss 21, 22, 23, 37M, 37N

Superannuation Guarantee (Administration) Act 1992 (Cth), ss 3, 16, 17, 19, 23, 32C, 32F

Superannuation Guarantee (Administration) Amendment Act 2012 (Cth)

Superannuation Guarantee Charge Act 1992 (Cth), ss 5, 6

Fair Work Regulations 2009 (Cth), regs 3.33, 3.34, 3.36, 3.37, 3.46

Federal Court Rules 2011 (Cth), rr 1.32, 1.41, 30.21

Holidays Act 1910 (SA), s 3, Sch 2

Holidays Act 1958 (ACT), s 3

Holidays Act 1983 (Qld), s 2, Sch

Public and Bank Holidays Act 1972 (WA), s 5, Sch 2

Public Holidays Act 1993 (Vic), s 6

Public Holidays Act 2010 (NSW), s 4

Cases cited:

ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532

Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 178 FLR 1

AHB v NSW Trustee and Guardian [2014] NSWCA 40

Australian Communications and Media Authority v Mobilegate Ltd (a company incorporated in Hong Kong) (No 8) [2010] FCA 1197; 275 ALR 293

Australian Competition and Consumer Commissioner v Giraffe World Australia Pty Ltd (No 2) (1999) 95 FCR 302

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500    

Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149

Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 164 IR 299

Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17

Damevski v Giudice (2003) 133 FCR 438

Fair Work Ombudsman v Al Hilfi [2012] FCA 1166

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365    

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 256 CLR 137

Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174

Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456

Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

Giorgianni v The Queen (1985) 156 CLR 473

Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939

Hamilton v Whitehead (1988) 166 CLR 121

Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

Marshall v Whittakers Building Supply Co (1963) 109 CLR 210

On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 214 FCR 82

Potter v Fair Work Ombudsman [2014] FCA 187

Qantas Airways Ltd v Transports Workers Union of Australia [2011] FCA 470; 280 ALR 503

Reid v Camphill Engravers [1990] ICR 435

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Tesco Supermarkets Ltd v Nattrass [1972] AC 153

Vines v Djordjevitch (1955) 91 CLR 512

Yorke v Lucas (1985) 158 CLR 661

Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; 293 ALR 537)

Date of hearing:

8, 9 and 10 December 2015

Date of last submissions:

31 May 2016

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment and Industrial Relations

Category:

Catchwords

Number of paragraphs:

1143

Counsel for the Applicant:

Mr Y Shariff

Solicitor for the Applicant:

Fair Work Ombudsman

Counsel for the First Respondent:

The First Respondent did not appear

Counsel for the Second Respondent:

The Second Respondent did not appear

Counsel for the Third Respondent:

The Third Respondent did not appear

Counsel for the Fourth Respondent:

The Fourth Respondent did not appear

Table of Corrections

1 June 2017

In declaration 1.2, the number “31” has been substituted for the number “32”.

1 June 2017

In declaration 1.3, “s 99” has been substituted for “s 97”.

1 June 2017

In declaration 2.15, the number “21” has been substituted for the number “23”.

1 June 2017

In declaration 2.16, the number “17” has been substituted for the number “19”.

1 June 2017

In declaration 2.19, “six” has been substituted for “seven”.

1 June 2017

In declaration 3, the word “free” has been inserted after the words “award/agreement”.

1 June 2017

In declaration 4, the number “49” has been substituted for the number “50”.

1 June 2017

In declaration 10.4, “one” has been substituted for “two”.

1 June 2017

In declaration 10.12, “eight” has been substituted for the number “11”.

1 June 2017

In declaration 10.16, the number “21” has been substituted for the number “23”.

1 June 2017

In declaration 10.23, “51 employees” has been substituted for “one employee”.

1 June 2017

In paragraph 32, “31–36” has been substituted for “31–35”.

1 June 2017

In paragraph 33, the following subparagraph, which was inadvertently removed, has be re-inserted:

“False representations

(34)    in contravention of s 357(1) of the FW Act, representations were made to certain employees that they were engaged, or would be engaged, under a contract for services under which they were performing, or would perform, work as an independent contractor, when they were in fact and in law engaged and worked as employees under contracts of employment”.

1 June 2017

In paragraph 33, subparagraph (3), paragraph 995, and the third row of each of the two tables in Annexure B, “s 99” has been substituted for “s 97”.

1 June 2017

In paragraph 268, “Juliana Botero Hernandez” has been substituted for “Jessica Alvarado Palma”.

1 June 2017

In paragraph 269, “Jessica Alvarado Palma” has been substituted for “Juliana Botero Hernandez”.

1 June 2017

In paragraph 339, first sentence, “2012” has been substituted for “2013”

1 June 2017

In paragraph 394, first sentence, the words “dated 12 January 2013” have been replaced with the phrase “received by the Ombudsman on 14 February 2013”.

1 June 2017

In paragraphs 399 and 405, “s 117(2)” has been substituted for “s 90(2)”.

1 June 2017

In paragraph 706, “cl 27.1(b)” has been substituted for “cl 27.2(b)”.

1 June 2017

In paragraph 762, the words “save for one payment of $500” have been inserted after “18 January 2013”.

1 June 2017

In paragraph 767, the third sentence has been deleted.

1 June 2017

In paragraph 775, second sentence, “Boxing Day 2011” has been substituted for “Boxing Day 2012”.

1 June 2017

In paragraph 812, first sentence, “5 April 2012” has been substituted for “15 April 2012”.

1 June 2017

In paragraph 879, penultimate sentence, “2012” has been substituted for “2013”, and “$15.96” for “16.37”.

1 June 2017

In paragraph 986, “s 90(2)” has been substituted for “s 87(1)”.

1 June 2017

Throughout the judgment, in all references to Wendy Bong the male pronoun has been substituted for the female pronoun.

NSD 659 of 2014

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

GROUPED PROPERTY SERVICES PTY LTD (ACN 121 762 534)

First Respondent

NATIONAL CONTRACTORS PTY LTD (ACN 159 741 518)

Second Respondent

ROSARIO PUCCI

Third Respondent

ENRICO PUCCI

Fourth Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

26 AUGUST 2016

THE COURT DECLARES THAT:

1.    Grouped Property Services Pty Ltd (ACN 121 762 534) (GPS) contravened 44 of the Fair Work Act 2009 (Cth) in the following respects:

1.1.    by failing to pay two employees for a period of annual leave as prescribed by subs 90(1) of the Fair Work Act;

1.2.    by failing to pay 31 employees on termination, as required by subs 90(2) of the Fair Work Act, the amounts that would have been payable in respect of their accrued but untaken annual leave, had they taken the annual leave;

1.3.    by failing to pay one employee the basic periodic rate of pay for a period of personal leave, as prescribed by s 99 of the Fair Work Act;

1.4.    by failing to pay six employees in respect of public holidays or part public holidays on which those employees were absent from work but would ordinarily have worked, as prescribed by s 116 of the Fair Work Act;

1.5.    by failing to give four employees written notice of termination, as prescribed by subs 117(1) of the Fair Work Act;

1.6.    by failing to pay, as prescribed by subs 117(2) of the Fair Work Act, 10 employees whose employment was terminated without sufficient notice;

2.    GPS contravened 45 of the Fair Work Act in the following respects:

2.1.    by failing to pay one employee a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 of the Cleaning Services Award 2010;

2.2.    by failing to pay four administrative employees a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of Schedule A of the Clerks Private Sector Award 2010 (Clerks Modern Award);

2.3.    by failing to make superannuation contributions of any kind in respect of five employees in accordance with cl 24.2 of the Clerks Modern Award;

2.4.    by failing to pay overtime to two employees, as required by cl 27.1 of the Clerks Modern Award;

2.5.    by failing to provide 21 part-time cleaners with a written agreement specifying their pattern of work, the hours worked each day, the days of the week those cleaners would work and the actual starting and finishing times each day as prescribed by cl 12.4(a) of the Cleaning Services Award;

2.6.    by failing to pay 15 part-time cleaners a 15 per cent allowance in addition to the full time rate of pay in accordance with cl 12.4(b) of the Cleaning Services Award;

2.7.    by failing to provide six cleaners who were required to work two shifts in one day or period of duty the applicable allowance as prescribed by cl 17.1 of the Cleaning Services Award;

2.8.    by failing to pay one employee, who was required to travel from one place of work to another, the basic periodic rate of pay for all time so occupied by her as prescribed by cl 17.10 of the Cleaning Services Award;

2.9.    by failing to pay 29 cleaners on a weekly or fortnightly basis and no later than Thursday in each pay week as prescribed by cl 20.1 of the Cleaning Services Award;

2.10.    by failing to pay (as prescribed by cl 20.3 of the Cleaning Services Award) 29 cleaners, who were left waiting for the transfer of their wages by electronic funds transfer, their ordinary rates of pay until such time as their wages were paid;

2.11.    by failing to make superannuation contributions in respect of 22 cleaners, contrary to cl 23.2 of the Cleaning Services Award;

2.12.    by failing to pay penalty rates prescribed by cl 27.1(a) of the Cleaning Services Award to 22 cleaners engaged to work early morning, afternoon or non-permanent night shift;

2.13.    by failing to pay penalty rates prescribed by cl 27.1(b) of the Cleaning Services Award to six cleaners engaged to work permanent night shift;

2.14.    by failing to pay penalty rates prescribed by cl 27.2(a) of the Cleaning Services Award to 22 cleaners engaged to work between midnight Friday and midnight Saturday;

2.15.    by failing to pay penalty rates prescribed by cl 27.2(b) of the Cleaning Services Award to 21 cleaners engaged to work between midnight Saturday and midnight Sunday;

2.16.    by failing to pay penalty rates prescribed by clause 27.3 of the Cleaning Services Award to 17 cleaners engaged to work on a public holiday;

2.17.    by failing to pay penalty rates as prescribed by cl 28.2 of the Cleaning Services Award to 25 cleaners who worked overtime between midnight Sunday and midnight Saturday;

2.18.    by failing to pay penalty rates as prescribed by cl 28.3 of the Cleaning Services Award to 25 cleaners who worked overtime on Sunday;

2.19.    by failing to pay penalty rates as prescribed by cl 28.4 of the Cleaning Services Award for overtime worked on a public holiday to six cleaners; and

2.20.    by failing to pay six cleaners an additional annual leave loading pursuant to cl 29.4 of the Cleaning Services Award.

3.    GPS contravened s 293 of the Fair Work Act by failing to pay two award/agreement free employees the national minimum wage.

4.    GPS contravened s 323 of the Fair Work Act by failing to pay 49 employees in relation to the performance of work in full and in money.

5.    GPS contravened s 340 of the Fair Work Act by dismissing Moona Hasan because she exercised a workplace right.

6.    GPS contravened357 of the Fair Work Act by employing or proposing to employ nine individuals and representing to them that the contract under which they were, or were to be, employed was, or is, a contract for services under which those persons were, or were to be, engaged as independent contractors.

7.    GPS contravened subs 535(2) of the Fair Work Act by failing to keep records in the form prescribed by the Fair Work Regulations 2009 (Cth) in relation to 51 employees.

8.    GPS contravened subs 536(1) of the Fair Work Act by failing to give a pay slip to 11 employees within one working day of paying an amount to the employees in relation to the performance of work.

9.    Enrico Pucci was involved (within the meaning of subs 550(2) of the Fair Work Act) in the contravention by GPS of the provision of the Fair Work Act identified in para 5 above.

10.    Rosario (also known as Ross) Pucci was involved (within the meaning of subs 550(2) of the Fair Work Act) in the contraventions by GPS of the provisions of the Fair Work Act identified in the following paragraphs above:

10.1.    paragraph 1.1, in relation to one employee;

10.2.    paragraph 1.2, in relation to one employee;

10.3.    paragraph 1.5, in relation to one employee;

10.4.    paragraph 1.6, in relation to one employee;

10.5.    paragraph 2.1, in relation to one employee;

10.6.    paragraph 2.2, in relation to two employees;

10.7.    paragraph 2.3, in relation to one employee;

10.8.    paragraph 2.4, in relation to one employee;

10.9.    paragraph 2.5, in relation to one employee;

10.10.    paragraph 2.6, in to one employee;

10.11.    paragraphs 2.9 and 2.10, in relation to 13 employees;

10.12.    paragraph 2.11, in relation to eight employees;

10.13.    paragraph 2.12, in relation to 22 employees;

10.14.    paragraph 2.13, in relation to one employee;

10.15.    paragraph 2.14, in relation to 22 employees;

10.16.    paragraph 2.15, in relation to 21 employees;

10.17.    paragraph 2.17, in relation to two employees;

10.18.    paragraph 2.18, in relation to two employees;

10.19.    paragraph 2.20, in relation to one employee;

10.20.    paragraph 3, in relation to one employee;

10.21.    paragraph 4, in relation to 46 employees;

10.22.    paragraph 6, in relation to nine employees;

10.23.    paragraph 7, in relation to 51 employees; and

10.24.    paragraph 8, in relation to 11 employees.

THE COURT ORDERS THAT:

1.    Pursuant to subs 545(1) of the Fair Work Act, GPS undertake, or at its expense engage a third party with qualifications in accounting or workplace relations to undertake, an audit of GPS’s compliance with the Fair Work Act and the Cleaning Services Award and Clerks Modern Award on the following terms:

(a)    the audit period will be the period commencing on 15 September 2013 and ending six months after the date of this order;

(b)    the audit is to be completed within 30 days of the end of the audit period;

(c)    the audit will apply to all employees and persons otherwise engaged to perform work for GPS (including persons purportedly employed or engaged by National Contractors Pty Ltd) at any time during the audit period;

(d)    according to each employee’s classification of work, category of employment, and hours worked during the audit period, the audit will assess GPS’s compliance with the following obligations:

(i)    wages and work related entitlements under the Cleaning Services Award, the Clerks Modern Award, other industrial instruments or national minimum wage orders;

(ii)    accrual and payment of entitlements under the National Employment Standards in Part 22 of the Fair Work Act;

(iii)    method and frequency of payment in accordance with s 323 of Fair Work Act;

(iv)    permitted deductions in accordance with s 325 of the Fair Work Act;

(v)    contracting arrangements in accordance with s 357 of the Fair Work Act; and

(vi)    record keeping and pay slip obligations in Division 3 of Part 3-6 of the Fair Work Act.

2.    Within 30 days of the audit in order 1 above being completed, GPS provide the applicant with:

(a)    a copy of the audit report which will include a statement of the methodology used in the audit; and

(b)    written details of any contraventions identified in the audit, the steps GPS will take to rectify any identified contravention(s) and by when the rectification will occur.

3.    Within six months of the date of this order, GPS engage, at its own expense, a person or organisation with professional qualifications in workplace relations to provide training to GPS that covers the following:

(a)    obligations on employers under the Cleaning Services Award, Clerks Modern Award and the National Employment Standards in the Fair Work Act; and

(b)    payment of wages in accordance with Division 2 of Part 2-9 of the Fair Work Act.

4.    Within 30 days of completing the training in order 3 above, GPS notify the applicant, in writing of:

(a)    the date on which the training was completed;

(b)    the name of the person or organisation that conducted the training; and

(c)    the details of the methods of delivery of the training and the content of the training.

5.    Pursuant to subs 545(1) and/or subs 545(2)(a) of the Fair Work Act, GPS be restrained, whether by its officers, agents or otherwise, from engaging in conduct that contravenes the Cleaning Services Award, the Clerks Modern Award, National Employment Standards, national minimum wage order or other industrial instrument.

6.    Pursuant to subs 545(1) and/or subs 545(2)(a) of the Fair Work Act, Enrico Pucci and Rosario (also known as Ross) Pucci be restrained from:

(a)    aiding, abetting, counselling, procuring; or

(b)    being in any way knowingly concerned, whether directly or indirectly, in conduct that contravenes the Cleaning Services Award, the Clerks Modern Award, National Employment Standards, national minimum wage orders or other industrial instruments.

7.    Judgment be entered in favour of National Contractors Pty Ltd.

8.    The District Registrar forward a copy of these reasons to the Australian Securities and Investments Commission and the Australian Taxation Office.

9.    The matter be stood over to a date to be fixed for the hearing of the application for compensation and penalties.

10.    The question of costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Table of Contents

Introduction    5

The parties    6

The Fair Work Ombudsman    6

Grouped Property Services, Rosario and Enrico Pucci    6

National Contractors    7

The hearing    8

The allegations    10

Underpayment of statutory and award entitlements    11

Adverse action    13

False representations    14

Record-keeping contraventions    14

Failing to provide pay slips    14

The issues    14

Were all 51 employees rather than independent contractors?    15

Who was the true employer: GPS or National Contractors?    36

Were the employees covered by the relevant awards?    46

The “agreed” facts    46

Were all 42 Cleaning Employees covered by the Cleaning Services Award?    48

Were all six Administrative Employees covered by the Clerks Modern Award?    51

The alleged contraventions    53

The evidence    53

Contraventions 1–32: The underpayment of wages and other entitlements    59

1    Non-payment of annual leave    60

2    Failing to pay annual leave on termination    62

3    Failure to pay basic periodic rates of pay for personal leave    78

4    Failing to pay public holidays    81

5    Failing to give written notice of termination    88

6    Failure to make payments in lieu of notice    89

7    Failure to pay minimum rates of pay to Abraham Arguello    92

8    Failure to pay minimum rates of pay to the administrative employees    93

9    Failure to pay superannuation in accordance with the Clerks Modern Award    98

10    Failure to pay overtime to administrative employees    100

11    Failure to pay annual leave loading to administrative employees    103

12    Failure to give written agreements on patterns of work to part-time cleaners    105

13    Failure to pay a 15% allowance for part-time cleaners    110

14    Failure to pay broken shift allowance    114

15    Failure to pay motor vehicle allowance    118

16    Failure to pay travel time    119

17    Failure to pay on a weekly or fortnightly basis    119

18    Failure to pay employees kept waiting    119

19    Failure to pay superannuation in accordance with the cleaning services award    124

20    Failure to pay part-time workers for minimum engagement period    135

21    Requiring cleaners to work ordinary hours on more than five days per week    136

22    Failure to pay the applicable allowances for early morning, afternoon and non-permanent night shift    138

23    Failure to pay the applicable penalty rate for permanent night shift    144

24    Failure to pay cleaners the applicable penalty rate for time worked between midnight Friday and midnight Saturday    145

25    Failure to pay cleaners the applicable penalty rate for time worked between midnight Saturday and midnight Sunday    145

26    Failure to pay cleaners the applicable penalty rate for work on a public holiday    151

27    Failure to pay the applicable penalty rate to cleaners working overtime from midnight Sunday to midnight Saturday    157

28    Failure to pay the applicable penalty rate to cleaners for Sunday overtime    157

29    Failure to pay overtime to cleaners working on public holidays    164

30    Failure to pay cleaners annual leave loading    165

31    Failure to pay the national minimum wage    168

32    Failure to pay employees in full and in money    172

Contravention 33 Adverse action against Moona Hasan    173

Contravention 34 Falsely representing employment contracts as contracts for services    178

Contravention 35 Failure to keep proper records    182

Contravention 36 Failure to provide pay slips    183

Are Rosario Pucci and Enrico Pucci to be taken as having contravened the FW Act?    184

The principles    184

Enrico Pucci    185

Rosario Pucci    186

The Ombudsman’s approach    186

The limitations of the Ombudsman’s approach    187

Rosario’s involvement in the contraventions    190

1    Non-payment of annual leave    190

2    Failing to pay annual leave on termination    192

3    Failure to pay basic periodic rates of pay for personal leave    193

4    Failing to pay public holidays    195

5    Failing to give written notice of termination    196

6    Failure to make payments in lieu of notice    196

Knowledge of the application and terms of the awards    198

7    Failure to pay minimum rates of pay to Abraham Arguello    201

8    Failure to pay minimum rates of pay to the administrative employees    202

9    Failure to pay superannuation in accordance with the Clerks Modern Award    203

10    Failure to pay overtime to administrative employees    204

11    Failure to pay annual leave loading to administrative employees    205

12    Failure to give written agreements on patterns of work to part-time cleaners    205

13    Failure to pay a 15% allowance for part-time cleaners    206

14    Failure to pay broken shift allowance    207

15    Failure to pay motor vehicle allowance    208

16    Failure to pay travel time    208

17    Failure to pay on a weekly or fortnightly basis    208

18    Failure to pay employees kept waiting    208

19    Failure to pay superannuation in accordance with the cleaning services award    209

20    Failure to pay part-time workers for minimum engagement period    210

21    Requiring cleaners to work ordinary hours on more than five days per week    210

22    Failure to pay the applicable allowances for early morning, afternoon and non-permanent night shift    210

23    Failure to pay the applicable penalty rate for permanent night shift    211

24    Failure to pay cleaners the applicable penalty rate for time worked between midnight Friday and midnight Saturday    212

25    Failure to pay cleaners the applicable penalty rate for time worked between midnight Saturday and midnight Sunday    212

26    Failure to pay cleaners the applicable penalty rate for work on a public holiday    212

27     Failure to pay the applicable penalty rate to cleaners working overtime from midnight Sunday to midnight Saturday    213

28    Failure to pay the applicable penalty rate to cleaners for Sunday overtime    213

29    Failure to pay overtime to cleaners working on public holidays    214

30    Failure to pay cleaners annual leave loading    214

31    Failure to pay the national minimum wage    214

32    Failure to pay employees in full and in money    215

34    Falsely representing employment contracts as contracts for services    216

35    Failure to keep proper records    216

36    Failure to provide pay slips    216

Conclusion    217

Relief    218

Declaratory relief    218

Other orders    218

Compensation    219

Costs    221

Additional matters    222

Annexure A    223

Annexure B    225

Introduction

1    This is a case about the shameless exploitation of a vulnerable workforce and inept attempts to avoid its legal consequences.

2    The proceeding arises from an investigation by the Fair Work Ombudsman into the employment practices of a contract cleaning business operated by Grouped Property Services Pty Ltd (GPS). The investigation was apparently triggered by complaints from workers in the business. In all, over 170 complaints were received, most of them from cleaners from predominantly non-English speaking backgrounds. The Ombudsman alleges that in numerous respects GPS (or alternatively National Contractors Pty Ltd, a company apparently established by GPS’s principals) contravened the Fair Work Act 2009 (Cth) (FW Act). In addition to civil penalties she seeks, amongst other things, declaratory relief, compensation for the affected employees, and permanent injunctions.

3    Some 36 contraventions are pleaded, 32 of which concern failure to pay minimum entitlements set, for the most part, by one or two modern awards, but as each of the contraventions is said to have affected up to 51 employees, in truth the Ombudsman contends that there have been a total of about 580 contraventions. The Ombudsman claims that Rosario Pucci, a former director of GPS, was involved in all bar one of those contraventions and that his brother, Enrico, a current director, was involved in the remaining one. In general, for convenience and to avoid confusion, and without intending any disrespect to them, from now on I shall refer to the two brothers, as well as other members of their families, by their first name.

4    In a joint defence filed on 19 September 2014 (amended on 7 April 2015) GPS and Enrico denied the Ombudsmans central allegations. They claimed that GPS was never the employer, but that the men and women in question “may have been” employed by other entities (including National Contractors) which supplied their labour to GPS. The Ombudsman contends that the labour hire arrangements were not genuine.

5    In its defence National Contractors maintained the integrity of the supposed labour hire arrangement, alleging that it did contract with GPS and admitted to being the employer of some of the alleged employees, claiming also to supply services to GPS of a number of subcontractors.

6    Rosario never filed a defence.

7    On 23 March 2015 the Ombudsman filed a statement of agreed facts and issues recording the extent of the agreement reached by those parties who did file a defence and the limits of the dispute disclosed by the pleadings.

8    The hearing proceeded on a second further amended originating application and a further amended statement of claim filed in court on the first day of the hearing. Those documents reflected amendments foreshadowed in the Ombudsmans written submissions, and were served on all respondents.

The parties

The Fair Work Ombudsman

9    The FW Act provides for the establishment of the office of the Fair Work Ombudsman (s 681), appointed by the Governor-General by written instrument (s 687(1)). By force of s 701, the Ombudsman is also a Fair Work Inspector and, in that capacity, has standing to apply for orders in respect of contraventions of the civil remedy provisions of the Act (s 539(2)).

Grouped Property Services, Rosario and Enrico Pucci

10    GPS was incorporated under the Corporations Act 2001 (Cth) on 15 September 2006. It is also a constitutional corporation within the meaning of s 12 of the FW Act and so is a “national system employer” and therefore an employer within the meaning of the Act insofar as it employs, or usually employs, individuals: ss 12, 14(1)(a).

11    At all relevant times, GPS operated a cleaning business contracting its services to various entities, including gymnasiums, car parks, bowling centres, stores, a library, and schools. In recent times it has also provided security services.

12    Ever since its incorporation, GPS has had only one director. First it was Rosario, then Enrico. Rosario was the sole director of GPS from its incorporation on 15 September 2006 until 30 June 2011 when Enrico assumed that position. Rosario is also known as Ross. Certainly, the witnesses referred to him by that name. But I will continue to refer to him as Rosario.

13    Rosario was also the only shareholder in GPS from its incorporation until 9 April 2013 when he was replaced by Enrico. Rosario thus maintained his controlling interest for a short time after Enrico replaced him as director. The evidence indicates that at all relevant times the management of the company was in the hands of the two brothers.

14    At least at the time this matter was heard, Rosario was also an undischarged bankrupt. He was made bankrupt on his own petition on 12 April 2012. Yet, despite the prohibition imposed by the Corporations Act on undischarged bankrupts managing corporations (see ss 206A, 206B(3)), he continued to hold the most senior position in the hierarchy of the company: its Chief Operating Officer. On 9 October 2014 he was described on the GPS website (www.gpsfm.com.au) as its Director of Operations.

National Contractors

15    National Contractors is the last in line of a number of companies established by the Puccis which purportedly employed labour supplied to GPS. The evidence points strongly to a practice of “phoenixing”, that is to say creating new companies from the ashes of the old, with the object of defeating creditors. In chronological order the Pucci companies were:

    Wash and Go Pty Ltd (registered on 21 July 2006, placed into liquidation on 3 February 2010, and deregistered on 11 November 2011);

    RPEP Holdings Pty Ltd (registered on the same day as Wash and Go, filed for a creditors’ voluntary winding-up on 22 July 2011, deregistered on 13 October 2013, restored to the register effective 22 May 2015, and, at the time of the hearing, under the control of a court appointed liquidator);

    Reggio Investments Pty Ltd (registered on 14 July 2010, a liquidator appointed on 15 November 2012 following a creditors winding up, and deregistered on 30 November 2015); and

    National Contractors (registered on 1 August 2012, two and a half months before the appointment of a liquidator to Reggio; liquidator appointed 14 September 2015, when the hearing of this application was pending).

16    Rosario was the director of Wash and Go until its deregistration. The sole director of RPEP was Gina Pucci. The sole director of Reggio was Belinda Grace Pucci. Gina resided at the same address as Rosario and Belinda at the same address as Enrico. It is reasonable to assume that they are related in some way. In all likelihood, Gina is Rosarios wife and Belinda Enricos. The evidence does not suggest that either woman played any active part in the management of the companies or their businesses.

17    At the time of registration Belinda Pucci was National Contractors sole director and secretary. Rosario replaced Belinda as director on 1 September 2012. This situation obtained, according to Australian Securities and Investments Commission (ASIC) records tendered in evidence, until at least 28 November 2012, despite Rosario’s bankruptcy, perhaps because that circumstance was disguised by Rosario’s use of the name “Ross”. Somewhat confusingly, however, a later ASIC search (conducted on 19 September 2013) shows that Belinda was a director from the time of registration until 1 September 2012 and that Ross was a director from 1 September 2012 until 1 September 2012. There was no explanation for the discrepancies in the ASIC records but in all likelihood they are due to a failure to inform ASIC of the change within the required 28 days: see Corporations Act, s 205B(5). Kristina Voytenko, a human resources manager with GPS, was sole director of National Contractors at the time that search was undertaken and, according to the document, had been appointed on 1 September 2012 although her name did not appear on the search conducted on 28 November 2012.

The hearing

18    All respondents with the exception of Rosario appeared at a number of directions hearings until 18 May 2015 when Gartree Thomson Lawyers, the solicitors for National Contractors, filed a notice of intention to cease to act and then seven days later a notice of withdrawal. On 6 July 2015 Darian Romano Iacono of the curiously named firm & Legal, the solicitors for GPS and Enrico, followed suit, filing a notice of ceasing to act for GPS. Three days later, Mr Iacono notified the Court that he had also ceased to act for Enrico. None of the respondents complied with the pre-trial directions, none filed any evidence, and none appeared at the hearing, although all were made aware of the directions and the hearing dates. Accordingly, the Ombudsmans evidence was unchallenged and, unless otherwise indicated, I accept it.

19    At 10.00pm on the day before the hearing was due to start, by email to my associate and the solicitors for the Ombudsman, Rosario advised that he was unwell and unfit to attend the court from tomorrow until further notice due to a work related injury involving my back, RHS groin and RHS rib. He said that he had scheduled another appointment to attend a further medical assessment and obtain x-rays, and attached a WorkCover certificate. That certificate, apparently signed by Rosario and a medical practitioner, Dr Shanthini Ilanko, described the injury as tried stop a machine from falling injured his back and rib. The certificate recorded that Rosario had stated that the injury occurred on 7 December 2015 (the date before the hearing) and that he first saw Dr Ilanko on that date. In the certificate, Dr Ilanko also stated that Rosario had no current work capacity from 7 December to 11 December 2015.

20    I note in passing that the certificate, part of which found its way into evidence, recorded that Rosario was an employee of GPS, a statement that appears to undermine GPSs claim, as put in a letter from Enrico to the Ombudsman on 3 May 2013, that [GPS] do[es] not employ or engage staff.

21    Rosario’s email was followed by another the next morning, when the trial was due to start. This email was sent by Enrico at 7.04 am. It read simply:

Morning

Please see below medical certificate for Enrico Pucci. Sorry for any inconvenience.

22    The email attached an image of a medical certificate apparently from a Dr Hamida Rashed of the National Home Doctor Service, disclosing only that Enrico was examined on 7 December 2015, suffered from an undisclosed medical condition, and was unfit for work/school from 07/12/15 to 08/12/15. I arranged for my associate to forward the email to the Ombudsmans legal representatives.

23    Despite the contents of the two emails, neither Rosario nor Enrico applied for an adjournment of the hearing. A party who wishes to obtain an adjournment is ordinarily required to attend court and explain precisely why the adjournment is warranted: AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [5]. Unsurprisingly, therefore, when the matter was called on for hearing, the Ombudsman urged the Court to press on.

24    The Rules of Court permit an applicant in these circumstances to apply for an order that the hearing proceed generally (Federal Court Rules 2011 (Cth), r 30.21) and, if such an application is made the Court may grant it (r 1.41). Although the Ombudsman’s application was not this precise, that was its effect.

25    Perhaps the purpose of the emails was to explain the absence of the Puccis, although neither Enrico nor Rosario had seen fit to do so on any previous occasion when the matter was before the Court. Perhaps they assumed that their correspondence would automatically result in an adjournment. Whatever their intentions, there was no sound reason to adjourn the proceedings.

26    First and foremost, the material emailed to the Court was silent as to the ability of either Rosario or Enrico to attend court and to fully participate in the hearing to the extent that they might have wished to do so. Enrico’s medical certificate was relevantly identical in terms to the certificate proffered to the Court of Appeal in AHB which Macfarlan JA described as “formulaic” and on which, he observed, the Court would not ordinarily act. While Rosario’s medical certificate provided more detail than his brothers, neither addressed the relevant questions: whether he could not attend court and, if so, for what medical reason.

27    The Court may make any order it considers appropriate in the interests of justice (r 1.32). The Court must exercise its powers in the way that best promotes the overarching purpose of the civil procedure provisions in the Act and Rules: to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37M.

28    In the circumstances that obtained here, having regard to the overarching purpose, noting that Rosario had not filed a defence and neither had filed any evidence, I determined that it was in the interests of justice that the hearing proceed.

29    Evidence was adduced by affidavit from 42 of the 51 workers and two Fair Work Commission inspectors. The affidavits were read. Some contained annexures. In other cases documents were exhibited to them. As none of the respondents appeared at the hearing, no objections were taken, all the Ombudsman’s documents were received into evidence, none of the deponents was cross-examined, and no contrary evidence was led. One of the inspectors, Ashley Hurrell, also gave oral evidence designed to explain the method used to calculate the amounts of compensation.

The allegations

30    As noted above, the most recent incarnation of the applicant’s pleading is a further amended statement of claim filed in court on the first day of the hearing. It is substantially the same as its predecessor which was filed and served in March last year. The only substantive change it effects is to omit a contravention included in the earlier version.

31    The allegations relate to the period from 1 July 2011 until 14 September 2013, referred to in the document as the Audit Period. They concern 42 cleaners, six clerical or administrative employees and three award-free employees, who are said to have been employed during the Audit Period or part of it by GPS or, in the alternative for part of the period, by National Contractors or Reggio. In total, 36 contraventions are alleged to have occurred. But in 33 of the 36 instances the Ombudsman claims that the FW Act was contravened numerous times.

32    Allegations 1–7 concern breaches of the National Employment Standards (prescribed in Pt 22 of the Act), which are minimum employment standards that cannot be displaced (s 61(1)). Section 44(1) of the Act states that a person must not contravene a provision of the National Employment standards. Allegations 7–30 concern breaches of the relevant modern award. Section 45 of the Act states that a person must not contravene a term of a modern award. Consequently, any contravention of a term of the relevant award will also be a contravention of the Act. Sections 44 and 45 are both civil remedy provisions. So too are the sections of the FW Act said to be contravened in allegations 31–36. This means that the Court may order that a penalty be imposed in the event of a contravention: see FW Act ss 539, 546.

33    The following contraventions are said to have taken place during the Audit Period:

Underpayment of statutory and award entitlements

(1)    certain cleaners were not paid the full amounts due to them for accrued annual leave contrary to s 90(1) of the FW Act;

(2)    a number of employees with accrued annual leave on termination of their employment were not paid their entitlements contrary to s 90(2) of the FW Act;

(3)    in contravention of s 99 of the FW Act, four employees who took personal leave were not paid the remuneration to which they were entitled during those periods;

(4)    in contravention of s 116 of the FW Act, a number of employees were not paid for public holidays or parts thereof;

(5)    in contravention of s 117(1) of the FW Act, four employees were not given written notice of termination of employment;

(6)    in contravention of s 117(2) of the FW Act, 10 employees were not paid in lieu of notice of termination;

(7)    in contravention of s 45 of the FW Act, one of the employees did not receive his award rate of pay, contrary to subcll 16.1 and A.8 of Sch A of the Cleaning Services Award 2010 (Cleaning Services Award);

(8)    in contravention of s 45 of the FW Act, the minimum rates of pay prescribed by subcll 16.1 and A2.5 of Sch A of the ClerksPrivate Sector Award 2010 (Clerks Modern Award) were not paid to certain administrative employees;

(9)    in contravention of s 45 of the FW Act, no contributions were made to any superannuation fund in respect of the administrative employees as required by cl 24.2 of the Clerks Modern Award;

(10)    in contravention of s 45 of the FW Act, overtime rates were not paid to two administrative employees who worked overtime contrary to cl 27.1 of the Clerks Modern Award;

(11)    in contravention of s 45 of the FW Act, annual leave loadings were not paid to the administrative employees as required by cl 29.3 of the Clerks Modern Award;

(12)    in contravention of s 45 of the FW Act part-time cleaners were not provided with written agreements specifying their patterns of work, contrary to cl 12.4(a) of the Cleaning Services Award;

(13)    in contravention of s 45 of the FW Act, several part-time cleaners were not paid the full 15% allowance to which they were entitled in addition to their hourly rates of pay under cl 12.4(b) of the Cleaning Services Award;

(14)    in contravention of s 45 of the FW Act, cleaners who were required to work two shifts in one day or period of duty did not receive the allowance for doing so prescribed by cl 17.1 of the Cleaning Services Award;

(15)    in contravention of s 45 of the FW Act, a cleaner who used her own motor vehicle in the course of her work was not paid the allowance required by cl 17.4 of the Cleaning Services Award;

(16)    in contravention of s 45 of the FW Act, one of the cleaners who travelled from one place of work to another did not receive payment in respect of her travel time as required by cl 17.10 of the Cleaning Services Award;

(17)    in contravention of s 45 of the FW Act, certain cleaners were not paid within the time required by cl 20.1 of the Cleaning Services Award;

(18)    in contravention of s 45 of the FW Act, certain cleaners were left waiting for the payment of their wages by electronic funds transfer, contrary to cl 20.3 of the Cleaning Services Award;

(19)    in contravention of s 45 of the FW Act, no contributions were made to any superannuation fund in respect of several cleaners, contrary to cl 23.2 of the Cleaning Services Award;

(20)    in contravention of s 45 of the FW Act, several part-time cleaners were not engaged for the minimum engagement period prescribed by cl 24.2 of the Cleaning Services Award;

(21)    in contravention of s 45 of the FW Act, a number of cleaners were required to work ordinary hours on more than five days per week, contrary to cl 24.2(a) of the Cleaning Services Award;

(22)    in contravention of s 45 of the FW Act, several part-time cleaners working early morning, afternoon and non-permanent night shift were not paid penalty rates prescribed by cl 27.1(a) of the Cleaning Services Award;

(23)    in contravention of s 45 of the FW Act, cleaners who worked permanent night shift were not paid penalty rates prescribed by cl 27.1 of the Cleaning Services Award;

(24)    in contravention of s 45 of the FW Act, several part-time cleaners who worked between midnight Friday and midnight Saturday were not paid penalty rates prescribed by cl 27.2(a) of the Cleaning Services Award;

(25)    in contravention of s 45 of the FW Act, several part-time cleaners who worked between midnight Saturday and midnight Sunday were not paid penalty rates prescribed by cl 27.2(b) of the Cleaning Services Award;

(26)    in contravention of s 45 of the FW Act, several cleaners who worked public holidays were not paid penalty rates prescribed by cl 27.3 of the Cleaning Services Award;

(27)    in contravention of s 45 of the FW Act, several part-time cleaners who worked overtime between midnight Sunday and midnight Saturday were not paid penalty rates prescribed by cl 28.2 of the Cleaning Services Award;

(28)    in contravention of s 45 of the FW Act, several part-time cleaners who worked overtime on a Sunday were not paid penalty rates as prescribed by cl 28.3 of the Cleaning Services Award;

(29)    in contravention of s 45 of the FW Act, several cleaners who worked overtime on public holidays were not paid double time and a half for all the overtime they worked on those days as prescribed by cl 28.4 of the Cleaning Services Award;

(30)    in contravention of s 45 of the FW Act, several cleaners who took periods of annual leave were not paid the additional 17.5% loading prescribed by cl 29.4 of the Cleaning Services Award;

(31)    in contravention of s 293 of the FW Act, the non-award employees were not paid at least the National Minimum Wage for the time they worked;

(32)    on certain occasions, in contravention of s 323 of the FW Act, employees were not paid in full and in money.

Adverse action

(33)    in contravention of s 340 of the FW Act, adverse action was taken against Moona Hasan because she exercised a workplace right by seeking payment for 15 days worked;

False representations

(34)    in contravention of s 357(1) of the FW Act, representations were made to certain employees that they were engaged, or would be engaged, under a contract for services under which they were performing, or would perform, work as an independent contractor, when they were in fact and in law engaged and worked as employees under contracts of employment;

Record-keeping contraventions

(35)    in contravention of s 535 of the FW Act, records were not kept of the details of penalty rates or allowances, overtime hours worked and the start and cessation times of overtime worked for individual employees, leave taken by employees and the balances, if any, of leave entitlements, or liability for, and particulars relating to payments of contributions with respect to superannuation; and

Failing to provide pay slips

(36)    in contravention of s 536(1) of the FW Act, pay slips were not provided to a number of employees within one working day of the employees being paid.

34    These allegations are made against GPS and, in the alternative, National Contractors. Rosario is also alleged to have been involved in all the contraventions with the exception of the 33rd (adverse action against Ms Hasan) in which the Ombudsman contends Enrico was involved.

35    In most instances, the employees in respect of whom the contraventions were said to have occurred were not named in the originating application or the statement of claim. Instead, particulars were given to the effect that Excel spreadsheets containing relevant details were “available for inspection” at the Ombudsman’s Sydney office. I regard this as unsatisfactory. There is no apparent reason why a schedule of the employees to which each contravention relates could not have been attached to the pleading but no complaint was made about the pleading by any of the respondents at any time.

The issues

36    In broad terms the following issues arise for consideration:

(1)    Were all 51 employees or were some independent contractors?

(2)    If they were employees, who was their true employer? Were the purported labour hire arrangements a sham?

(3)    Were the employees covered by the awards were allegedly breached?

(4)    Have the elements of the contraventions been made out?

(5)    Were Rosario and Enrico involved in the contraventions as alleged?

Were all 51 employees rather than independent contractors?

37    This is a matter of critical importance as the obligations under the FW Act are imposed on employers and owed to employees.

38    In their defence GPS and Enrico denied that any of the 51 individuals the subject of the Ombudsman’s allegations was an employee of GPS and generally said that they did not know whether they were employees of National Contractors, a contention I regard as disingenuous in the light of the close relationship between the two companies and their management personnel. National Contractors admitted that 14 of the 51 were employees and said that another 14 were contractors. The alleged contractors are Wendy Bong, Juliana Botero Hernandez, Marco Diaz, Andrea Grigoletto, Marissa Hall, Moona Hasan, Thomas Sung Hong, Martyn Jones, Khaga Kandel, Charles Mascarenhas, Christine Meager, Giang Ngo, Jessica Alvarado Palma, and Jose Pena. All of these men and women gave evidence on affidavit except for Juliana Botero Hernandez and Jessica Alvarado Palma.

39    The question of whether someone is an employee or an independent contractor is not to be determined by what they may be called or, indeed, what they may call themselves. A label, consensual or otherwise, cannot affect the inherent character of the relationship: Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17 at 25 (Isaacs J). It is the substance or reality of the relationship that counts: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [24], [58]. Further, as the majority observed in Hollis v Vabu at [24]:

[T]he relationship between the parties … is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing the totality of the relationship between the parties; it is this which is to be considered.

(Citations omitted.)

40    Bromberg J discussed at some length the reason for, and the importance of, this approach in On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 214 FCR 82.

41    A contract of employment is based on personal service. Shortly put, the difference between an employee and an independent contractor is rooted fundamentally in the difference between a person who serves his employer in his, the employers, business, and a person who carries on a trade or business of his own: Marshall v Whittakers Building Supply Co (1963) 109 CLR 210 at 217 (Windeyer J). Control (and later the right to control) the manner in which the work is done was once determinative. For some time now, however, it is regarded as only one relevant factor (albeit an important one); the totality of the relationship must be considered: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29 (Mason J). Other indicia of an employment relationship include whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays are permitted; whether wages are paid ; what is disclosed in the tax returns; whether one party represents the other; for the benefit of whom does the goodwill in the business inure; how business-like is the alleged business of the putative employee – are there systems, manuals and invoices; and so on : ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 at [29] (Perram J) citing Stevens v Brodribb at 24 (Mason J) and 36–37 (Wilson and Dawson JJ).

42    As Bromberg J put it in On Call Interpreters at [204], the modern approach to determining whether someone is an employee is multi-factorial. His Honour described the exercise as one involving a level of intuition, referring at [205], amongst other things, to the following passage in Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 where Mummery J said:

The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.

43    So what does the evidence disclose about the position of the 51 people the subject of the Ombudsman’s allegations?

44    The evidence discloses that, despite some clumsy attempts to create relationships of principal and contractor, the inherent character of the relationship in each of the 51 cases was one of employer and employee. This is illustrated by the cases of the 14 individuals who were said by National Contractors to be independent contractors, but the evidence in relation to the remaining 37 is to the same effect.

45    I begin with Jessica Alvarado Palma.

46    Ms Alvarado did not give evidence and the circumstances surrounding her involvement with GPS are somewhat murky. Nonetheless, a picture can be obtained from the various records that were exhibited to the affidavit of Fleur Millington, the inspector in charge of the Ombudsman’s investigation. One of these is a Workplace Complaint Form, which contains a handwritten complaint by Ms Alvarado. The form also attaches her responses to the Ombudsman’s “Contractor decision tool” questionnaire.

47    Ms Alvarado’s answers in the questionnaire indicate that she came to work for GPS after responding to an advertisement on the Gumtree website. She said that she spoke to “Kristina Voytenko (HR)” who organised a meeting between her and the “SA supervisor”. Ms Alvarado apparently lived and worked in South Australia. She gave a South Australian address in her complaint form.

48    Ms Alvarado said that she had a contract, but had never been given a copy of it. She was told by her supervisor that she would be paid at the rate of $18 an hour and that the rate was not negotiable. She was also told by her supervisor what her working hours would be and that they would not alter from week to week. She said that the supervisor told her how to do the job. She was not required to provide any equipment or materials; everything was provided by GPS. She said that she received neither superannuation nor leave entitlements. In her complaint form, she said that she was asked to provide an ABN rather than a tax file number. An ABN, I interpolate, is an Australian Business Number. Companies registered under the Corporations Act are entitled to an ABN. Otherwise, to qualify for an ABN, one needs to be carrying on an enterprise (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 9-20) in Australia or, in the course or furtherance of doing so, make supplies that are connected with Australia: see A New Tax System (Australian Business Number) Act 1999 (Cth), s 8. A person is not entitled to an ABN if the only work the person performs is in someone else’s enterprise.

49    In about mid-January 2013 Wendy Bong, an Indonesian national, learned from a friend that GPS was hiring cleaners. He called the company and spoke to Kristina, presumably Kristina Voytenko. He was asked to come into the office for an interview. He was told he would be paid $15 an hour and that the position was permanent part-time. After some discussion about when he could work, he was told to start the following Monday, working Monday to Saturday. He was given various documents but no contract and was not asked to sign anything. On his first shift on or about 1 February 2013 he was met by Ross. He introduced himself as the big boss. Presumably this was Rosario. He gave Mr Bong a t-shirt with the GPS logo on the back. He showed him and the other new cleaners what to do and where and how to do their tasks. He also showed them the store room where all the equipment was kept. Mr Bong supplied no equipment of his own. He worked a nine hour shift with a one hour break for a meal. His supervisor (Kevin) told him when to take the break. He recorded his starting times in a log book kept in the cleaning room. Mr Bong worked a total of nine days (for which he was not paid) after which he was informed that GPS had lost the contract to clean the premises where he had been working. His affidavit, incidentally, makes no mention of National Contractors.

50    Juliana Botero Hernandez was another of the cleaners who did not give evidence in the proceeding. Nonetheless, some details of her work can be gleaned from her Workplace Complaint Form. She was hired to work as a cleaner at Goodlife gymnasiums (described elsewhere in the evidence as “health clubs”) in Fortitude Valley and Edward Street in Brisbane. She worked Monday to Friday 4.5 hours each week day from 20 March 2013 to 8 April 2013.

51    Ms Botero records the name of her “business owner(s) and/or manager” as Abraham Arguello, who, from about 1 December 2010, was the Queensland Operations Manager of GPS.

52    Mr Arguello swore an affidavit in the proceeding. He deposed that he was responsible for the cleaners working at the Goodlife clubs in Brisbane: for providing their equipment, showing them what to do if they needed help, and giving them warnings if they did not follow GPS’s rules for how the cleaning was to be done. He said that GPS had a uniform for its cleaners. He was responsible for showing the cleaners where they could find the daily checklist of their duties and telling the cleaners that they were to tick off the tasks as they completed them. Mr Arguello did not refer specifically to Ms Botero in his evidence (indeed, he did not refer to any cleaner by name) but it is reasonable to infer that his description of the system of work applied to her.

53    Marco Diaz is a Columbian national who came to Australia on a student visa. He was looking for work in late November 2012 when he was put in touch with Abraham Arguello. Mr Arguello told him he had two positions available for a cleaner — at Holland Park and Morningside in Brisbane. On 7 December 2012 Mr Arguello telephoned him and told him he could start work with GPS four days later. Mr Arguello picked him up at his house on 11 December 2012, introducing himself as a manager for GPS. He was driving a company car. Mr Arguello told him he needed to get an ABN and that the rate was $18 an hour. Mr Diaz had no idea what an ABN was. He had no cleaning experience and was not running his own business.

54    On 31 December 2012 Ms Voytenko sent Mr Diaz “the Sub Contractors Agreement” to review and return, signed, no later than 4 January 2013 “to ensure your payment”. The agreement was between National Contractors (“the Principal”) and Mr Diaz (“the Supplier”). This was the first time Mr Diaz had come across the name National Contractors. It bore no relationship to reality. It presupposed that Mr Diaz was supplying personnel to National Contractors when he did not. The Supplier was described in cl 4 as:

an independent operator in regards to the supply of the Service and must therefore exercise independent control, management and supervision of its activities in complying with its obligations under this Contract. The Supplier is not in any way an agent of, an employee of, or in partnership with, the Principal.

55    Yet Mr Diaz exercised no independent control, management or supervision. Throughout the time he worked for GPS, Mr Diaz worked under the direct supervision of Mr Arguello. He was directed when, where, and how to work, what machines and chemicals to use, and the order in which the work was to be done. He was required to sign in and out at the beginning and end of each shift. On arrival at the workplace he changed into a GPS t-shirt given to him by Mr Arguello. If Mr Arguello had problems with his work he would text him about them. When the vacuum cleaner was not working, he telephoned Mr Arguello.

56    Clause 13 of the agreement contained terms and conditions which included:

(a)    The Supplier is responsible for providing the cleaning supplies, chemicals and the cleaning equipment (excluding plastic bin liners) necessary to perform the Service to the required specifications.

57    But Mr Diaz had no responsibility for providing cleaning supplies chemicals or equipment. All the equipment he used was provided by GPS and if anything was running out he would tell Mr Arguello who would restock the cleaners’ room with anything that was needed.

58    By clause 18 the “Supplier” was required to take out public liability insurance of no less than $5 million and “comprehensive workers compensation insurance to cover all its employees” and provide certificates of currency.

59    Mr Diaz did not take out any insurance.

60    Mr Diaz had to ask where to sign the agreement as it only provided for the signature of a director. Ms Voytenko told him, in effect, to sign as director. He did as requested.

61    After Mr Diaz had been working for GPS for about a month, the assistant accountant, Mr Modi, sent him an email asking for his bank details and for two separate invoices for two periods of work attaching a template. I note that cl 13(d) of the contract required the Supplier to invoice the Principal twice monthly and the Principal agreed to pay the amount owing within 14 days of receipt of a tax invoice for the service rendered.

62    On around 30 January 2013, after Mr Diaz had been working for GPS for over six weeks, Ms Voytenko sent him a number of forms he was told he needed to complete “to formally start the cleaning position”. They included a “Sub-contractor Expression of Interest” and “Sub-contractor Fact sheet”. He had trouble filling them in and emailed Ms Voytenko telling her he did not know how to answer many of the questions and inviting her to do so for him. She obliged by return email. Most of the questions could not be answered and he was told to leave them blank. When he informed Ms Voytenko that he did not understand what insurance he was supposed to have, she told him that that was “ok for now”.

63    He applied to the ATO for an ABN, as Mr Arguello had directed him to do, but he was unable to obtain one. On 21 December 2012 the ATO wrote to him:

[Y]ou are not eligible … because you’re not commencing or currently carrying on an enterprise such as a business or commercial activity. If you commence carrying on an enterprise in the future you can reapply for an ABN.

64    When Mr Diaz told Mr Arguello he had applied unsuccessfully for an ABN, he was told to apply again. Once again, he did as he was told. He was asked a number of questions about his duties. After he replied to those questions, his interrogator told him:

Everything you are doing is like an employee, so the ATO is not going to give you an ABN.

65    Dana Starcevic from the ATO then emailed Mr Diaz stating:

As per our telephone conversation below are some examples of documents you could provide:

    Registration — Business, Trading name, vehicle (if applicable)

    Contract/agreement — work, rental (premises)

    Copy of Invoice for work completed

    Statement/Receipt for equipment/tools purchased

    Public liability insurance/Quotes

    Website details

    Brochures, pamphlets

    Business cards

Could you please provide the above documents or any other information/documents to prove that you are in business within 7 days (Due 28/02/2013).

If documents have not been received by the set date your application will be refused. Please contact me if you have any problem in providing these documents by the set date.

66    Mr Diaz forwarded the email to Ms Voytenko and asked her whether she had “any suggestion about what I should attach to them”. Mr Diaz said that he could not remember receiving a reply.

67    On 1 March 2013 the ATO wrote back to Mr Diaz rejecting his application for the same reason as before, that is to say, because he was “not currently carrying on an enterprise such as a business or commercial activity”.

68    Marissa Hall worked at two Goodlife health clubs in Queensland from 18 March to 12 April 2013. She obtained the work, which had been advertised on the Gumtree website, after attending an interview with Mr Arguello on 15 March 2013. They arranged to meet at one of the clubs and, after showing her around each of them, he explained to her how she would work, the hours she would work, and when she would start. He told her that she would be paid $18 per hour and the cleaning products would be provided by the company. Indeed, all equipment was provided by the company. He also told her that it was a requirement of the job that she have an ABN.

69    Unsure whether she was eligible for an ABN, Ms Hall contacted the customer service department of the Australian Taxation Office (ATO). She was informed that she was not entitled to an ABN because of the way she carried out her work.

70    Ms Hall worked as directed by Mr Arguello. On occasions her work was inspected by Rosario.

71    After she had been working for around two weeks, Ms Hall received a bundle of documents from Ms Voytenko. They included a Sub-Contractor Fact Sheet, Sub-Contractor Expression of Interest and an invoice template. The accompanying note asked her to complete all the paperwork and return it as soon as possible. Ms Hall found it difficult to complete because she did not have an ABN and did not understand what was meant by such things as workers compensation or public liability policies. She did not sign the documents and told Ms Voytenko she could not do so because she did not have an ABN. After she was pressed to provide an ABN she quit the job. She worked a total of 54 hours but was never paid. When she said she was leaving, she was told she would only be paid for 11 of the 18 days she worked because she had not given two weeks notice.

72    Thomas Sung Hong began working for GPS on 4 January 2010. He finished in early November 2013. He is a Korean immigrant. He was looking with a friend for additional cleaning work in about mid December 2009 when his friend mentioned GPS. They went to the GPS office on Parramatta Road where Mike offered him a cleaning job at the Goodlife gymnasium in Martin Place. He was told it was a permanent part-time position. Mike gave him a white shirt to wear during his shifts. The shirt carried the GPS logo on the front and back and a GPS phone number on the back.

73    Mr Hong was also given a number of documents. One was a tax file declaration form, which he completed and returned straight away. One was a contract bearing a GPS logo stating that it was for permanent part-time employment. Another was an Emergency Contact List in which Rosario was described as the Chief Operating Officer, Enrico as the General Manager of Client Services, and Alfredo Pucci (the brothers’ father) as Operations Manager. Mr Hong did not keep copies of the documents but remembered that the contract also recorded the rate of pay as $17.95 an hour and referred to annual leave and sick pay. When he noticed this, he said he wanted annual leave and sick pay, asked whether he would get them and was told its good; its in the contract. Mr Hong signed the contract and returned it to Mike. He also asked whether he would be paid superannuation at which point Mike asked Alfredo to make a super account for Thomas. Alfredo agreed and assured Mr Hong that they would take care of it.

74    On his first shift Alfredo showed Mr Hong around the gym and told him where and how to clean. All the equipment was supplied by GPS and marked with GPS stickers. At first he worked under Mikes supervision, then under Alfredos. On occasions Alfredo inspected his work. On one occasion in 2010 Alfredo was accompanied by Enrico.

75    Mr Hong worked the same hours each week unless he finished early or worked overtime. He logged his hours with the time logging system, Praxeo, which Alfredo showed him how to use. From time to time he received text messages from people at GPS saying that if he did not use the system properly, he would be penalised by deductions from his pay. He received pay slips, albeit only occasionally.

76    On one occasion when Mr Hong complained that his wages had not been paid, Rosario told Sandip or Sandeep (who I infer was Sandeep Kanbar, GPS’s accountant) to write up a payment plan for the outstanding wages owed to Thomas for the last 8 weeks including his leave. Rosario undertook that Mr Hong’s fortnightly wages would continue to be paid as usual, that on the alternate weeks he would be paid what he was owed in accordance with the payment plan, and that he would also get his leave. When Mr Hong inquired about superannuation, Mr Kanbar told him he would have to get his superannuation number from Jay (presumably Jainil Modi, the payroll officer). Later, when his pay was not forthcoming and he inquired again about his superannuation, Rosario told him that he was fired and forcibly ejected him from the room. Although Rosario rang the next day to apologise and reinstated him, he was later fired again while he was on annual leave.

77    Khaga Kandel is Nepali. He came to Australia in 2007. On about 31 January 2013 he saw an advertisement for a cleaning job on the Gumtree website. He applied for the job and received an email from Ms Voytenko a week later asking for his resumé. He was asked to go to the GPS office for an interview. The interview took place on 14 March 2013. Ms Voytenko explained the work and then told him:

The job is 40 hours a week. You will get paid $800 plus GST, thats $20 per hour plus GST. Plus you will get $40 per week to cover the cost of fuel for your vehicle for driving to and from the cleaning jobs. Here is a roster that shows you the places you would be cleaning each day and the number of hours you can clean at each place. You can only get paid for those hours in the roster.

78    He was asked whether he had an ABN. He said he did, as he was required to obtain one for a previous job. He was then given a Sub-Contractor Expression of Interest form and told to fill it out with his details. He did as he was asked but was unable to answer all the questions as, despite having an ABN, he had no business and no company.

79    Like the others, he was required to wear a t-shirt imprinted with GPSs name. He was also given an identification card showing his nickname Prashant under the GPS logo and contact details.

80    About two weeks after he started work he was sent a contract and various other documents in the mail. He said he signed and filled out the details in the documents but did not keep copies. One of them was a Sub-Contractor Fact Sheet. A copy of that document is exhibited to his affidavit. While some information is included there are no entries for ABN, Point of Contact, Workers Compensation Policy or Public Liability Policy.

81    While he worked for GPS he did not have or seek other employment. He did not pay his own superannuation. He did not have public liability, sickness or accident insurance. All the equipment and supplies were provided by GPS. He was told what to do and how to do it. He worked under supervision. He was given no choice as to when he worked at the various places to which he was assigned. Work at those places was allocated by roster except when he was directed otherwise. Ms Voytenko told him he what time he was to start work in the mornings.

82    Martyn Jones responded to an advertisement for a driver that appeared on the Gumtree website in February 2013. He was subsequently contacted by Ms Voytenko and invited to the GPS office at Forest Lodge for an interview. He met Rosario and Alfredo there, together with Ms Voytenko. They explained that the job would involve driving Alfredo who, he was told, worked for them. He was not asked for an ABN or to produce evidence of any insurance. He was not given a written agreement or asked to complete any forms. He was informed that he would receive payment of $15 per hour. He reported directly to Alfredo but Rosario gave him various tasks as well. He worked as directed. At around the time GPS moved offices from Forest Lodge to St Peters he was instructed to drive the company utility vehicle to assist with moving goods and equipment. After complaining that he had not been paid, he was told to provide timesheets.

83    Andrea Grigoletto, an Italian national on a succession of temporary visas, responded to an advertisement placed by GPS looking for experienced cleaners. He was then contacted by Ms Voytenko, who introduced herself as the Human Resources Manager for GPS, and accepted her invitation to come into the GPS office for an interview. At the interview he was told that he needed to get an ABN. He said he did not know what an ABN was. She told him: It is to work faster and better. A few days later he obtained some assistance from an organisation which helps European migrants who need work and, with its help, he obtained an ABN. Despite this, there was nothing about the work arrangements that indicated he was running his own business. He had no equipment or materials of his own and worked exclusively for GPS. He presented at the beginning of each rostered shift at the GPS office in St Peters to collect the GPS ute (a vehicle emblazoned with the companys name, website and telephone number) which, unless it was already loaded, he would load with the equipment and supplies. He then drove, together with the other cleaner or cleaners, to his place of work and when the work was completed returned the vehicle and supplies, as well as the car keys, to the GPS office.

84    Mr Grigoletto worked as directed by various GPS managers, usually Rosario or Anthony but sometimes Enrico or Alfredo. Rosario gave him four t-shirts sporting the GPS logo. While he was working he was required to wear the GPS t-shirt. Before accepting work for the business he had no discussions about what he would be paid. Two weeks after he began, he spoke to Rosario about the matter and he told him he would be paid $18 per hour. Mr Modi told him he needed to fill out invoices and gave him template invoices, showing him what he needed to write on them. He did as he was directed at the end of each week in the GPS office and gave them to Rosario or Mr Modi.

85    Moona Hasan responded to an advertisement on the Gumtree website for a sales position with GPS. At an interview conducted by Ms Voytenko at GPSs offices in Forest Lodge on 30 January 2013, she was told she needed to have an ABN. When Ms Hasan said she did not have one, she was told she could make it later. She was then interviewed by Enrico. After a discussion about her qualifications and work experience, the following exchange took place:

Enrico:    How much do you want to get paid?

Hasan:    $25.00 per hour.

Enrico:    No, we cant give that much.

86    She was told the days she would be working. There is no evidence to suggest that this was the subject of any negotiation. Enrico said to her:

You will be coming two to three days, you will not be working as a full-timer, you will be working as a part-timer … maybe later on you will work as a full-timer, depends on the quantity of work we have got.    

87    She completed an Employment Application form on National Contractors letterhead. She said she thought that National Contractors was the same company as GPS.

88    Ms Hasan was hired. Her role was to prepare tenders and proposals. She was informed by Ms Voytenko that her hours of work would be every Tuesday and Wednesday from 9.00am to 5.00pm, but from 5 March and with no prior consultation or any explanation, let alone negotiation as might be expected if she had been an independent contractor, the hours were reduced to 10.30am to 4.30pm. It does not appear that she was able to refuse work or undertake work on other days.

89    Ms Hasan worked at the GPS head office at Forest Lodge. She was not allowed to work from a different location, for example from home. She was given a GPS email address and access to a desk and computer. She reported to Joe Tuaimau, the Business Development Manager for GPS, who in turn reported to Enrico. Mr Tuaimau gave her the tender requests. She did not have to find potential tenders.

90    After she had been working at GPS for one or two weeks, Ms Hasan had a conversation with Mr Kanbar, in which she told him she had not been paid. He replied:

Everyone gets paid fortnightly. You should be concerned about your salary.

91    He did not say why she should be concerned.

92    When Ms Hasan asked Ms Voytenko when she would be paid she was told she needed to fill out some forms, all of which were on National Contractors letterhead. They included Sub-contractor Expression of Interest. The most notable feature of the completed document is the number of questions to which there was no response. The document is six pages in length. Ms Hasan entered information on only the first and the last page. The document asked for basic details of your organisation and for details of business activities. But Ms Hasan could give none, for she had no organisation or business. It asked for company registration details. But she had no company. It asked for financial information, including turnover during the previous 12 months, whether all obligations to pay creditors had been met and the name and branch of bankers who could provide a reference. Ms Hasan did not respond. It sought details of three recent contracts that are relevant to your company experience. She provided none. The form also sought details of insurance (workers compensation, public liability and other, including professional indemnity). She did not answer any of these questions. Nor did she provide information about quality assurance or health and safety policies or management systems.

93    Ms Hasan gave the forms to the payroll officer of GPS, Mr Modi who said they first needed to go through Enrico and then he, Mr Modi, would finalise them. At about this time she said Mr Tuaimau emailed her a template invoice headed Grouped Property Services. She did not know what to do with it and had to be told by Ms Voytenko to fill it with the hours she had worked.

94    Before receiving the forms, Ms Hasan was told to obtain an ABN. By text she asked Ms Voytenko whether she could provide her tax file number instead. Ms Voytenko replied that the position was offered on ABN. Ms Hasan told her she was confused while registering for abn. She pleaded that the form only [had] options for business or contractor, whereupon Ms Voytenko replied: Yes an ABN is a sole trader or contractor. That is correct. Ms Hasan said that, although she acquired an ABN, she did not use it for any purpose other than her work at GPS and that she did not have her own business or advertise her services. She was not allowed to delegate her work to someone else.

95    Charles Mascarenhas had an ABN because he was required to obtain one for an estimators position with a concreting contractor who refused to employ him otherwise. He never owned or operated his own business. Nor did he have a business name. He had no business premises, never owned equipment for use in a business, and had never been registered for GST. Nor did he have business-related public liability or workers compensation insurance and he was not asked for evidence of it by GPS.

96    Mr Mascarenhas responded to an advertisement on the Gumtree website on about 14 March 2013. He forwarded his resumé to the email address listed in the advertisement and was telephoned later that day by Ms Voytenko, who introduced herself as Kristina from Grouped Property Services. She said they needed someone urgently and asked him whether he could come in that day for an interview. Mr Mascarenhas presented himself at the GPS office in St Peters. When he arrived and before the nature of his job or any of his work conditions were discussed, he was given an employment contract and asked to sign it. He was not given a copy. At the same time he was also given a number of forms, which asked for details of his name, mobile number and address and his ABN. Some of the information he could not give and was told not to worry. He was not told why the ABN was necessary. Ms Voytenko told him that the position was part-time, so he assumed he was an employee. That assumption was confirmed in a conversation towards the end of his employment when he confronted Rosario about underpayment of wages. In that conversation, which took place on about 6 May 2013, he asked Rosario: Are you treating me as an employee or as a subcontractor? Mr Mascarenhas said that Rosario replied: Why do you think you are working as a subcontractor? You are not a subcontractor, you are part of our team and Im looking after you.

97    In any event, Mr Mascarenhass assumption was confirmed in practice.

98    After the interview Ms Voytenko gave him t-shirts and a vest which he was told to wear when he cleaned. The GPS name and logo appeared on the backs of the t-shirts. She also gave him an identification badge on which was printed: Grouped Property Services and other details including his name. Ms Voytenko told him when and where he would be working and directed him to come to the office before work to pick up the ute. She also told him that GPS would provide all the equipment and materials. His work was checked occasionally by supervisors. He understood he was not able to pay anyone else to do his rostered work with or for him. Shortly after he started working he asked Ms Voytenko how he was going to be paid and was told to send an invoice to GPS every two weeks. A pro forma invoice was sent to him by email.

99    Christine Meager applied for work as a telemarketer with GPS. She attended an interview at the Forest Lodge premises of the company on about 23 November 2012. Ms Voytenko, Enrico and Rosario were all present. No negotiation took place. She was told what work she would do and the days and hours she would do it. She was also told how much she would be paid. Enrico said she would be paid $18 per hour as a subcontractor and would need to have an ABN and submit invoices. She started work on 27 November 2012 at which point Ms Voytenko gave her copies of a number of documents concerning subcontracting and asked for her ABN. It is not clear whether Ms Meager ever obtained an ABN. Certainly, there is no evidence that she did.

100    A few days later Ms Voytenko asked Ms Meager to sign some documents and said she would get a proper contract organised but Ms Meager was never given a contract to sign. She was sent a template invoice and had to seek help in order to fill it out.

101    In answer to a notice to produce issued by the Ombudsman, National Contractors produced a Sub-Contractor Expression of Interest apparently containing entries written in Ms Meagers hand. Like the document completed by Ms Hasan, this is notable for its dearth of information. As in Ms Hasans case it contains her name, address and other contact details but no information in answer to the questions directed to the existence of a business she was conducting in her own or a company name or in partnership with someone else.

102    Ms Meager worked at the GPS office in Forest Lodge. She worked under supervision. The supervisor gave her details of companies, schools and preschools to telephone. He also gave her a script. Ms Meager believed she was employed by GPS. The telemarketing script required her to introduce herself as being from GPS. She used a GPS computer. When she fell ill and advised the office that she would not be coming into work, she was told that she needed to supply a medical certificate, otherwise she would not be paid.

103    Giang Ngo was unemployed in February 2013 and looking from work. A neighbour put him onto Christine, whom I take to be Ms Voytenko. On 15 February 2013 he received a text message asking him to email his details and experience to hrm@gpsfm.com.au. He did so and Ms Voytenko responded, asking him whether he had any cleaning experience. He replied that he did and gave her the details. Through his son he learned that Ms Voytenko said they would pay $15 an hour in cash, as well as petrol money and money for parking. Although he was unhappy with these terms, he agreed to a weeks trial. Ms Voytenko asked whether he had an ABN. He did not. On 18 February he met with Ms Voytenko at an office situated at 1/58 Parramatta Road in Forest Lodge (which was the office of GPS). Ms Voytenko told him there was a job for him at Conga Foods in South Strathfield starting the following day. She then said [w]e want you to be a subcontractor. He said he could not be a subcontractor, because he did not have his own business or an ABN, whereupon Ms Voytenko said: Ok, it will be $15 per hour cash in hand and asked him to write his name and details on a sheet of paper. The sheet upon which those details were recorded was entitled Sub-Contractor Expression of Interest but Mr Ngo understood that he was to be an employee. He denied signing a contract to do the work. The expression of interest form was the only document he ever completed.

104    Mr Ngo presented to Conga Foods the next day where he met Alfredo, whom I take to be Alfredo Pucci. Alfredo showed him where the cleaning equipment and products were kept and told him to clean various rooms. He did as Alfredo directed him. He was then told to return the next morning from 6.30am to 9.30am to clean the place again as he had been shown.

105    Mr Ngo returned to Conga Foods the following day. Alfredo gave him a t-shirt and told him to wear it when cleaning. It had GPSs name on the back. Alfredo subsequently worked as directed by Alfredo or Ms Voytenko. The equipment and chemicals he used were provided for him at the places he cleaned. He did not supply or pay for any of it himself. Alfredo supervised his work, checking up on it as he was finishing. He worked the hours nominated by Alfredo or Ms Voytenko. When Mr Ngo’s son advised Ms Voytenko that his father wanted to quit the job, he was told that he had to give two weeks notice.

106    Jose Pena responded to an advertisement on the Gumtree website for part-time cleaners in October 2012. He was asked to come in for an interview to an address in Parramatta Road where he was met by Alfredo and a woman. Although Mr Pena was uncertain of the womans identity, it is likely that she was Ms Voytenko. Arrangements for the interview were made by text sent by Kristina, he was informed in the text message that the interview would be with Kristina, and the text messages were sent from the same number as is shown by the evidence to be Ms Voytenko’s. He was told that all the cleaning equipment and chemicals would be provided, when he would start, and what the pay was. He was provided with a badge upon which the GPS name was printed together with his first name. At the interview he was asked if he had an ABN and was told he needed workers compensation and public liability insurance.

107    Mr Pena had an ABN. He said he acquired it some years earlier when he was thinking of setting up his own sub-contracting cleaning business and he had registered the name Speed Cleaning Services. But he said he never actually started the business and never operated his own business. He was not registered for GST purposes. While he, too, was given a Sub-Contractor Expression of Interest form to complete, he did not enter anything under Name of the organisation. He was also sent a contract with the same pro forma terms as that given to Mr Diaz but he refused to sign it because the money was less than what he had been told at interview he would receive. Although Alfredo told him he would send him a new contract he never received one.

108    While both the paperwork and the information given to Mr Pena at the interview suggested that he would be working as a sub-contractor, Mr Pena said that he was treated as an employee. First, he said, he was never again asked to sign the contract. Secondly, he said that his hourly rate was similar to the rates he was paid when he was previously employed as a cleaner and would have been insufficient to enable him to cover the extra costs of running his own business, including paying insurance. Thirdly, he never provided or paid for any of the cleaning equipment or supplies he used in his work and, whenever he needed any, he asked the managers or supervisors for them.

109    Furthermore, he worked under supervision, was directed as to when and where to work, and was required to record his start and finishing times in a particular manner. He was not given any opportunity to choose or negotiate his hours of work. On only one occasion was he given a choice as to whether or not to work on a particular job. He did not render invoices. All the income he received went directly into his bank account.

110    All the evidence points to the conclusion that the designation of workers as contractors was merely a device to enable GPS to avoid its legal obligations. In about July 2012 Mr Arguello, then Queensland State Manager, queried why cleaners were telling him that they had received documents from National Contractors and were to be transferred from TFN [presumably, tax file number] to ABN”. Rosario told him that everyone has to be on ABN from now on, so that they became subcontractors, like it or not. He explained that he did not want to have any problem with Fair Work Australia (now the Fair Work Commission) and said to Mr Arguello:

[A]s a subcontractor the company could pay them whenever and whatever they want because they are subcontracted and there is not a specific law about subcontractors.

111    I am well satisfied that each of the individuals in question was an employee and not an independent contractor. The way they worked and (save for the fact that some obtained ABNs on the instructions of GPS managers, were given documents to sign indicating that they were sub-contractors, and were required to submit invoices) the arrangements under which they worked were indistinguishable from the way the employed cleaners worked.

112    This is consistent with the way GPS presented itself to the world at large and to its clients.

113    An Employee Handbook, bearing the GPS logo and carrying Enrico’s name, was provided to clients. Copies were produced in answer to notices to produce issued by Ms Millington to some of those clients. Reading that handbook one could be under no misapprehension. The work of GPS was being conducted directly through its own employees.

114    A booklet entitled Company Profile provided by GPS to Manning Retail and produced to the Ombudsman under a notice to produce described how the business was run and under the heading Staff Development relevantly stated:

    Non sub-contracting utilisation policy

    Recruitment development & stability

    Employee demographic data & key HR data for compliance & reporting

115    In a quotation for car park cleaning services submitted to the operations manager of Wilson Parking on 4 November 2010, Keith Apps, the then Business Development Manager for GPS asserted:

All our staff are employed and paid on or above award wages … We do not sub contract any of our work apart from specialized requirements such as abseiling.

116    Clause 12 of the GPS agreement entered into between GPS and Wilson Parking on 3 June 2011 for the cleaning of premises known as Level 3, Bishops See in Perth was headed Employees. It included:

12.0    The contractor is to provide all labour necessary for proper execution of works, as laid down in Annexure 3.

12.1    The contractor shall employ only competent and qualified persons on the principal’s site

117    The records produced to the Ombudsman by clients of GPS and tendered in evidence show that these subclauses were part of GPSs standard form contract. They also appeared in the contracts with Manning Retail made on 30 July 2010; U Beaut Management Services made on 9 November 2011; Star of the Sea Luxury Apartments in Terrigal, NSW, also made on 9 November 2011; the Trustees of the Roman Catholic Church for the Diocese of Maitland – Newcastle trading as St Patricks Early Education Centre made on 1 December 2011; and with Gordon & Gotch Australia Pty Ltd on 2 February 2013

118    A letter by Mr Apps to the business manager of Orana School in the ACT on 8 November 2010 included the following statement:

No sub Contracting

Please recognise that part of our company policy is that we do not sub contract our services. All cleaning services are delivered by employees. This we believe ensures a higher quality in delivery and greater control in site management and supervision.

(Original emphasis.)

119    This assurance was given repeatedly. A letter to Mr Bob Lloyd of Star of the Sea dated 30 August 2011 and signed by Enrico as General Manager of Client Services for GPS and Shane Breadsell, GPSs Business Development Manager, included the following representation:

The company does not engage subcontractors for normal daily cleaning, as it is our belief that clients suffer because it becomes impossible to guarantee high quality outcomes on a daily basis where second and frequently third parties are involved. Subcontractors are only engaged for specialist one off tasks such as high level external window cleaning and these activities are closely monitored …

(Emphasis added.)

120    The letter went on to say:

Ongoing Cleaning of existing premises

Cleaners will be allocated and directed to sections or floors where they are required to clean … The work is to be satisfactorily completed within time frame guidelines as specified in the client contract (specifications).

Staff are inducted in Safe Work Methods and OHS system requirements. The particular work process methods (order of cleaning operations) — commencing with a hierarchy from dusting through to vacuuming, mopping and with separated tasks such as toilet and kitchen areas cleaning — strict procedures for the use of cleansers and implements — kept separate and colour-coded

For ongoing cleaning contracts GPS conducts staff appraisals at regular intervals (usually every 3 months) or more frequently if negative client feedback is received — follow-up involves additional training, monitoring, possible movement to another site with different tasks and as a last resort termination of employment. Site Supervisors implementing these tasks are required to refer and act in accordance with GPSs Employee Competency Establishment Procedure (based on AQTF standards) and the companys Human Resources and Training Procedure.

Client Property & Assets

As a safeguard to client assets GPS has implemented screening and induction processes to ensure that only candidates who have satisfied the most rigorous probity checks are employed by the group at sites where integrity and honesty are paramount. All staff are inducted into our Code of Integrity. GPS carries out annual staff evaluations and re-examines probity issues as part of this process

Integrity

GPS further guarantees clients a trouble free contract through the introduction of a Code of Integrity Conduct. All cleaning staff are required to read, understand and comply with the strict requirements. Any breach of the code results in instant dismissal, the code has 16 requirements of staff adherents and all relate to how cleaners work and respect client sites.

121    The letter also represented, that start and finishing times of staff were monitored, that all hours per site attendance were tracked on the Praxeo time-logging system, and that staff were to use GPS equipment, delivered to sites and stored in secured cleaners rooms.

122    On 31 January 2012 Enrico and Rosario attended a meeting with the Star of the Sea management. An email sent to them the next day provides a summary of what was discussed at the meeting. It recorded that Ross agreed to finalise outstanding pays owing to staff by 3 February and:

Ross to provide training for staff in the use of glass cleaner.

123    It also referred to low staff morale. It noted:

Ross and Enrico to meet with staff over the next 2 weeks.

124    Furthermore, it mentioned:

GPS to continue to advertise for staff.

125    On 12 September 2012 another meeting took place at the Star of the Sea apartments. The meeting was apparently convened to deal with complaints made to the management of the apartments about GPSs treatment of its workers. Rosario and Enrico were present, so too Michael Buettner representing U Beaut Management and Mr Lloyd of Star of the Sea Management. Amongst the documents exhibited to Ms Millingtons 2015 affidavit were minutes recording what happened at that meeting, putting GPS on notice … that GPS are to fulfil their contract obligations immediately or withdraw from the contract. Amongst the obligations to be fulfilled immediately were:

    GPS cleaning staff being paid correctly and on time;

    GPS staff being paid all entitlements including outstanding superannuation payments; and

    GPS staff not being offered to work for an ABN Number.

126    GPS represented to its clients in contracts and tenders that it did not sub-contract its services and invoices issued by GPS to these clients, charging for the supply of labour without reference to any sub-contracting arrangements. The “Company Profile” published by GPS did not mention any relationship with National Contractors. A statutory declaration signed by Enrico as “the Director of Grouped Property Services” on 9 October 2012, produced by one of the clients, Ardent Leisure Limited, declares that:

1.    The rate of pay for the employees is compliant with legislative requirements;

2.    Wages are paid as they fall due;

3.    All remuneration payable to relevant employees for work under the contract has been paid.

127    In Hollis v Vabu, a case about bicycle couriers engaged under contracts in which they were referred to as contractors, the facts as summarised by McHugh J at [64] were as follows:

Vabu employed twenty-five to thirty bicycle riders, as well as a number of motor vehicle drivers, as couriers. It provided radio equipment to the bicycle couriers and allocated delivery jobs to them by radio. The couriers were required to be available at a certain time every day and were not allowed to refuse the delivery jobs that were allocated to them. Vabu issued uniforms to the couriers and required them to wear the uniforms. It also directed the couriers to conduct their work in accordance with specific instructions concerning dress, appearance, language, delivery procedures and dealings with clients. The couriers had to provide their own motor vehicles or bicycles. They received no salaries or wages but were remunerated in accordance with the deliveries that they made. They were taxed as independent contractors. Vabu deducted a certain amount from the couriers payments each week to contribute towards the cost of Vabus insurance.

128    The plurality (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) held that the relationship was one of employer and employee, not principal and contractor. Their Honours regarded the following factors as indicative of an employment relationship (at [48]ff):

    the couriers were not providing skilled labour or labour needing special qualifications;

    the couriers had little control over the manner of performing their work: they were required to be at work by a certain time (9.00am), were assigned in a work roster according to the order in which they signed on, and were unable to refuse work;

    it was unlikely the couriers would have been permitted to delegate any of their tasks or work for another courier operator during the day;

    the couriers were presented to the public and to those using the courier service as emanations of Vabu; they were required to wear Vabu livery, that is to say, uniforms bearing Vabus logo; they were unable to wear particular attire, and were told that they should always be aware that they were a direct representation of the company; and

    Vabu superintended the couriers finances and there was no scope for the couriers to bargain for the rate of their remuneration; Vabu arranged for the provision of insurance for the couriers and deducted the amounts from their wages; and the arrangements for taking annual leave left the couriers with limited scope for the pursuit of any real business enterprise on their own account ([55]).

129    The plurality then emphasised the considerable scope for the actual exercise of control by Vabu. At [57] their Honours said:

Vabus whole business consisted of the delivery of documents and parcels by means of couriers. Vabu retained control of the allocation and direction of the various deliveries. The couriers had little latitude. Their work was allocated by Vabus fleet controller. They were to deliver goods in the manner in which Vabu directed. In this way, Vabus business involved the marshalling and direction of the labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabus business. It was not the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time; rather, as the two documents relating to work practices suggest, to its customers they were Vabu and effectively performed all of Vabus operations in the outside world. It would be unrealistic to describe the couriers other than as employees.

(Original emphasis.)

130    In the present case the bulk of the GPS business consisted of providing services, mostly cleaning services, to other businesses. It involved the marshalling and direction of the labour, principally of the cleaners. Like the couriers in Hollis v Vabu, these individuals had little, if any, latitude over their work. Work practices were imposed upon them. They had no control over the allocation, manner or hours of work. They were not able to delegate their work to others. They did not supply their own equipment or materials. They did not carry their own insurances. They did not advertise their services. There was little or no scope for bargaining either over wages or conditions. Although many of them were required to have ABNs, that alone did not make them contractors. Nor did the fact that they invoiced for their services. In each instance they did so because it was a condition of their employment. Although some submitted Sub-Contractor Expressions of Interest and some entered into written agreements as independent contractors, they were not in truth sub-contractors. They had no businesses of their own and none of the trappings of a business. Nor did they intend to pursue their own business interests. They were servants of GPS. Furthermore, like the couriers in Hollis v Vabu, their efforts, particularly those of the cleaners, comprised the very essence of the public manifestation of [the GPS] business (Hollis v Vabu at [57]). They were presented to the public and those using the services of GPS as emanations of the company: see Hollis v Vabu at [50]]. As in Hollis v Vabu, it would be unrealistic to describe any of them as independent contractors.

Who was the true employer: GPS or National Contractors?

131    This, like the previous question, involves, as Buchanan J put it in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174 at [57], a search for substance and reality.

132    The principles are settled. A convenient summary appears in the judgment of Finn J in In the matter of C&T Grinter Transport Services Pty Ltd (in liq) & Grinter Transport Pty Ltd (in liq) (controller appointed) [2004] FCA 1148 at [20]:

(1)    A contract of service cannot be transferred by one employer to another or novated as between them without the employees consent … Questions of estoppel apart … the employees consent must be a real one whether express or implied ….

(2)    The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]–[44].

(3)    Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship …. In determining the identity of a disputed employer, the Court is entitled to consider the reality of purported contractual arrangements: Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties relationship: ibid; Pitcher v Langford [(1991) 23 NSWLR 142, at 149; Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454.

(4)    Conversations and conduct at the time of the alleged engagement of the employee [are] of considerable significance ... The beliefs of the employees as to the identity of their employer [are] admissible and [are] entitled to weight …

(5)    In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners:

… it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham.

See Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd, FCA, Ryan J, 19 November 1998.

133    The existence of a contract of employment may be implied from the conduct of the parties: Damevski v Giudice (2003) 133 FCR 438 at [81]–[88] (Marshall J), discussed in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 at [158] (North and Bromberg JJ). The search for the meaning of any contract involves an objective analysis.

134    So what is the true position? What does the evidence disclose was the substance and reality here?

135    In answer to a notice to produce served on it by the Ombudsman, GPS it produced a document entitled Agreement between [National Contractors] and [GPS] dated 1 November 2012, signed by Enrico and Ms Voytenko. Clause 2 states:

2.    INDEPENDENT SUPPLIER

The Supplier is an independent operator in regards to the supply of the Services.

136    Yet, the facts reveal no independent relationship. Rather, the evidence shows that National Contractors, like the other purported labour hire companies, did not function as an independent business but as an instrument of GPS.

137    It was an agreed fact that, as with Wash & Go, RPEP and Reggio, GPS owned and supplied all the assets used at the premises of National Contractors, including hoses, pumps, vacuum cleaners, cleaning products and uniforms. Read in the context of the evidence these admissions should be taken as indicating that these assets were used for cleaning the premises occupied by the clients of GPS.

138    National Contractors generated little or no income or operated at a loss, declared no dividends, owned no real estate, and had an issued share capital of $1. Banking records show that the source of all its income was money transferred by GPS. It had none of the hallmarks of an independent business. Nor is there evidence of an intra-group arrangement. National Contractors does not feature on the GPS website and has no website of its own. There is no evidence that it had any systems in place for employing any staff. On the other hand, there is evidence that GPS had an occupational health and safety policy for employees & contractors, which was supplied to cleaners despite GPSs contention that it did not employ staff.

139    Clause 13 of the contract between GPS and National Contractors required National Contractors to take out and maintain public liability and comprehensive workers compensation insurance but it was GPS, not National Contractors, which took out workers compensation insurance and there is no evidence of National Contractors taking out any insurance policies.

140    From 1 September 2012 until her resignation in 2015, Ms Voytenko was National Contractors sole director, a position to which she was appointed less than three months after her 22nd birthday. Despite her position as director, she appears to have had no authority. She was not a signatory to any bank account opened in the companys name. She did not make any of the decisions to hire or fire staff. She was employed as the human resources director of GPS. Like other employees, she complained to Rosario at GPS when she was not paid her proper entitlements.

141    In almost all cases the employees applied for work with GPS, usually in response to advertisements placed by GPS. They were all interviewed by GPS employees at GPSs registered office. Offers of employment were made by GPS employees. The denial contained in GPSs defence that it employed any of the employees and that it holds any of the records relating to them is fatuous. All payroll matters were handled by GPS accounts staff, all human resources issues, including requests for leave, by GPSs human resources department. When pay slips and group certificates were sent, they were sent by the GPS accounts department. When queries or complaints about non-payment of wages and entitlements were made, they were made to and handled by GPS. By an email sent on 21 August 2012, staff were directed to make any complaints about issues relating to their pay to GPS by emailing support@gpsfm.com.au in the first instance and, in the final instance, the GPS accounts department. When they worked they wore shirts and badges indicating that they were employed by GPS. Some of them drove to work or were driven to work in a car emblazoned with the GPS name. Mobile telephone text messages aside, communications about work were sent by email to GPS email addresses. The ultimate supervisor of the work of all the employees was Rosario, GPS’s Operations Manager.

142    Generally speaking, it was only after they were hired that the employees learned of the existence of National Contractors. None of them appears to have given informed consent to a change of employer. Letters of offer of work with National Contractors carried the web address of GPS.

143    National Contractors did apparently advertise for cleaners. Advertisements placed with Gumtree, however, asked applicants to address all correspondence and résumé to hrm@gpsfm.com.au and invited them to view our website: www.gpsfm.com.au. That, of course, was the address of GPS and, as I have already observed, the GPS website contained no reference to National Contractors.

144    This practice of GPS offering employment purportedly with another so-called labour hire entity appears to be longstanding and to predate the establishment of National Contractors.

145    Alfonso Alcuitas, for example, was offered employment with one of the earlier purported labour hire entities, RPEP. The penultimate paragraph of his letter of offer read:

On behalf of GPS we welcome you as our new staff member.

146    Anna Plows was sent a letter offering her employment with Reggio, but the letter was sent by the Human Resources Department of GPS from the registered office of GPS. It carried the web and email addresses of GPS. It was headed “Employment Contract — Grouped Property Services”.

147    The applicant named in an Employer’s Declaration in Support of Application for Approval of Enterprise Agreement lodged with the Fair Work Commission (then Fair Work Australia) by Rosario was GPS and “Ross Pucci and GPS” were named as “the employer or employers to be covered by the agreement”. The name of the agreement was “RPEP Holdings Pty Ltd ACN 120 840 397 (Cleaning) Enterprise Bargaining Agreement”.

148    Sometimes a document purportedly issued by National Contractors would refer to another company. For instance, Paul Bacon signed a form entitled Induction ostensibly issued by National Contractors for work at the GPS head office but referred to security conditions imposed by RPEP, stated that Reggio required a criminal record check, and that permanent appointment to Reggio was subject to certain conditions. The document carried the address, telephone and fax numbers of GPS.

149    Mr Bacon applied for a job with Catherine Cleaning Services Pty Limited, which (unlike National Contractors) is described in some of the documents as an associated company of GPS. But Mr Bacon was interviewed for the job by a woman who introduced herself as the Human Resources Manager from [GPS]. It was she who offered him work. He wore t-shirts, which from 2010 carried the GPS logo and which Rosario instructed him to wear, saying it was company policy. He also received a copy of the Occupational Health and Safety Handbook issued by GPS. He said:

Shortly after I started work, my understanding was that the national business was called Grouped Property Services, but that Catherine Cleaning Pty Ltd and Wash and Go Pty Ltd were connected to it in some sort of way, because the business I phoned was called Catherine Cleaning, but my first payslip was issued by Wash and Go Pty Ltd, whereas Kate introduced herself as being from GPS, and sometime in 2010, I was given a t-shirt with GPS on it by Ross. It was never explained to me by Kate, or the human resources manager at the head office that was the last to commence during my time of employment (whom I knew as Kristina Voytenko[)] who my actual employer was. Because of this I believed that Catherine Cleaning and Wash and Go Pty Ltd were names used for marketing or accounting purposes and I was actually employed by the company who negotiated the cleaning contracts called Grouped

Property Services

150    Tammy May was offered employment by the then Client Services Manager of GPS, Rosie Thomas, in response to an advertisement on the Gumtree website. Ms May said the company changed its name three times while she was employed, from Catherine Cleaning Services to RPEP, from RPEP to Reggio, and then from Reggio to National Contractors. She said that she generally became aware of this because the name that showed up on her bank statements changed. In or about December 2012 she received a number of documents by mail printed on National Contractors letterhead and assumed that Reggio had changed its name to National Contractors. When the name change[d] from RPEP to Reggio and from Reggio to National Contractors she was asked to sign paperwork.

151    Included in the exhibits to her affidavit was a letter addressed Dear Employee, enclosing a Declaration re change of employment details as of the 1st July 2011. It read:

Please see attached Declaration re change of employment details as of the 1st July 2011.

This is required due to streamlining and amalgamating all employees across all groups, payroll process and current EBA terms & conditions.

You will note the following:

1.    Declaration form requiring your confirmation and signature or (respond back with your acceptance). Example - I agree with the attached declarations dated the 1st of July 2011.

2.     Tax File Number declaration TFN (copy) original will be forwarded via mail to your state manager for you to complete.

It is necessary you complete the above documents and return back within 14 days of receiving.

(Original emphasis.)

152    The letter was signed Ross Pucci, Chief Operating Officer, [GPS] and bore his GPS email account.

153    One of the documents on National Contractors letterhead sent to Ms May in December 2012 was a Code of Integrity Conduct — Cleaners and Admin Staff which began and ended with the words or words to the effect of:

The undersigned staff member of Reggio Investments has been inducted in the companys Code of Integrity Conduct for Cleaners (and admin staff) …

154    At the time she was sent the documents on National Contractors letterhead she was also sent a copy of an Employee Handbook, which was also exhibited to her affidavit. That was a publication of GPS, dated 2 June 2009, directed to employees of GPS and carried Enrico’s name as Compliance Manager.

155    For the most part the employees in question believed they were employed by GPS and did not understand anything about the other companies or believed that National Contractors, its predecessors and GPS were one and the same company. This is understandable, given the way the operation was conducted.

156    Mr Arguello, who signed letters of offer from a succession of Pucci companies, always believed he was employed by GPS. He said in his affidavit:

[A]s far as I knew, I was employed by GPS. This was because everything was done under the GPS logo; in all of my conversations and emails with customers and the cleaners, the company was GPS. Also, even though the company name on my contract changed throughout my employment, my duties never changed and I always reported to Ross Pucci.

157    GPS also supplied him with an iPad and iPhone, a jumper with a GPS logo, and a car for him to drive emblazoned with the GPS logo.

158    Notably, Mr Arguello secured the job after responding to an advertisement for a State Operations Manager with GPS. After he lodged his application, he was contacted by the human resources manager for GPS and interviewed by Rosario. After working for GPS for about a month as its Victorian State Manager, Rosario told him he wanted him to move to Brisbane and on 3 December 2010 he signed a one-year contract with RPEP. At the time he pointed out to Rosario that the contract says RPEP. Rosario replied:

Dont worry about it. Its just for legal purposes but youre working for us, youre working for GPS. Its the same company.

159    On 16 December 2011 Mr Arguello signed a new contract with Reggio. Rosario signed on behalf of Reggio. When Mr Arguello queried why the company had changed from RPEP to Reggio, he was told that the directors had so many companies and they were consolidating them.

160    A daily checklist of duties bearing the GPS logo was sent to Mr Arguello by GPS head office for distribution to the cleaners. All equipment and cleaning products were supplied by GPS. The cleaners were given a uniform with the GPS logo.

161    Mr Arguello received many complaints from cleaners about the amounts they were being paid. He said that, if a cleaner complained, Rosario would tell the cleaner to call Monique, Jay or Sandeep in the GPS Head Office.

162    Mr Arguello had difficulties of his own. He said that when he moved to Queensland he had an agreement with Rosario that GPS would pay his relocation expenses. Initially it did not, and only reimbursed him much later. He discovered that no superannuation contributions had been made on his behalf. After he raised the matter with Rosario and Mr Kanbar, he said he received a letter setting out the amounts he was owed. That letter, dated 14 February 2012, which also referred to outstanding holiday pay, was written on GPS letterhead and signed:

Sandeep Kanbar

Grouped Property Services Pty Ltd

163    Mr Kanbar was the Head Accountant for GPS.

164    Mr Arguello said that decisions as to whose employment should be terminated were made by Rosario. Mr Arguellos own employment was terminated on 14 September 2013. Although he was issued with a written warning by Ms Voytenko on National Contractors letterhead, the document also referred to the website of GPS and his second written warning was issued by Ms Voytenko as Human Resources, [GPS]. Although his employment was purportedly terminated by Ms Voytenko, as Human Resources Manager for National Contractors on National Contractors letterhead, a follow-up email sent the same day, reminding him of the confidentiality clause in his contract was sent from her GPS email address and signed in her capacity as Human Resources, [GPS].

165    Marco Diaz said that he thought he was working for GPS because the uniform he had to wear had GPSs name on it and all the people he had to deal with in central office were from GPS.

166    Tui Tane believed she was employed by GPS because GPS appeared on the forms she was required to sign and she received emails from Ross Pucci and Jay with GPS as part of their sign off under their names. She notified Rosario of the hours she was working by emailing him at GPS. Mr Pucci replied from his GPS email account that her pay had been processed and she would receive a pay slip.

167    Tashi Wangchuck thought she was employed by GPS because it was named on the advertisement she answered. She said that she did not really understand the relationship between the companies.

168    It seems that it was only after the Ombudsman served a notice to produce on National Contractors that Mr Modi, the payroll officer for GPS, emerged as the payroll officer for National Contractors using a Gmail email account. In an email to Ms Millington on 30 April 2013 Mr Modi denied that Xiao Teng, Alison Hellyer, Paul Saint James, Christine Meager, Paul Bacon, Angela [Bustos] Alvarado, Freddy Gomez [Herrera] and Anna Plows were engaged by National Contractors. Yet, in a table annexed to its defence, all except Xiao Teng are said to be either employees or contractors of National Contractors.

169    After Lara Satchell quit her job, she emailed Rosario, copying in, amongst others the human resources and accounts departments of GPS and Enrico. Her email began with an expression of her disappoint[ment] with the way she had been treated by GPS. She referred to an earlier discussion with Rosario in which he agreed to advertise her position and she agreed to give three weeks notice before leaving but complained that GPS had not stuck to [its] legal obligations. She pressed for ALL of [her] final payment including the wages and holiday pay she was owed to be paid before she left and said she had been assured by Rosario and Sandeep (to no avail) that this would happen. She also said that she needed a group certificate in order to claim her tax back.

170    Rosarios response (as Chief Operating Officer of GPS) implicitly, if not explicitly, accepted that she was employed by GPS:

Thank you for your email however the medical certificate [does] not cover your absence whilst away last week as it[’]s dated yesterday and outside the time of your absen[ce] furthermore we have every right to request a medical certificate after any long weekend just pas[s]ed.

Lara in addition we supported you during the last 3 months of your employment … , obviously you forgot however we sat back and watched your performance decline …

Moving forward Jay has worked out your final pay and notice period which he will process.

171    When Tammy May advised Ms Voytenko that she was leaving GPS, she was not disabused of the notion that GPS was her employer.

172    After complaints by cleaning staff were made to GPS clients about non-payment for work done, emails were sent to Enrico and Rosario at GPS. The responses did not include any denial to the effect that the complainants were not GPS employees but employees of a labour hire company as one might expect if that were the true situation.

173    For example, documents produced to the Ombudsman by Ardent Leisure (exhibited to Ms Millingtons 2015 affidavit) include an email chain referring to complaints made by two cleaners supplied by GPS about not being paid for work. Attempts were made to contact Ross without success after neither cleaner turned up for two shifts in March 2013. One complainant, Craig, said he would not be cleaning as he had not been paid by GPS. It was noted that both cleaners were not available for unpaid work. Bernadette Graus from AMF Bowling Centres, a division of the Ardent Leisure Group, emailed Rosario and Enrico on 29 March 2013:

Good morning Ross and Enrico,

Firstly, may I wish you and your families well for the Easter period.

Im wondering if you could please advise with an action plan

Please see the emails below ... Can you please organise credits for all the dates below where you have breached your service agreement.

An update on ensuring regular cleaning is being completed as of today is the expectation.

174    Rosario forwarded the email to Ms Voytenko with an instruction to investigate and replied to Ms Graus in his capacity as Chief Operating Officer of GPS:

Thank you for your patience.

I have had accounts and HR investigate the matter as you may not be aware Wendy the old cleaner ceased her own employment with the group [without] providing notices to either myself and the HR department, Craig [on] the other hand is rostered over the whole week until there is a new candidate implemented. All pays to Wendy and Craig have been processed in accordance with statutory requirement this can be furnished next week if you wish when accounts and HR return to HO.

In relation to gum tree add this is correct GPS users not only this platform of adverting media but many others also. I will have accounts send the credits for the dates in question.

I have not had any email or phone calls from the centre [itself].

I will and have put a plan together for site to have the duties that have been missed to be completed [within] the next few days with additional time spent on site.

175    There is no suggestion in the email that the cleaners were not employed by GPS.

176    After another such email on 5 April 2013 about an employee, Marco, in all likelihood Marco Diaz (described by Goodlife Health Club, another division of Ardent Leisure, at Morningside, as the best performing cleaner ever supplied to us by GPS), who told the club he was quitting because he had not been paid in nearly two months, Rosario’s reply of the same date (as Chief Operating Officer of GPS) began with the following statement:

I communicated with Marco yesterday and so did GPS payroll.

(Emphasis added.)

177    It is theoretically possible, of course, that GPS and its representatives, in particular Enrico and Rosario, deceived its clients into thinking that it employed all staff when the reality was otherwise. On balance, it is far more likely, however, that GPS employed them all.

178    As Buchanan J observed in Ramsey at [77], while labour hire arrangements are certainly not illegal, more than mere lip service must be paid to the separation of legal personality provided by individual incorporation. As his Honour went on to say at [78]:

[I]t must be possible to identify a rational explanation for the arrangement and the explanation must be satisfactorily related to an intelligible business objective. That is so because otherwise, doctrines of agency, at least, may operate to defeat a bare claim of independence and isolated liability, supported only by a bare reference to separate incorporation. That is particularly likely to be the case when: the separate employing company is completely reliant upon a company to which it purportedly supplies labour; it has no assets and no management structure of its own; and it exists only as a corporate shell to protect another company, which does have assets, from liability to employees. In such a case a court might not hesitate long before pronouncing the arrangement ineffective or, in a more serious case, a sham.

179    Here, one struggles to find a rational explanation for the labour hire scheme which is satisfactorily related to an intelligible business objective. The very nature of the GPS business was supplying staff to other businesses to clean their premises. The arrangement with National Contractors does not apparently relate to any legitimate business objective. It certainly does not seem to have been made for reasons of administrative efficiency or legitimate costs savings. To the contrary, the scheme was manifestly inefficient because it involved the client businesses paying GPS, National Contractors invoicing GPS, and GPS transferring monies to National Contractors. Furthermore, both GPS and National Contractors would have had to obtain workers compensation and public liability insurance.

180    In Ramsey Buchanan J found at [98] that the purported labour hire company had none of the characteristics of an employer. His Honour continued:

It had no business of its own. It earned no money. It had no interest in the engagement of any employee except as a favour to the respondents. Ramsey Food Processing, on the other hand, had every right and privilege normally associated with an employer in its dealings with the workforce ... It had the right to recruit employees and to dismiss them. It had the right to decide what work was to be performed and by whom. With those rights came corresponding obligations. Those obligations were not displaced by the inter-positioning of Tempus, the Tempus bank account or the Tempus letterhead.

181    And so it is here. National Contractors had no business of its own and earned no money. It had no interest in the engagement of any employee except as a favour to GPS (or its management). GPS, on the other hand, had all the rights and privileges normally associated with an employer in its dealings with its workforce, including the right to hire and fire and the right to decide what work was to be performed, in what manner, and by whom. Its corresponding obligations were not displaced by the inter-positioning of National Contractors or its predecessors, the National Contractors bank account or the National Contractors letterhead.

182    I find that in substance and reality all the employees in question were employed by GPS. As Buchanan J observed in Ramsey at [92], there is no support in the authorities for the proposition that all that is required for a legally effective labour hire arrangement is the formal establishment or purchase of a separate legal entity, the establishment of a separate bank account, and the use of a new or different name. Yet, that is all that is present here.

Were the employees covered by the relevant awards?

The “agreed” facts

183    Most of the alleged contraventions concern breaches of either the Cleaning Services Award or the Clerks Modern Award.

184    On the question of award coverage, the Ombudsman merely stated:

27.    All parties agree that the Cleaning Modern Award applied to the employment of Cleaning Employees.

28.     All parties agree that the Clerks Modern Award applied to the employment of the Administrative Employees.

185    The term Cleaning Employees is defined, in the Ombudsman’s submissions, as “51 persons who were or are engaged as cleaners”. Those 51 people are not named in the submissions. At para 9 of the Ombudsman’s statement of claim, however, “Cleaning Employees” is defined as “the 42 employees designated as Cleaning Employees in Table 1 of Schedule 1”. Their names are listed in Annexure A to these reasons. The identity of the other nine alleged cleaning employees is unclear. But as this case concerns 51 employees in total, not all of whom are cleaners, it seems likely that the figure in the submissions is an error.

186    The reference to “Administrative Employees” in the Ombudsman’s submissions is toa number of clerical and administrative employees”. Fortunately, they are named in Table 1 of Schedule 1 of the Ombudsman’s statement of claim. There are six administrative employees: Aisling Dunn, Moona Hasan, Christine Meager, Jainil Modi, Lara Satchell and Md Shamsuzzoha.

187    The basis for the Ombudsman’s assertion that the award coverage of these employees is agreed appears to be the statement of agreed facts and issues that she filed on 23 March 2015. That document states:

6.    All parties agree that the Cleaning Modern Award applied to the employment of Cleaning Employees, which include, as a minimum, those persons identified as employees in Schedule A of National Contractor’s (sic) defence.

7.     All parties agree that the Clerks Modern Award applied to the employment of the Administrative Employees, which include, as a minimum, those persons identified as employees in Schedule A of National Contractor’s (sic) defence.

188    The first thing to be said about this “agreement” is that it is not nearly as comprehensive as the Ombudsman’s submissions suggest. Schedule A of National Contractors’ defence lists 30 people, of whom only 14 are admitted to be employees. Ten of those 14 are said by National Contractors to be cleaning employees, one is said to be an administrative employee and three others are not classified as either cleaning or administrative employees.

189    The second thing to be said is that it is not at all apparent that these “agreed facts” were actually agreed by all parties. During the hearing the Ombudsman handed up a version of the statement of agreed facts and issues that stated, in italicised text, the basis on which each putatively agreed fact was said to be agreed:

6.    All parties agree that the Cleaning Modern Award applied to the employment of Cleaning Employees, which include, as a minimum, those persons identified as employees in Schedule A of National Contractor’s (sic) defence.

    

    NC defence — [64](b)

    Amended GPS & Enrico defence — see [64] — not admitted but concedes that the relevant award that applies to cleaners engaged by a cleaning contractor who is not a party to an enterprise agreement is the cleaning modern award.

7.     All parties agree that the Clerks Modern Award applied to the employment of the Administrative Employees, which include, as a minimum, those persons identified as employees in Schedule A of National Contractor’s (sic) defence.

    

NC Defence — [66](b)

    Amended GPS & Enrico defence — see [66] — not admitted but concedes that the relevant award that applies to clerical employees engaged by an employer who is not a party to an enterprise agreement is the Clerks Modern Award.

190    It is not necessary for present purposes to refer to National Contractors’ defence, because of my conclusion that GPS is the true employer and it did not employ any of the employees in question.

191    The relevant paragraphs of GPS and Enrico’s defence read as follows:

64.    The Respondents do not know and cannot admit paragraph 64 but concedes (sic) that the relevant award that applies to cleaners engaged by a cleaning contractor (who is not party to an enterprise agreement) is the Cleaning Modern Award;

...

66.    The Respondents do not know and cannot admit paragraph 66 but concedes (sic) that the relevant award that applies to clerical employees employed by an employer (who is not party to an enterprise agreement) is the Clerks Modern Award; ...

192    Those “admissions” are no more than assertions about the proper construction of the award. They say nothing about whether or not the 42 so-called Cleaning Employees or the six so-called Administrative Employees were covered by the awards as the Ombudsman alleged. As such, that is a question that must be resolved by consideration of the terms of the awards and the nature of the employees roles.

Were all 42 Cleaning Employees covered by the Cleaning Services Award?

193    Subclauses 4.1–4.2 of the Cleaning Services Award provide as follows:

4.1     This industry award covers employers throughout Australia in the contract cleaning services industry and their employees in the classifications listed in Schedule D—Classifications to the exclusion of any other modern award.

4.2     The contract cleaning services industry means the business of providing cleaning services under a contract and includes:

(a)    cleaning (including event cleaning, trolley collection and hygiene and pollution control but excluding trolley collection covered by the General Retail Industry Award 2010); and

(b)    minor property maintenance which is incidental or peripheral to cleaning.

194    Subclause 4.3 explains what is meant by “event cleaning”. Subclauses 4.4–4.6 provide for exceptions to the coverage of the award, none of which appears to be engaged here. Subclause 4.7 deals with on-hire arrangements and subcl 4.8 with trainees. Subclause 4.9 provides that the award “does not apply to an employer merely because that employer, as an incidental part of a business that is covered by another award has employees who perform functions referred to in clause 4.2 or in the classification descriptions referred to in Schedule D.

195    There can be no doubt that GPS was an employer in the contract cleaning services industry and that contract cleaning was more — indeed much more — than an incidental part of its business.

196    The only question is whether the duties of the putative Cleaning Employees fit into any of the classifications under the award.

197    The lowest classification under the award is that of Cleaning Services Employee Level One (CSE 1). The description for that classification is as follows:

D.1     A Cleaning Services Employee Level One (CSE 1) is an employee who at the completion of their training and induction is capable of performing work within the scope of this level. Such an employee to the level of their training:

    is responsible for the quality of their own work subject to routine supervision;

    works under routine supervision either individually or in a team;

    exercises discretion within the level of their skills and training; and

    performs those tasks customarily performed by cleaners utilising a range of materials and equipment, to clean a range of surfaces in order to restore or maintain buildings in a clean and hygienic condition.

D.1.1     Indicative of the tasks which an employee at this level may perform, on a daily or periodic basis, are the following:

    spot cleaning of carpets and soft furnishings;

    operating hand held powered equipment such as blowers, vacuum cleaners and polishers;

    sweeping and mopping;

    toilet cleaning (subject to the provision of the applicable allowance in accordance with clause 17.8);

    rubbish collection;

    cleaning of private residences, and the performance of domestic work including but not limited to cleaning and washing;

    telephone cleaning and germ proofing;

    cleaning of glass, both internal and external;

    dusting of all hard surfaces;

    table bussing:

    undertaking tea attendant duties;

    collecting, servicing and maintaining shopping and/or luggage trolleys;

    re-arranging and re-organising furniture;

    routinely maintaining indoor greenery (shrubs and plants);

    sanitary disposal processing; and

    wiping and sweeping under and around seats and table tops.

198    The following 32 employees gave evidence about their duties that would put them squarely within this classification: Alfonso Alcuitas, Paul Bacon, Wendy Bong, Mariana De Queiroz, Marco Diaz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Andrea Grigoletto, Marissa Hall, Freddy Herrera, Fiona Holland, Khaga Kandel, Bibek Luitel, Robin Malla, Charles Mascarenhas, Tammy May, Steve Mu, Giang Ngo, Helen Pakas, Jose Pena, Barbara Piper, Anna Plows, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey and Wen Yang.

199    Documents exhibited to Ms Millington’s affidavit show that Juliana Botero Hernandez and Alyson Hellyer also carried out work within this classification. In Ms Botero’s case the documents consist of an email from Ms Botero to GPS dated 5 August 2013, in which she states that she worked about 4.5 hours per day, Monday through Friday, cleaning “the common areas, restrooms machines and gyms” at the Goodlife gym in Fortitude Valley, and text messages from Ms Botero to a person named “Account Mr. Ross” revealed a similar story. In Ms Hellyer’s case the documents included a letter from Reggio, offering Ms Hellyer employment as a “permanent part time (Level 1) cleaner”, and other documents setting out the procedures for cleaning glass, floors and other surfaces.

200    There was no evidence shedding any light on the duties of the following six individuals: Jessica Alvarado Palma, Angela Bustos Alvarado, Michael Kallee, Tuula Rintala, Sumit Salhotra and Baljinder Singh. But all of them identified their occupation in their Workplace Complaint Forms as “Cleaner”. I infer that they fell within one of the classifications under the award.

201    There are two further classifications in the award: Cleaning Services Employee Levels Two (CSE 2) and Three (CSE 3). In short, a CSE 2 employee is one who works under supervision and performs the tasks customarily performed by cleaners, but also assists in the provision of on-the-job training. A CSE 3 employee is one who coordinates the work of CSE 1 and CSE 2 employees, generally superintends the activity of all building cleaners as a building supervisor or manager, and may handle the following tasks:

    ensuring that proper maintenance procedures for building plant and equipment are observed;

    arranging service calls to ensure that building plant is operating correctly;

    dealing with tenants and owners responsible with respect to the proper cleaning, servicing and functioning of the building;

    co-ordinating the work with leading hands of all building cleaners;

    handling routine personnel, industrial relations and health and safety matters; and

    being directly involved in the provision of on-the-job training

202    The evidence of both Linda Robinson and Mr Arguello indicates that they performed duties of this nature.

203    Ms Robinson worked at one site, the Star of the Sea apartments in Terrigal, NSW, where her responsibilities included: organising the cleaning staff in the morning and allocating the rooms they were to clean; supervising the staff and checking their work; adding up the staff’s timesheets and sending their hours to payroll for payment, keeping track of and ordering supplies, giving warnings to staff, and taking calls from staff regarding unpaid wages and following these up with payroll.

204    Mr Arguello worked across multiple sites. He liaised with clients to make sure GPS’s work had been performed properly and wrote improvement reports for Rosario when it had not; he supervised the cleaners themselves and showed them what to do if they needed help; he would also make sure the cleaners had the equipment they needed to do their job. He was also responsible for hiring and firing cleaners in accordance with Rosario’s instructions.

205    I find that Ms Robinson and Mr Arguello were both CSE 3 employees.

206    I am satisfied, therefore, that all 42 of the Cleaning Employees were covered by the Cleaning Services Award.

Were all six Administrative Employees covered by the Clerks Modern Award?

207    Clause 4.1 of the Clerks Modern Award provides:

4.1    This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees. However, the award does not cover:

(a)    an employer bound by a modern award that contains clerical classifications; or

(b)     an employee excluded from award coverage by the Act.

208    Neither paragraph (a) nor paragraph (b) applies here, as the Cleaning Services Award does not contain any clerical classifications and it was not suggested that any exception from award coverage applies.

209    Subclauses cl 4.2–4.6 provide for exceptions to the coverage of the award (none of which it is suggested presently applies) and on-hire and trainee arrangements. Subclause 4.7 provides that:

Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

210    The Clerks Modern Award will therefore apply to any employees who were engaged wholly or principally in clerical work, including administrative tasks of a clerical nature. “Clerical work” is defined in cl 3.1 of the award as follows:

clerical work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk

211    The classifications in the award include employee levels one through to five, and the classification of “Call centre associate”. The level of skill and responsibility between the classifications varies considerably. A Level 1 employee is responsible for routine clerical and office tasks such as filing, copying, staffing a switchboard or reception desk, and the maintenance of basic records. By Level 4, employees may be required to prepare financial or tax schedules, calculate costings, complete personnel/payroll data for authorisation, and reconcile accounts to balance. At Level 5, employees “will typically have worked or studied in a relevant field” and their duties may include providing reports for management in relation to accounts, finance, staffing and other matters. All of the classifications also include “call centre” duties.

212    Each of the putative Administrative Employees (Aisling Dunn, Moona Hasan, Christine Meager, Jainil Modi, Lara Satchell and Md Shamsuzzoha) gave evidence about their duties that conforms to the definition of clerical work in the award, as expanded upon by the descriptions of these classifications.

213    Aisling Dunn worked at GPS’s head office in St Peters, NSW. Her job description was “receptionist” but Rosario referred to her as his “PA” (presumably personal assistant). She sat at the office’s reception desk and greeted visitors. She also took minutes of meetings, printed and bound bundles of documents for new cleaners (called “job packets”), organised business cards for the head office staff, collated “cleaning logs” kept by the district managers, and ordered cleaning supplies.

214    Moona Hasan said she was hired to prepare tenders and proposals, but once she started work she was given additional administrative duties. Those duties included calling clients for feedback, maintaining client lists, preparing folders for tenders and making checklists for cleaning tasks.

215    Christine Meager was a telemarketer of sorts. She was given a list of companies, schools and preschools to call. Her calls followed a set script and were designed to elicit appointments for GPS’s sales representatives. Where the business requested further information, it was Ms Meager’s job to email them that information.

216    Jainil Modi did not provide an affidavit but his signed contract of employment is exhibited to Ms Millington’s affidavit. His job title was “assistant accountant” and he reported to Mr Kanbar, the Head Accountant (cl 5). His duties included processing invoices and payroll, reconciling supplier accounts, daily bank entries and bank reconciliation, and month end reporting.

217    Lara Satchell was hired as a “Human Resources Officer”, though she did not have any formal qualifications in the area. Her main role was recruitment, which involved calling applicants who answered GPS’s advertisements on the Gumtree website and asking them a series of initial screening questions. She also scheduled the applicants’ interviews and trial shifts. She said she often dealt with phone calls from disgruntled cleaners who had been unsuccessful in seeing that their wages were paid after calling Mr Modi and Mr Kanbar.

218    Md Shamsuzzoha was hired for a “2 week job” on a data entry project. The project was updating the company’s bank statements by uploading the information in the statements to the MYOB computer program. Mr Shamsuzzoha said that from time to time he assisted Mr Modi with staff payments, though again his role in that task was only entering data into MYOB.

219    On the basis of this evidence I am satisfied that each of the six Administrative Employees was covered by the Clerks Modern Award.

The alleged contraventions

The evidence

220    Before turning to the individual contraventions, it is necessary to make some general remarks about the presentation and content of the evidence upon which the Ombudsman relied to support them.

221    The Ombudsman filed and tendered three lever arch files of affidavits and exhibits including over 30 folders and a CD-ROM. Contained within the folders were vast reams of documents. The Ombudsman appears to have decided that every document she had generated or acquired in relation to this matter needed to be tendered. Many of them were never referred to in submissions; some which were referred to were ultimately not relied on. A notable example is the almost 200 pages of transcripts of interviews with several of the alleged employees, which, at the hearing, the Court was invited to disregard. In addition, the 3,768 pages in the eight three-inch lever arch folders of exhibits to Ms Millington’s affidavit appear to have been organised, for the most part, with little or no regard to the convenience of the Court. The result was that documents relating to a particular employee appear in different places in the eight folders, behind different tabs. In the case of the employees who provided affidavits, some documents were annexed or exhibited to their affidavits, while others were buried in the eight volumes of Ms Millington’s exhibits.

222    This, together with the scant attention given in submissions to the elements of each of the underpayment contraventions and the evidence necessary to prove them, including the failure to accurately pinpoint where the evidence was to be found, has meant that the task of writing this judgment at times felt Sisyphean. It has also meant that judgment, not only in this matter, but also in other important matters in my docket, has been unnecessarily delayed. I appreciate that the Ombudsman’s resources are limited but resourcing difficulties neither explain nor excuse this conduct. The Ombudsman, like any other party to a civil proceeding in this Court, is under an obligation to conduct the proceeding in a way that is consistent with the just, expeditious, inexpensive, and efficient disposition of disputes: Federal Court of Australia Act 1976 (Cth), s 37N(1). I regret to say that in several respects the Ombudsman’s conduct in this matter was not consistent with that statutory obligation.

223    None of the following people gave any evidence in this proceeding: Jessica Alvarado Palma, Angela Bustos Alvarado, Juliana Botero Hernandez, Alyson Hellyer, Michael Kallee, Jainil Modi, Tuula Rintala, Paul Saint James, Sumit Salhotra and Baljinder Singh. Each was interviewed by Ms Millington and transcripts of the interviews with them were exhibited to her affidavit. As I indicated above, however, at the hearing counsel for the Ombudsman stated that he did not rely on the transcripts for the truth of their contents. Despite this, in later written submissions prepared with no apparent input from counsel, the Ombudsman pressed the claims in respect of those individuals, relying heavily on those very transcripts. The inconsistency in the Ombudsman’s position was drawn to her attention. Her response arrived a month later. It consisted of a document entitled “Amended Further Information and Submissions regarding Underpayment Contraventions” in tabular form, under cover of an email. The email read:

We accept that the Applicant cannot rely on the transcripts of interviews as evidence for underpayment contraventions in relation to the employees who did not give evidence.

We attach our amended response dated 29 April 2016 in both clean and marked-up versions (in both Word and PDF, as well as the original response dated 15 March 2016 for your convenience), with references to all transcripts of interviews and complaint forms removed.

This is the best objective and documentary evidence the Applicant can provide as pinpointing specific evidence of contraventions in respect of those former employees who did not provide affidavit evidence. The Applicant wishes to advise that, if the Court does not accept part or all of this evidence, then the Applicant does not press the contraventions where relevant only in relation to those employees who did not provide affidavit evidence.

(Emphasis added.)

224    To say the least, the offer not to press the contraventions in the event that the evidence relied upon to support them was not accepted was unhelpful. If the evidence is not accepted, then the contraventions are not made out. What is the point at that stage of not pressing them? As a regulator seeking civil penalties, the Ombudsman ought to have considered whether the evidence was sufficient to prove each of the contraventions to the requisite standard before deciding to include them in the action or, at the latest, before inviting the Court to make findings with respect to them. Furthermore, a response of this kind is inconsistent with the Ombudsman’s obligations under s 37N of the Federal Court Act.

225    Apart from the transcripts of interviews exhibited to Ms Millington’s affidavit, a good deal of the Ombudsman’s evidence would have been rejected had objection been taken to it. For example, the employees’ affidavits were replete with hearsay and opinion. Often, where opinion evidence was given, the factual basis for those opinions was not disclosed.

226    But is not for the judge to raise for herself and then determine questions of admissibility: Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424 at [13] (Lindgren J). When the Evidence Act 1995 (Cth) speaks of evidence not being admissible, “not admissible” means “not admissible over objection”: Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149 at [26] (Ryan, Jessup and Perram JJ), following Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 at [149] (Spigelman CJ). Certainly in civil proceedings, inadmissible evidence admitted without objection can be used “as proof to the extent of whatever rational persuasive power it may have”: Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219 (Samuels JA), quoting CT McCormick, Law of Evidence (1st ed, 1954, West Publishing Co) at [54]. See, too, Harrington-Smith at [13].

227    Consequently, in the absence of objection, I have generally accepted the Ombudsman’s evidence and, where relevant, I have taken it into account. Furthermore, unless other material to which the Ombudsman took me contradicted it, I have relied upon it. That said, these are civil penalty proceedings. I am mindful of the terms of s 140(2) of the Evidence Act and of the observations made by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2. The Ombudsman must prove her case on the balance of probabilities to the reasonable satisfaction of the Court but that standard will not be met by “inexact proofs, indefinite testimony, or indirect inferences”.

228    The evidence included records generated by the “Praxeo” system, to which I have already referred. Praxeo is a modern bundy system, that is to say, an electronic system used by GPS to record the times employees started and finished their shifts. Summaries of the Praxeo records were also tendered. This evidence was exhibited to Ms Millington’s affidavit. In short, each summary set out in tabular form the hours of work of a particular employee which were recorded by Praxeo. In the absence of any evidence or submission to the contrary, I accept the accuracy of the summaries — with one qualification. The qualification is that the evidence of a number of employees, referred to below, is that the Praxeo system would often fail to record their log on or log off times. Consequently, the Praxeo records are an incomplete record of the hours worked. What they show is that the employees worked at least the hours recorded.

229    The evidence also included pay slips, annexed or exhibited to the affidavits of employees or, in some cases, to Ms Millington’s affidavit. As will be seen, often pay slips were never issued or issued only sporadically. When they were, they often contained no reference to superannuation contributions or to the payment of certain other entitlements, such as penalty rates or loadings. In some cases, evidence was given under oath or affirmation by the employees that the payments were not made. As I explain below, in the event of inconsistencies between the evidence of the employees and the pay slips, I prefer the evidence of the employees. Where the employee gives no evidence about whether or not certain entitlements were paid and the pay slips contain no record of a particular payment to which I consider the employee was entitled, I infer from the absence in the pay slips that no such payment was made.

230    At the hearing, shortly after I impressed upon the Ombudsman the necessity of pointing to the material proving each element of each contravention, counsel for the Ombudsman said this:

I say adverse inferences ought be drawn in this regard … because whichever of the respondents, whether it was GPS or National Contractors, had an obligation, pursuant to the statute, to keep proper records. Now, if those proper records had been kept, this would [not] be as an arcane an exercise as it’s going to be.

231    Without doubt, GPS failed to keep proper records and to provide pay slips in accordance with its obligations under the Act. But the submission must be rejected. While it may seem unfair that GPS should profit from its misconduct, gaps in the evidence cannot be filled in this way. Adverse inferences could only be drawn if proper records had been kept. The requirement to prove each element of each contravention cannot be waived or modified simply because the employer has failed to keep proper records. If it were, the liability of an employer who failed to keep proper records would effectively be indefinite or confined only by the willingness of the Ombudsman to limit the number of allegations.

232    The third species of evidence to which I wish to refer at this point is what I will call the Hurrell calculations. These are Microsoft Excel spreadsheets exhibited to Ms Hurrell’s affidavit. The spreadsheets contain what purport to be calculations of the exact amounts of the various underpayments for each of the relevant employees. Ms Hurrell said that they were prepared by the Ombudsman’s “Centralised Calculations Team”.

233    In her affidavit Ms Hurrell set out the process that she said was undertaken for each employee.

234    First, the (unnamed) Fair Work inspector (referred to in the evidence as FWI) assigned to perform the underpayment calculations for each employee reviewed “all documents relevant to that employee provided to the FWO during the Investigation”, including timesheets, pay slips, contracts of employment, complaint forms, transcripts and file notes of conversations with the employees and other documents.

235    Second, the relevant inspector determined the relevant employee’s award coverage and base rate of pay.

236    Third, “[t]emplate calculators were devised for each [S]tate … in the form of Excel spreadsheets pre-populated with the applicable rates of pay and formulas to calculate the entitlements … under the relevant award and/or the FW Act”.

237    Fourth, “[h]aving regard to the [documents referred to in the first step], the FWI then entered … data into the Calculator (where applicable) for each occasion that the Employee performed work during the Audit Period”, including the start, finish and break times for any shift “or for employees where this detail was not known the total length of the shift or total number of hours worked in the week”, leave taken, the length of any travel time, and wages paid to the employee during the audit period.

238    In addition, shift times for the cleaning employees were taken from the Praxeo records. Where a shift was recorded by Praxeo as being only one minute long, based on the evidence that such errors occurred, this was assumed to be an error and the shift time was determined using other records. Where that was not possible, “where the employee had provided evidence about their usual shift pattern and that pattern accorded with the pattern of work reflected in the Praxeo records, that pattern was relied on and the shift end time adjusted accordingly”. Where that was not possible, the length of minimum engagement applicable under the award was used.

239    Wages were entered in the following manner:

The amount of wages paid to employees during the Audit period was inputted based on payslips provided by the employee or the Company. The FWI was instructed to identify the employee's hourly rate and allocated the total gross amount earned by the employee on the basis of that hourly rate, ensuring the total gross paid was attributed to the work performed in that period. Where pay records were not available, or were unclear, they were cross referenced with employee bank records to ensure all monies paid were considered.

240    Fifth, underpayments were calculated using the formulae in the spreadsheets.

241    Sixth, Ms Hurrell reviewed all of the evidence and made “corrections” to the spreadsheets, addressing:

(a)    additional evidence provided by employees, including:

(i)    additional payslips which enabled assessment of periods previously unable to be assessed;

(ii)     additional information regarding shift patterns which enabled me to more accurately correct shifts where Praxeo had not recorded an end time (using the principles discussed [above]);

(iii)     additional evidence including text messages and emails which recorded times worked, often where Praxeo had not functioned correctly, [and]

(b)     errors in the assessments, including:

(i)     a small number of data entry errors, particularly around the shift start and finish times entered in the assessments;

(ii)     a small number of errors where FWIs had not adjusted the finish time of shifts where Praxeo had recorded 1 minute as worked, and had instead identified a contravention of the minimum engagement provisions;

(iii)     a number of instances where FWIs had failed to select within the Calculator whether the employee worked alone on the site. This had resulted in FWIs incorrectly assessing a contravention of the minimum engagement provisions where there was insufficient evidence to substantiate this; and

(iv)     a number of instances where a broken shift allowance had been incorrectly applied.

242    The Ombudsman sought to rely on this material as evidence of the occurrence of the various underpayment contraventions and the extent of the underpayments which was the basis of the claims for compensation. But there are several problems in doing so.

243    First, although Ms Hurrell described in her affidavit the kinds of records that were relied upon, the actual records relied upon in each instance for each figure in each employee’s case were not identified. It was therefore impossible to know if a particular shift time or payment amount was derived from a pay slip, a Praxeo entry, or some other source. The evidentiary substratum on which these calculations were based was therefore obscure, with the result that in many cases it was impossible to determine if the evidence supported the particular allegation or claim.

244    Secondly, amongst the records upon which Ms Hurrell relied for her calculations were the transcripts of interviews with employees who did not give evidence. Yet, as I have already pointed out, the Ombudsman disavowed any reliance on those transcripts.

245    Thirdly, among the various “bases” for the Hurrell calculations were some highly questionable assumptions. One example of this was relying on the employees’ usual patterns of work to fill gaps in the Praxeo records. Another was deducing from the payment of a lump sum that some entitlements were paid but not others.

246    For those reasons the Hurrell calculations were generally of no utility in establishing whether any of the contraventions was made out. Nor do they assist in the reckoning of compensation.

Contraventions 132: The underpayment of wages and other entitlements

247    Contraventions 16 and 3132 relate to the alleged non-payment of statutory entitlements. The vast majority, however, involve allegations of breaches of the applicable awards. At all relevant times s 45 of the FW Act provided that a person must not contravene a term of a modern award.

248    There are common elements to many of the contraventions. As a result, a certain degree of repetition is unavoidable.

249    I regret to say that, in contrast to the submissions on the overarching issues of principle (whether the individuals in question were employees or independent contractors and who was the true employer), the submissions in relation to these contraventions were often of little assistance. Rarely did they identify, let alone address, the elements of the contravention that had to be proved. The evidence which was said to support the allegations was mentioned only by reference to the surname of the deponent of the relevant affidavit or affidavits and a paragraph number or numbers. Sometimes the paragraph references were irrelevant. Sometimes they did not support the allegations. Sometimes they proved the opposite. It is evident that little, if any, judgment was exercised over the question of whether the evidence was sufficient to support the maintenance, if not the making, of several allegations.

1    Non-payment of annual leave

250    Section 90(1) of the FW Act provides as follows:

If, in accordance with this Division, an employee takes a period of paid annual leave the employer must pay the employee at the employees base rate of pay for the employees ordinary hours of work in the period.

251    Section 88 provides that paid annual leave may be taken for a period agreed between an employer and his or her employee but that the employer must not unreasonably refuse to agree to the employee’s request.

252    These provisions appear in Division 6 of the FW Act, entitled “Annual Leave”. The Division applies to all employees “other than casual employees”: s 86. The qualification is in the nature of an exception. In accordance with ordinary principles, the burden of proving that the exception applies rests with the employer: see Vines v Djordjevitch (1955) 91 CLR 512 at 519.

253    The Ombudsman alleges that four employees took periods of annual leave for which they were not paid. Those four employees were Barry Dowling, Tammy May, Helen Pakas and Robert Wilkey. I am satisfied that the allegation is made out in respect of two of the four employees: Ms May and Mr Wilkey.

254    The Ombudsman relied on paras 59 and 60 of Barry Dowling’s affidavit to support her contention that he was not paid his annual leave entitlements. That evidence only disclosed that he corresponded by email with Rosario asking him to “make sure” that he was paid his annual leave and that Rosario replied. The reply from Rosario is not easy to understand but exhibited to Mr Dowling’s affidavit as an attachment to Rosario’s email was an EFTPOS lodgment receipt indicating that Mr Dowling had been paid $376.95 in respect of annual leave. Without more, I cannot be satisfied that Mr Dowling was not in fact paid his entitlements as alleged.

255    Tammy May requested annual leave from 1–14 August 2011. She stated in her affidavit that the client services manager at GPS requested that she return from leave three days early, which she did. It is reasonable to infer from this evidence that annual leave in this period had been approved. Ms May said that she remembered being paid for the time she took but did not know if she was paid in full. But Ms May also exhibited to her affidavit the pay slips for this period. There is a substantial drop in the hours worked during the fortnightly pay periods (25 July to 7 August 2011 and 8 August to 21 August 2011) (generally in excess of 40 hours a fortnight down to 24.5 and 31.5 respectively), consistent with her having taken leave at this time, and no record of payments for leave. In these circumstances, I am satisfied that Ms May was entitled to be paid but was not paid annual leave and therefore that GPS contravened s 90(1) in her case.

256    Helen Pakas stated that she took annual leave on several occasions. Based on her applications for leave, which were exhibited to her affidavit, it appears that those periods were 69 April 2010, 28 December 2011 27 January 2012, 2228 March 2012, 1318 September 2012, and 24 December 2012 28 January 2013. Ms Pakas said that she did not know if she had been paid for any of these periods and that she had never received a document setting out her leave entitlements.

257    As I have already indicated, paid annual leave may only be taken if the employer consents. No evidence was led to show how GPS responded to Ms Pakas’s applications. The pay slips the Ombudsman tendered covered only the last two periods and they suggest that she received wages for those periods. In the circumstances, I am not satisfied that Ms Pakas took leave at any of these times or, that if she did, she did so in circumstances which would entitle her to payment for annual leave, that is to say, with the consent of the employer. Nor am I satisfied that she was not paid for any of those periods. She could not say and such evidence as there was indicates that she was.

258    Consequently, I find the contravention not proved in this case.

259    In his affidavit Robert Wilkey said that he applied for annual leave in about May 2012, was absent from work from 619 May 2012, and did not receive any pay for this period. There is no direct evidence that his applications were agreed to but his affidavit also includes the contents of certain text messages passing between him and the then South Australian State Manager of GPS, Yvette Cooley, beginning with an exchange in which he informed her that he was owed 14 days holiday pay. In none of these exchanges did Ms Cooley suggest that annual leave for that period had not been agreed to. In one message, sent on 3 July 2012 (a Tuesday), Ms Cooley stated that she had spoken to “Ross”, who I take to be Rosario, and “your holiday pay is being transferred on Friday …”. After Mr Wilkey did not receive it on the Friday, he sent Ms Cooley another text, only to be told that she had spoken to Ross and he was “dealing with payroll”. This evidence indicates that the annual leave had been agreed to but not yet paid. Mr Wilkey tried to call payroll several times thereafter without success until, on 12 July 2012 (a Thursday), he managed, with Ms Cooley’s assistance, to speak to Mr Modil. He complained to Mr Modil that he had received no pay at all for a few months. Mr Modil told him he could give him “$200 now and the rest on Monday”. Over the next few days he did receive $200 but no more. His evidence was to the effect that this sum did not include or comprise his holiday pay.

260    I accept his evidence. I am satisfied that GPS contravened s 90(1) by failing to pay him at his base rate of pay for his ordinary hours of work during the period the leave was taken.

2    Failing to pay annual leave on termination

261    For each year of service with his or her employer, s 87(1) of the FW Act provides that any employee who is not a casual is entitled to four weeks of paid annual leave or five, relevantly, if the employee is described in a modern award as a shiftworker for the purposes of the National Employment Standards.

262    “Shiftworker” is defined in the Cleaning Services Award as follows:

29.2    Definition of shiftworker

(a)     For the purposes of the NES, a shiftworker is an employee:

(i)     who works a roster and who, over the roster cycle, may be rostered to work ordinary shifts on any of the seven days of the week; and

(ii)     who is regularly rostered to work on Sundays and public holidays.

(b)     Where an employee with 12 months’ continuous service is engaged for any part of the 12 month period as a shiftworker, that employee must have their annual leave increased by one half day for each month the employee is continuously engaged as a seven day shiftworker, provided that a limit of 10 months in any year will be counted towards the additional leave accrual.

263    The annual leave entitlement accrues progressively during a year of service according to the employees ordinary hours of work, and accumulates from year to year: s 87(2)). As the note to s 87(2) makes clear, if an employees employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up until then.

264    Section 90(2) of the FW Act states that:

If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

265    The elements of this contravention, then, are that:

(1)    the employee has an entitlement to annual leave;

(2)    the employment of the employee has ended;

(3)    at that time the employee has a period of untaken annual leave; and

(4)    the employer (GPS) has failed to pay the amount that would have been payable to the employee had he or she taken that period of leave.

266    In the absence of any evidence from GPS, unless the Ombudsman’s own evidence proves that an employee is a casual, the employees in question are either full-time or part-time employees (see [390] and are entitled to annual leave.

267    The Ombudsman submitted that the evidence shows that the employment of 48 employees came to an end at a time when they had accrued annual leave but were not paid the requisite amounts. Those employees (in alphabetical order) were: Alfonso Alcuitas, Jessica Alvarado Palma, Abraham Arguello, Paul Bacon, Wendy Bong, Juliana Botero Hernandez, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Rangana Dissanayake, Barry Dowling, Aisling Dunn, Fawaz El Rahman, Andrea Grigoletto, Marissa Hall, Moona Hasan, Alyson Hellyer, Freddy Herrera, Fiona Holland, Michael Kallee, Khaga Kandel, Bibek Luitel, Robin Malla, Charles Mascarenhas, Tammy May, Christine Meager, Jainil Modi, Kian Mu, Giang Ngo, Jose Pena, Barbara Piper, Anna Plows, Tuula Rintala, Linda Robinson, Paul Saint James, Sumit Salhotra, Lara Satchell, Md Shamsuzzoha, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey, and Wen Yang.

268    The Ombudsman has proved the contravention in relation to 32 employees, being: Alfonso Alcuitas, Abraham Arguello, Paul Bacon, Juliana Botero Hernandez, Mariana De Queiroz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Fiona Holland, Michael Kallee, Bibek Luitel, Charles Mascarenhas, Tammy May, Christine Meager, Kian Mu, Jose Pena, Barbara Piper, Tuula Rintala, Linda Robinson, Sumit Salhotra, Baljinder Singh, Dianne Sjoberg, CherySorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey and Wen Yang.

269    However, she has not proved the contravention in relation to the following 16 employees: Jessica Alvarado Palma, Wendy Bong, Angela Bustos Alvarado, Marco Diaz, Aisling Dunn, Andrea Grigoletto, Moona Hasan, Alyson Hellyer, Khaga Kandel, Robin Malla, Jainil Modi, Giang Ngo, Anna Plows, Paul Saint James, Lara Satchell and Md Shamsuzzoha.

270    Alfonso Alcuitas deposed that he received a written offer of employment from RPEP Holdings on or around 28 June 2011. He did not say precisely when he started work. The first of the pay slips annexed to his affidavit is for the period 15–29 June 2011, but his Praxeo records begin at 28 June 2011. In any event, he said that his last day of work was 17 September 2012 so his employment spanned at least from the end of June 2011 until that date. He said that he never took any annual leave. He also said that he never received any money for the last four weeks of his work or any money in respect of untaken annual leave or annual leave loading on termination of his employment. I infer from this evidence that he was not paid at all after the end of his employment, including any money in respect of untaken annual leave. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.

271    Abraham Arguello worked for GPS from October 2010 until 14 September 2013. He said that he “knew” he had annual leave owing to him when his employment was terminated and that he did not receive any payments at all from GPS when his employment was terminated. In the absence of any challenge to this evidence or evidence to the contrary, I accept what he said. The contravention is proved in his case.

272    Paul Bacon’s began working for GPS in late January 2009. Mr Bacon did not say that he had not taken annual leave. What he said was that on 23 November 2012 he told Ms Voytenko that he would like to take annual leave as he had never taken any before. The most likely reason he said that to Ms Voytenko is that it was true.

273    By November 2012 Mr Bacon had worked for three years and nine months. He had therefore accrued at least 15 weeks of untaken annual leave. On 7 December 2012 he said that he began a period of annual leave but he also said that he ended up acceding to a request by Enrico to work that day. His evidence from this point on is unclear. He said that he decided not to return to work at GPS on 18 January 2013, but it is not obvious from his evidence whether he worked between 8 December 2012 and 18 January 2013 or whether he was on annual leave during that time. In either case, excluding weekends and public holidays (Christmas Day, Boxing Day and New Year’s Day), there were only 26 work days between those dates, so even if he took annual leave for the full period from 8 December until 18 January he still had at least seven days of accrued annual leave at the time his employment ended. The effect of the evidence at paras 68–84 of his affidavit, however, supported by the bank statement exhibited to it, is that he was not paid at all by GPS after 6 December 2012. He was not, therefore, paid anything at all at the end of his employment. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.

274    Wendy Bong started working for GPS on or around” 1 February 2013. He was engaged to work Monday to Saturday. He said he worked for nine days in total, the last of which was 13 February. There were two Sundays in the period, leaving two days unaccounted for. The only evidence he gave in relation to annual leave was that he did not receive any payment “by way of untaken annual leave” or payment of accrued annual leave. Indeed, he said that he did not receive any payment at all either during or after his employment, nor did he receive any pay slips.

275    The difficulty for the Ombudsman is that Mr Bong did not give evidence to indicate that he was entitled to annual leave on termination. The only reason he would have such an entitlement is if he had any accrued but untaken annual leave at the time of termination. In the absence of evidence of how much, if any, annual leave he took, there is no basis for concluding that he had an entitlement to payment of accrued but untaken annual leave on termination.

276    Accordingly, I am not satisfied that GPS contravened s 90(2) of the Act in his case.

277    Mariana De Queiroz started work with GPS on 7 February 2012 and resigned on 6 October 2012. She said that she took a week of annual leave. Yet between 7 February 2012 and 6 October 2012 she would have accrued more than two and a half weeks of annual leave. I am therefore satisfied that she had a period of accrued, untaken annual leave at the end of her employment. The effect of her evidence at paras 44–55 of her affidavit is that she did not receive any payment from GPS after at least 21 September 2012. Accordingly, I find that GPS also contravened s 90(2) of the Act in her case.

278    Marco Diaz worked for GPS from 11 December 2012 until 5 April 2013. His affidavit is silent on the question of annual leave. The Ombudsman relied only on a statement in his affidavit (at [103]) that he had not received any payments from either National Contractors or GPS since a payment made on 10 April 2013. Earlier in his affidavit (at [92]) he had said that the 10 April payment was for the sum of $675. I was not referred to any pay slip or other document that might have disclosed how that sum was made up. For all I know, it could have included a payment in respect of annual leave. Accordingly, I am not satisfied that the Ombudsman has proved that GPS contravened s 90(2) in his case.

279    Rangana Dissanayake worked for GPS from about 17 May 2011 until 28 October 2011. He worked seven nights per week, including public holidays, so he was a shiftworker within the meaning of that term in the award, entitled to five weeks annual leave per year. The Ombudsman relied on a bare statement by Mr Dissanayake that he did not receive any payment for accrued annual leave on termination, but again the basis for the statement is not apparent. Mr Dissanayake gave no evidence about whether he took any annual leave or, if so, how much. His Praxeo records show him working every day for the period they cover, but they only begin on 1 July 2011two weeks after he started work. In the more than five months that he worked, however, he was entitled to more than two weeks of annual leave. It is highly unlikely, if not inconceivable, that Mr Dissanayake would have taken annual leave in the first two weeks of his employment. Even if he had, however, he would still have accrued more annual leave than he took before his employment ended. He said that he did not receive any payment at all on termination. Consequently, I find that GPS contravened s 90(2) in respect of Mr Dissanayake.

280    Barry Dowling worked for GPS from the beginning of March 2010 until 10 April 2013. He regularly worked seven days each week, including on public holidays. Thus, he, too, was a shiftworker, entitled to five weeks annual leave per year. The “beginning of March” is vague, but even working conservatively with a start date of 14 March, he would have accrued a total of just over 15 weeks annual leave during the term of his employment.

281    Mr Dowling said that he took the following periods of annual leave:

    26 December 2010 – 1 January 2011 (one week);

    22 April – 5 May 2011 (13 days);

    26 December 2011 – 8 January 2012 (two weeks); and

    512 September 2012 (one week).

282    This is a total of almost six weeks.

283    It follows that at the time his employment ended Mr Dowling had at least nine weeks of accrued untaken annual leave. He deposed that he did not receive “any payment in lieu of notice or a payment of accrued annual leave” and that, although he called GPS after termination in an attempt to recover his accrued entitlements, his calls went unanswered. The inference is that he was not paid in respect of his accrued annual leave. In the absence of evidence from GPS to the contrary, I am satisfied that he had accrued untaken annual leave when his employment ended and that the Ombudsman has discharged her onus of proof in his case.

284    Aisling Dunn started at GPS on 4 March 2013 and worked for the company until 19 April 2013. She said that after 19 April 2013 she did not receive any outstanding salary, sick leave for the days she was unwell, or accrued annual leave. The effect of her evidence from paras 106–113 is that she was not paid at all after 26 March 2013. The remaining question is whether she had any accrued, untaken annual leave at that time. In her affidavit Ms Dunn made no mention of taking or not taking annual leave. There are no Praxeo records for her. The Ombudsman relied on Ms Hurrell’s calculations but again the basis for the calculations is obscure. It follows that the evidence is insufficient to discharge the Ombudsman’s onus of proof in her case.

285    Fawaz El Rahman worked for GPS from about 1 August 2011 until 19 December 2011. The only reference to annual leave in his affidavit is that he “never received payment for annual leave that [he] accrued, but did not take, on termination of employment”. His Praxeo records, however, reveal that he worked every day between and including 1 August 2011 and 19 December 2011, except for the first weekend in that period (6 and 7 August), 21 August, and Wednesday 7 – Friday 9 December. The exception of the initial weekend is explained by Mr El Rahman’s evidence that he began the job working only Monday to Friday. There is no direct explanation for the gap in work on 21 August and between 7 and 9 December. But if those four days were annual leave, he would still have had accrued untaken annual leave at the end of his employment because, in the four months and 19 days of his employment, he would have accrued well over a week of annual leave, even at an accrual rate of four weeks per annum. He said that he had not been paid for his work by GPS since 29 November 2011, so he could not have been paid in respect of whatever amount of leave he had accrued at the end of his employment. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.

286    Andrea Grigoletto deposed that he worked for GPS from around January 2013 until around 5 April 2013. He said that he usually worked Mondays through Fridays but occasionally also weekends. The only reference to annual leave in his affidavit is that he was “never paid anything like annual leave”. The statement is ambiguous. It could refer to payments for annual leave taken or to untaken accrued annual leave on termination, which is the relevant question here. There are no Praxeo records for Mr Grigoletto. The only other evidence upon which the Ombudsman relied is the Hurrell calculations, which are based on an assumption that no annual leave was taken but do not set out the basis for that assumption. Accordingly, a contravention in his case has not been proved.

287    Marissa Hall deposed that she worked for GPS from 18 March 2013 until 12 April 2013. She said that she did not take any leave and that she was not paid by GPS at all. Accordingly, I find that in her case GPS contravened s 90(2) of the Act.

288    Moona Hasan said that she commenced work on either 5 or 6 February 2013. Her last day of work was 26 March 2013. The only evidence she gave concerning annual leave is that she did not receive payment of accrued annual leave or annual leave loading on termination. But in the absence of evidence of the leave she took or did not take, there is no evidence that she had any period of untaken annual leave at the end of her employment. Ms Hurrell’s calculations suffer from the usual flaw and there are no Praxeo records for this employee. Consequently, I am not satisfied that GPS has contravened s 90(2) in Ms Hasan’s case.

289    Freddy Herrera deposed that he was asked to meet Rosalie Thomas of GPS at a bowling club at 9.00pm on 8 September 2010 to start work. He said that he did as he was asked and agreed to start work that night. He did not expressly say that he then started work, but I infer that he did. He said that his employment came to an end on 8 March 2013 and that he did not take any annual leave during his employment with GPS. He therefore had a considerable amount of untaken annual leave accrued at the time his employment came to an end. He said that he did not receive any payment from GPS at all after 4 January 2013. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.

290    Fiona Holland started work with GPS on 9 May 2012. Her employment ended on 19 July 2012, following her resignation by email on 29 June. She said that she did not take any annual leave, so all that she had accrued remained untaken on 19 July. The last payment she received was five days before the end of her employment, on 14 July. Accordingly, I find that GPS contravened s 90(2) of the Act in her case.

291    Khaga Kandel worked for GPS from 15 March 2013 until 19 April 2013. His affidavit contains the usual bare assertion regarding non-payment of his untaken leave on termination, but again that says nothing about whether he had any accrued leave at that time. There are no Praxeo records for him. Again, the Ombudsman relied on the calculations annexed to Ms Hurrell’s affidavit but the assumptions upon which they are based are not apparent, let alone proved. There is no way of knowing how much, if any, annual leave Mr Kandel had accrued but not taken at the end of his employment. Consequently, I am not satisfied that a contravention of s 90(2) occurred in his case.

292    Bibek Luitel worked for GPS from 9 May 2012 to 24 May 2012 inclusive. He said that he did not take any annual leave, so the small amount of leave that he accrued in that period remained untaken at the time his employment ended. Annexed to his affidavit is a bank statement, which records a payment from “REGGIO INVESTMEN” of $507.57 on 18 May 2012. He said that this was the only payment he received. Consequently, I conclude that he had untaken accrued annual leave at the time his employment ended for which he was not paid and that GPS therefore contravened s 90(2) of the Act in his case, too.

293    Robin Malla deposed that he worked for GPS from 10 April 2012 until 27 February 2013 and that he did not “receive any amount for accrued annual leave … upon termination”. But he said nothing about whether or not he took annual leave. It is therefore impossible to know if he had any untaken annual leave at that time. The only other evidence the Ombudsman pointed to is the Hurrell calculations, which again appear to assume that no annual leave was taken without explaining the basis for that assumption. The Ombudsman did not refer the Court to any other evidence. Consequently, I am not satisfied that GPS has contravened s 90(2) in Mr Malla’s case.

294    Charles Mascarenhas attended an interview with Ms Voytenko on 14 March 2013, during which he agreed to start work that day. He said that he generally worked five days a week until he resigned on 6 May 2013. He did not mention taking any leave but he did say that he was never told “whether [he] would get annual leave entitlements”. It is unlikely that he took annual leave without knowing whether he would be paid, so I infer that he did not take any annual leave during his employment. He said that he had not been paid by GPS “for any unused annual leave entitlements”. I accept his evidence. I find that GPS contravened s 90(2) in his case.

295    Tammy May started work for GPS at or around the end of August 2010 and continued working until 22 January 2013. She said that throughout her employment she worked seven days a week, including, on occasions, public holidays. She was therefore a shiftworker under the award and was entitled to five weeks annual leave per year. In a discrete part of her affidavit dealing with “leave” she stated that she attempted to take annual leave from 1 August–14 August 2011 but acceded to a request to return to work for the last three days of the period. She did not mention taking any other period of annual leave. I infer that the period she mentions is the only period she took. It follows that I also infer that she had accrued a considerable amount of untaken leave when her employment ended. She said that she did not receive any money at all from GPS after 17 January 2013, five days before her employment was terminated. Accordingly, I find that GPS contravened s 90(2) of the Act in her case.

296    Christine Meager worked from 27 November until 20 December 2012. She said that she never took any annual leave during her employment and she was never paid for any untaken annual leave. Indeed, she said she sent a final “invoice” to Enrico and Rosario requesting payment for work she performed in her last three days of employment, but she received no payment and no response from anyone at GPS. I infer that she received no payment at all after the end of her employment, including for the accrued amount of untaken annual leave. Accordingly, I find that GPS contravened s 90(2) of the Act in her case.

297    Kian (also known as Steve) Mu worked for GPS between 9 September 2010 and 13 January 2012. He worked seven days a week, including public holidays. He was therefore a shiftworker and accrued annual leave at a rate of five weeks per year. He said that he did not take any annual leave during his employment with GPS, so all of it was untaken at the time his employment ended.

298    Mr Mu said that he was paid $1,199.23 on 1 February 2012. As he noted in his affidavit, this corresponds precisely to the amount on a pay slip addressed to him, notionally for the period 26 December 2011 1 August 2012, that was produced by Reggio to the Ombudsman and was exhibited to Ms Millington’s affidavit. I therefore infer that the payment of 1 February 2012 relates to the period mentioned in the pay slip. As the pay slip makes no mention of any payment in respect of untaken annual leave, I infer that no part of the $1,199.23 is attributable to accrued annual leave entitlements.

299    Mr Mu said that the only other payment he received after the end of his employment was a single payment of $500, which was deposited into his bank account on 2 April 2012. Another pay slip produced by Reggio and exhibited to Ms Millington’s affidavit, notionally for the period 9 January 2011 1 August 2012, records $500 being paid in respect of “Annual Leave”, though, as Mr Mu noted in his affidavit, the description on the bank deposit of $500 was “back pay”. Even if the $500 were paid in respect of annual leave, it would be manifestly inadequate to cover the more than six weeks of annual leave which Mr Mu had accrued by the end of his employment. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.

300    Jose Pena worked for GPS from 15 October 2012 until 9 March 2013. He said that he did not take any annual leave in that time and that the last payment he received from National Contractors or GPS was on 22 February 2013 — well before his employment ended. Consequently, I find that he had accrued untaken annual leave entitlements for which he was not paid on termination and GPS contravened s 90(2) of the Act in his case.

301    Barbara Piper began work with GPS on 10 July 2012. Her last day of work was 8 August 2012. She said that in that time she did not take any annual leave. She said that she was not paid at all after 3 August 2012. I am therefore satisfied that she had untaken annual leave entitlements accrued at the time her employment ended, in respect of which she was not paid. Accordingly, I find that GPS contravened s 90(2) of the Act in respect of Ms Piper.

302    Anna Plows worked for GPS from around 3 May 2012 until 31 January 2013. She said that she worked seven days a week (including public holidays). She was therefore a shiftworker within the meaning of cl 29.2 of the award. During the 39 weeks of her employment, she would have accrued 3.75 weeks annual leave (being 39/52 x 5 weeks). The effect of her evidence is that she did not receive the wages due on 11 January 2013, nor any pay after that date. It is plain then that, if she had any untaken accrued annual leave at the end of her employment, she was not paid the amounts to which she was entitled. But what is the evidence that she had any untaken annual leave on termination?

303    As with most of the employees who gave evidence, the Ombudsman relied on an assertion in Ms Plows’ affidavit that she “did not receive any … payment of accrued annual leave”. But that assumes that Ms Plows was entitled to payment of accrued annual leave. That in turn depended on whether she had a period of untaken annual leave. Her affidavit said nothing about whether she took or did not take annual leave.

304    The Praxeo records do not assist. Although Ms Plows said that she usually worked seven days a week, there is no Praxeo entry for 31 May 2012; 19–23 June 2012; every Thursday in July and August 2012; 17, 21, 22 and 24 August 2012; 2, 6, 14–16, 20, 27 and 28 September 2012; 7, 14 and every Thursday in October 2012; 1–4, 14–16, 22–25 and 28–30 November 2012; 6, 7 and 13–30 December 2012; and 2–11, 15–19, 22–25 and 29–31 January 2013. A total of more than 70 days are therefore unaccounted for in the Praxeo records. That is not to say that Ms Plows did not work on those days; indeed she deposed (as did other employees) that the Praxeo system often malfunctioned. It is only to say that the Praxeo records cannot fill the gap in her evidence.

305    The Ombudsman also pointed to the Hurrell calculations. In these Ms Plows’ annual leave entitlement is apparently calculated on the assumption that she did not take any annual leave during her employment, but, once again, the foundation for the assumption is obscure. The calculations can therefore be given no weight.

306    Accordingly, in the case of Ms Plows, I am not satisfied that the allegation is made out.

307    Linda Robinson said that she worked for “Reggio” from 1 December 2011 until 16 March 2012. She said that during that time she took no annual leave and did not receive any payment for her untaken annual leave. In the absence of any evidence to the contrary, I am satisfied that GPS contravened s 90(2) of the Act in her case, too.

308    Lara Satchell’s affidavit contained an assertion that she was not paid accrued annual leave on termination, but she gave no evidence that would enable the inference to be drawn that she had accrued untaken leave at that time. She did not say whether she had or had not taken annual leave. There are no Praxeo records for her and the calculations annexed to Ms Hurrell’s affidavit do not assist. The Court was not referred to any other evidence. Thus, in her case, I am not satisfied that GPS has contravened s 90(2).

309    In the case of Md Shamsuzzoha, the Ombudsman relied only on paras 49–65 of his affidavit and the Hurrell calculations. The paragraphs in question do not mention annual leave. Indeed, there is no reference to annual leave anywhere in his affidavit. Mr Shamsuzzoha did produce a pay slip which did not refer to a payment for annual leave (only wages) but that was for a period before his employment came to an end. Without evidence of whether Mr Shamsuzzoha had any period of accrued annual leave when his employment concluded, I am unable to say whether or not GPS contravened s 90(2). The Ombudsman has not discharged her burden of proof.

310    Dianne Sjoberg worked for GPS from about 17 January 2011 until 5 February 2012, during which time she took no annual leave. She said that she did not receive payment of accrued annual leave on termination. In these circumstances, in the absence of any evidence to the contrary, I am satisfied that at the time her employment ended she had untaken annual leave for which she was not paid. Consequently, I am satisfied that GPS contravened s 90(2) of the Act in her case.

311    Cheryl Sorrell worked for GPS from about 31 January 2011 until about 3 February 2012. During that time she said she did not take any annual leave, so any leave she accrued remained untaken at the end of her employment. Ms Sorrell said that she was not paid any money by GPS at all after her employment ended. Accordingly, I find that at the time of termination she had untaken annual leave for which she was not paid and that GPS contravened s 90(2) of the Act in her case, as well.

312    Thomas Sung Hong worked for GPS from 4 January 2010 until about early November 2013. He said that he worked the same hours each week and that he did not take any annual leave until 10 October 2013, when he took four weeks’ leave. After two years and nine months of work, however, MHong accrued a total entitlement of well over ten weeks’ leave. He said he did not receive any payment at all following the end of his employment. Accordingly, I find that he had accrued untaken annual leave at that time and that GPS contravened s 90(2) of the Act in his case, too.

313    Tui Tane was employed by GPS from 18 November 2011 until 5 February 2012. She said that she did not take any annual leave during that time. She also said that she “did not receive any payment for [her] untaken annual leave”. In the absence of evidence to the contrary, I am satisfied that she had a period of untaken paid annual leave at the time her employment ended. Consequently, I find that GPS contravened s 117(2) in her case too.

314    Xiao Teng worked from 17 September until 16 November 2012. She was employed to work broken shifts totalling about eight hours a day. She said that she usually worked five days a week from Monday to Friday and occasionally Saturday or Sunday. She accrued just under three days’ annual leave, being an annual entitlement of four weeks’ leave pro-rated to her almost two month period of work. She said that she did not take any annual leave during her employment. She also said that she was not paid at all after 5 November 2012, signifying that she was not paid anything at the end of her employment. Accordingly, I find that she had accrued untaken annual leave at that time and that GPS contravened s 90(2) of the Act in her case.

315    Sekson Thinathin began work on around 13 January 2011. His last shift was on 2 December 2011. He said that he was “never paid sick pay or annual leave or anything like that”, but that could mean that he took annual leave for which he was not paid. He said: I was not paid for my accrued but untaken annual leave on the termination of my employment”. By saying “my accrued but untaken leave, he implies that he had accrued leave at the relevant time. His Praxeo records show him working every day between 17 January and 2 December 2011. That means he did not take any annual leave at least during that period. He therefore must have had an untaken amount accrued at the end of his employment. He said that he “was not paid for [his] work between 13 November 2011 and 2 December 2011 and [he] still [has] not been paid for that work”. I infer from this, if it does not necessarily follow from what he said, that he was not paid any money at all after 13 November 2011. Accordingly, I find that he had untaken annual leave at the end of his employment for which he was not paid and therefore that GPS contravened s 90(2) of the Act in his case.

316    Tashi Wangchuck deposed that she worked for GPS from 3–31 July 2012. She said that she did not take any annual leave during her employment. Such leave as she had accrued therefore remained untaken at the time her employment ended. She said that she was not paid after 16 July. Accordingly, I find that GPS contravened s 90(2) of the Act in her case.

317    Robert Wilkey began work on around 15 March 2011. After having been refused permission to take annual leave over Christmas 2011, he made a second application in May 2012. This time his request was granted and he was off work from 6–19 May 2012. His employment with GPS ended on 25 July 2012 and the effect of his evidence from paras 56–74 of his affidavit is that the 6–19 May period was the only leave he took. Having worked for GPS for more than 13 months, he had accrued more than 4.5 weeks of annual leave. Much of this was therefore owing at the time his employment ended. He said, and I find, that he did not receive any payment of accrued annual leave on termination. The contravention is proved in his case.

318    Wen Yang deposed that he worked for GPS for four weeks and was not paid at all. An email annexed to his affidavit, which he adopted in the body of his affidavit as a true statement of the days and hours he worked, shows that he worked every week day between 17 September and 13 October 2012 except Monday 1 October 2012, though he worked the Saturday of that week. He therefore cannot have taken more than one day of annual leave, so at least some of the approximately 1.6 days of leave he accrued during the short time he worked for GPS remained untaken at the time his employment ended. As he was not paid at all he cannot have been paid in respect of his untaken annual leave. Accordingly, I find that upon termination he had accrued untaken annual leave for which he was not paid and that GPS contravened s 90(2) of the Act in respect of Mr Yang.

319    Giang Ngo worked for GPS from 19 February 2013 until 8 March 2013 and received no payment at all. He said that he never “had any discussion with anyone at GPS about annual leave”. I infer from this statement and the relatively short period of his employment, that he did not take any. But I am not satisfied that he was entitled to annual leave. That is because I am not satisfied that he was a part-time worker. Mr Ngo deposed that his hours varied from day to day. To the extent that his affidavit includes his actual hours of work, it bears out this characterisation. Mr Ngo did not say that he was engaged to work on any other basis. I therefore find that he was a casual, not a part-time employee.

320    I now turn to the employees who did not give evidence.

321    In the case of Angela Bustos Alvarado, the Ombudsman referred to two emails Ms Bustos sent to GPS in the early hours of 10 January 2013. The first was sent to Mr Modi. It stated:

I’m surprised that i haven’t gotten my pay for the weeks that I worked on December I don’t know if u are not going to pay me or what happened??

322    The second was sent a few minutes later to Ms Voytenko, stating:

I would like to ask u what happened with my pay that I should receive on the 28th of december ??? I just email jay asking him about my pay as well …

323    The Ombudsman also referred to two notices to produce issued to GPS and National Contractors respectively, on 13 January 2014. The notice to GPS relevantly required the production of:

6.    Complete and legible copies of all records and documents that evidence all payments made to [Ms Bustos, among others] including but not limited to payslips, pay advice, statements, cheques, bank statements or otherwise described documents for the period 1 July 2011 to present.

7.    Complete and legible copies of records and documents evidencing leave records including annual leave and personal leave accrued, credited, taken, cashed out, or paid out after termination of employment for the entire employment period of [Ms Bustos, among others] for the period of 1 July 2011 to present.

324    The notice to National Contractors was similar but called for documents from 1 August 2012 to present.

325    On the basis that no documents in these categories were produced in relation to Ms Bustos, the Ombudsman asked that the inference be drawn “that [Ms Bustos] did not receive any payment for accrued annual leave on termination as she did not receive any payment from [GPS] following the termination of her employment”.

326    But the only inference I can draw from the failure of the two companies to produce pay slips is that there were no pay slips to produce. Without more, it does not prove that monies were not paid. The evidence in relation to other employees shows that pay slips were not regularly issued. Indeed, this is the subject of another of the alleged contraventions.

327    It follows that I am unable to find that GPS contravened s 90(2) in Ms Bustos’s case.

328    For Juliana Botero Hernandez the Ombudsman referred to a number of the documents appearing behind tab 232 of Ms Millington’s affidavit. In the body of the affidavit these are identified only as “documents and records from” Ms Botero. Among these documents is a Workplace Complaint Form in which Ms Botero stated that she was paid “$0.00” by GPS for the 54 hours she worked from 20 March 2013 until 8 April 2013. She also stated that she worked a total of four and a half hours a day in this period in two broken shifts. A document called “Contractor Sign In Register” attached to her complaint form shows her signing in on every week day in that period except for Good Friday (29 March) and Easter Monday (1 April). In these circumstances I am satisfied that Ms Botero did not take annual leave and that GPS therefore contravened s 90(2) by failing to pay her accrued untaken annual leave on termination.

329    Similarly, in his Workplace Complaint Form Baljinder Singh stated that he worked for GPS for four weeks from 1–28 August 2012 and that he received no payment. The Praxeo records show that he worked every day in that period except 6 August. As he worked seven days a week he was a shiftworker within the meaning of the award and accrued annual leave at a rate of five weeks a year. In four weeks of work he would have accrued 0.38 weeks, or, on a seven day per week basis, more than 2.5 days of leave. On the basis of the complaint and the Praxeo records, I am satisfied that he had accrued annual leave on termination for which he was not paid. Consequently, a contravention of s 90(2) is proved in his case.

330    In her Workplace Complaint Form, Jessica Alvarado Palma states that she worked from 20 November 2011 until 18 January 2013. To show that Ms Alvarado had accrued untaken annual leave entitlements at the time her employment ended, the Ombudsman relied on Ms Alvarado’s responses to a document entitled “Questions for Notional Employee/Contractor”, in which she appears to have ticked “No” in response to the question, “Do you receive leave entitlements?” The following question asks, “If ‘yes’ to the above, what leave entitlements?” and provides options including “Annual leave”, “Personal leave (e.g. sick leave)” and so forth. None of these is ticked on Ms Alvarado’s questionnaire. Assuming “do you receive leave entitlements” means “have you received any leave entitlements”, the negative response is ambiguous. It might mean that she had accrued leave for which she was not paid. Equally, however, it might mean that she had taken annual leave but had not been paid for it. In theory, at least, it might also mean that she was not paid the requisite leave loading. Without more, the evidence is insufficient to discharge the Ombudsman’s onus of proof.

331    The Ombudsman also referred to a number of emails from Ms Alvarado to Ms Voytenko, in which Ms Alvarado complained about not being paid.

332    In one email, dated 18 March 2013, Ms Alvarado complained that she had still not been paid “for [her] work between 10 December 2012 and 18 January 2013”. I accept that evidence as far as it goes but without any indication of whether she worked every day during that period or whether she took any annual leave and, if so, how much, I am not satisfied that she had accrued annual leave on termination.

333    There is also a problem with the allegation concerning Jainil Modi.

334    In his case the Ombudsman relied on two documents.

335    One is an untitled document that Ms Millington said Mr Modi gave her during the investigation, which purports to calculate the annual leave he is owed. There is no evidence as to who prepared the document, when it was prepared, or for what purpose it was prepared. As such it has next to no probative value.

336    The other document appears at page 1257 of Exhibit FM-1 to Ms Millington’s affidavit. It is not specifically identified either in the evidence or in the submissions, but the Ombudsman cites it in support of the following cryptic proposition: “Leave taken deducted as recorded by the company”. Imprinted on the document are the words “National Contractors Pty Ltd” and “File Notes”, the date “07.01.13.” and the “Client Code” “Jainil Modi”. A handwritten note in the body of the document states:

Jay was on holidays from 04.01.13 til (sic) 18.02.13. as previously discussed.

Kristina Voytenko

07.01.13.

337    This note would only prove that Mr Modi took a period of leave, not that he had any period of untaken annual leave. It also says nothing about what, if anything, he was paid at the end of his employment.

338    Consequently, I am not satisfied that GPS contravened s 90(2) of the Act by failing to pay either Ms Alvarado or Mr Modi in respect of accrued untaken annual leave on termination.

339    In relation to Paul Saint James, the Ombudsman relied on emails that Mr Saint James sent to various people at GPS complaining that his wages had not been paid, in order to show that he was not paid at all after his employment ended on 20 December 2012. She also asked the Court to draw adverse inferences from GPS’s failure to produce documents in response to notices to produce. But nothing in her submissions or in the evidence to which I was taken touched upon the question of whether Mr Saint James had any accrued annual leave that was untaken at the time his employment ended. I am not satisfied that GPS has contravened s 90(2) in his case.

340    Michael Kallee, Tuula Rintala and Sumit Salhotra are in a different category. The Ombudsman was able to point to admissions made by GPS in respect of each, to the effect that these employees were entitled to payment in respect of accrued annual leave, which payment they did not receive at the end of their employment. In responses to a notice to produce issued by the Ombudsman to Reggio, GPS concedes that none of these employees was paid annual leave.

341    It follows that I am satisfied that GPS contravened s 90(2) of the FW Act in relation to each of these three employees.

342    The Ombudsman did not provide any further submissions in relation to Alyson Hellyer. I am not satisfied that there has been a contravention of the subsection in her case.

3    Failure to pay basic periodic rates of pay for personal leave

343    For each year of service with an employer, all non-casual employees are entitled to 10 days of paid personal/carers leave. The entitlement accrues progressively during a year of service according to the employees ordinary hours of work, and accumulates from year to year. See FW Act, s 96, read with s 95.

344    Section 97 states:

An employee may take paid personal/carers leave if the leave is taken:

(a)    because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b)    to provide care or support to a member of the employees immediate family, or a member of the employees household, who requires care or support because of:

(i)    a personal illness, or personal injury, affecting the member; or

(ii)    an unexpected emergency affecting the member.

345    If an employee takes leave in such a case, s 99 provides that the employer must pay the employee at the employees base rate of pay for the employees ordinary hours of work in the period.

346    But there are notice requirements. Section 107 stipulates that the employee must give notice to the employer as soon as practicable of the taking of leave and of the period, or expected period, of the leave. If required by the employer, the employee must also give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97. An employee is not entitled to take leave unless she or he complies with s 107 (see s 107(4)).

347    The allegations in this case related to four employees: Barry Dowling, Anna Plows, Linda Robinson and Lara Satchell.

348    None of these employees was employed on a casual basis and each claimed to have taken personal leave but, for the following reasons, save in relation to Ms Robinson, I am not satisfied that GPS contravened the Act as alleged.

349    Barry Dowling’s evidence was that he took sick leave on a number of occasions during his employment with GPS. He said he remembered doing so on 17 May 2012 and on 11 and 12 August 2012. He also said that he provided a doctor’s certificate to payroll each time. Emails to the accounts section of GPS were exhibited to his affidavit. They include a medical certificate signed by a dentist stating that Mr Dowling attended a dental surgery on 17 May 2012 for emergency treatment and required rest and recovery for the remainder of the day. They also include an email sent at 4.46am on Tuesday 14 August 2012 from Mr Dowling in the following terms:

I couldn’t log on last Friday night.

I tried 5 times and it kept coming back that the message can’t get through.

I did my normal hours.

I have been off sick on Saturday and Sunday nights.

Please find attached my doctor’s certificate.

It has the provider number on it.

350    The attached medical certificate dated 11 August 2012, signed by a general practitioner, stated that Mr Dowling “has a medical condition and will be unfit for work from 11/08/2012 to 13/08/2012 inclusive”.

351    Having regard to the terms of the medical certificate from the dentist for the period of absence in May, I am satisfied that notice was given as soon as practicable in that instance. But, in relation to the absence in August, there is no evidence to indicate that it was not practicable to give notice to GPS before 14 August. Indeed, the fact that a medical certificate was issued on 11 August suggests otherwise.

352    In any event, I am not satisfied that Mr Dowling was not paid his entitlement in either case. That is because, although he said in his affidavit that he did not believe he was paid for his sick days he also acknowledged that his pay slips covering the periods in question sent to him by email on 4 June 2012 and 12 September 2012 (copies of which were exhibited to his affidavit) specify that he received three and 12 hours of sick pay respectively. The payments were made at his base rate of pay ($17.95) for his ordinary hours of work (three hours per day) in the two periods. Far from contradicting the evidence in the payslips, he said that he was not sure if he had been paid those amounts or not. The allegation is not proved in his case.

353    Anna Plows evidence was that she had surgery booked for 13 December 2012 and that on 7 December 2012 she sent an email to Lou Nahjari, an office support personal assistant on 7 December accordingly, advising that she would be off for a minimum of 1 week and was unable to postpone it. Her email was sent in response to an email from Ms Nahjari sent earlier in the day apparently to all employees which stated:

Please note, as previously discussed, NO time off will be approved throughout the months of December 2012 and January 2013.

(Original emphasis.)

354    Ms Plows said that she then applied for leave by obtaining an application for leave form from the GPS website for the period from 13 December to 27 December 2012 and on or about 1 January 2013 she sent a medical certificate to Mr Modi by email. Despite this, she stated she was not paid for her period of absence.

355    The difficulty here is that there is no evidence that notice was given as soon as practicable, because there is no evidence about when Ms Plows first knew that she would be having surgery during this period. It follows that the allegation is not made out in her case.

356    Linda Robinsons evidence was that she was sick on 14 March 2012 and took leave. As I understand the notes she said she made on the day, which were exhibited to her affidavit and which she stated accorded with her recollection, this is what occurred. At 7.20am she sent a text message to Lara Satchell who was then the human resources manager informing her that she was sick and asking Ms Satchell to contact GPS cleaning staff to advise them that they need to contact her in Ms Robinsons absence. Dr Harvey Wai Shing issued a WorkCover medical certificate stating that he had examined her that day and she was unfit for work until 28 March 2012 with an anxiety neurosis secondary to harassment and bullying at work place. The medical certificate was faxed the same day to Michael Buettner at the Star of the Sea apartments where she worked and the following day to Ms Satchell. After a phone call from Ms Satchell it was then sent to the directors at GPS offices. Ms Robinson said that she took leave from 14–16 March 2012 but did not receive any payment for that leave. I would add that, while the medical evidence indicates that she remained unwell, the period in question is short because on 16 March 2012 she was summarily dismissed.

357    In the light of this evidence I am satisfied that Ms Robinson took personal leave on the dates in question and that she did not receive any payment for it. I am also satisfied that she gave notice to her employer as soon as practicable. She was entitled to be paid unless she received workers compensation but I take it from her evidence she did not. In this respect, therefore, GPS has contravened s 99 of the FW Act.

358    Lara Satchell testified that from Tuesday 12 June to Thursday 14 June 2012 she was unwell with an upper respiratory tract infection. She said that she attended at her local doctor for an appointment on 14 June 2012 but that the clinic had to reschedule the appointment due to an emergency. She stated that she obtained a medical certificate on 25 June 2012 which stated that she was unwell from 12 June 2012 to 14 June 2012. The certificate itself was not produced. She added that although she was unwell she worked from home, including answering constant calls on her work mobile. Yet, she was not paid sick leave by GPS for these days off work.

359    There is no evidence, however, that she provided any notice to her employer.

360    I therefore find that GPS contravened s 99 of the FW Act by not paying only Linda Robinson at her base rate of pay for her ordinary hours of work in the period 14 March 16 March 2012 inclusive when she was not fit for work because of a personal illness affecting her.

4    Failing to pay public holidays

361    Division 10 of Pt 2–2 (ss 114–116) deals with public holidays.

362    Section 115(1) of the FW Act provides that the following are public holidays:

    New Year’s Day;

    Australia Day;

    Good Friday;

    Easter Monday;

    Anzac Day;

    the Queen’s birthday holiday “on the day in which it is celebrated in the relevant place”;

    Christmas Day;

    Boxing Day; and

    “any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the Fair Work Regulations 2009 (Cth) from counting as a public holiday”.

363    An employee is entitled to be absent from employment on a day or part-day that is a public holiday in the place where the employee is based for work (s 114). If an employee is absent from his or her employment on such a day, the employer must pay the employee at his or her base rate of pay for the ordinary hours of work on that day or part-day” (s 116). As the note to the section makes plain, however, the reference to the ordinary hours of work … means that if the employee would not have been working on such a day or part-day in any event, he or she has no entitlement to payment under the section. It follows that the Ombudsman must prove that:

(1)    an employee was absent from work on a public holiday (or part thereof);

(2)    the employee would ordinarily have worked that day or part-day; and

(3)    GPS or National Contractors failed to pay him or her at the base rate of pay for the ordinary hours of work on that day or part-day.

364    The Ombudsman alleges that from time to time 13 permanent employees who were absent on public holidays were not paid for those days. The employees named are Jessica Alvarado Palma, Angela Bustos Alvarado, Marco Diaz, Barry Dowling, Marissa Hall, Fiona Holland, Michael Kallee, Robin Malla, Helen Pakas, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, and Xiao Teng.

365    Apart from Ms Bustos, Ms Alvarado, and Mr Kallee, each of these employees gave evidence on affidavit about their work on public holidays.

366    Despite this, the Ombudsman only adduced sufficient evidence to prove this contravention in the cases of Jessica Alvarado Palma, Angela Bustos Alvarado, Helen Pakas, Robin Malla, Cheryl Sorrell and Thomas Sung Hong. In each other case the evidence is inadequate.

367    In the case of Jessica Alvarado Palma, the Ombudsman relied on a document exhibited to Ms Millington’s affidavit that was said to show that Ms Alvarado did not work on Christmas Day 2012 or New Year’s Day 2013. The document appears to be a printout of an Excel spreadsheet recording hours of work from 24 December 2012 to 18 January 2013 inclusive. Neither Christmas nor New Year’s Day is included, although every other day in the period is, indicating that in all likelihood, but for the fact that they were public holidays, Ms Alvarado would otherwise have worked those days. Ms Alvarado’s name does not appear on the document but Ms Millington’s evidence is that it was produced to her by Ms Alvarado. Furthermore, five pages earlier in the exhibit is an email from Ms Alvarado to GPS dated 21 January 2013, complaining of GPS’s failure to pay her wages. Another email, dated 14 January, appears to have had an Excel spreadsheet entitled “Hours Jessica Alvarado” attached. The only document answering that description in the exhibit is the one I have mentioned. I accept that this document was an attachment to those emails and that it provides evidence from which it is reasonable to conclude that Ms Alvarado would usually have worked on the days Christmas and New Year fell in that period. As I have said, the emails also indicate that she was not paid for that period.

368    In these circumstances, I am satisfied that Ms Alvarado was absent on two public holidays she would ordinarily have worked and that GPS failed to pay her in accordance with its obligations under s 116.

369    In the case of Angela Bustos Alvarado, the Ombudsman relied on Praxeo records to show that Ms Bustos usually worked seven days per week and did not work Christmas Day or Boxing Day 2012. In her Workplace Complaint Form, dated February 2013, Ms Bustos said: “they never paid me the last two weeks and three days that I worked in December”. There is no evidence to the contrary. I am satisfied that she was not paid for the public holidays Christmas and Boxing Day 2012 and that she was entitled to be paid because she wold ordinarily have worked on those days. Accordingly, GPS has contravened s 116 in her case.

370    Marco Diaz worked in Brisbane. There were six public holidays during the period he was employed (11 December 2012 to 5 April 2013). He only gave evidence about one and that evidence does not assist the Ombudsman’s case. Mr Diaz said that on the Australia Day public holiday on 28 January 2013 (Holidays Act 1983 (Qld), s 2, Sch) he worked as normal. Furthermore, he also said that during his period of employment he did not take a day off sick and never needed to be away from work for any other reason. The Ombudsman relied on documents annexed to Mr Diaz’s affidavit at MD-9, MD-11, MD-12, MD-15 and MD-16. The documents consist of some bank statements, “sign-in registers” and other information touching upon the days he worked and various email chains. None of them assists in establishing the elements of this contravention. I am not satisfied that Mr Diaz ever failed to work on a public holiday on which he ordinarily would have worked.

371    In Barry Dowling’s case the Ombudsman relied only on what he said in his affidavit at paras 3334:

During my employment with GPS, I regularly worked on public holidays. Castle Hill was opened each day of the year (with the exception of Christmas day) and I worked seven days per week, so this inevitably included public holidays.

I was never paid additional monies for working on public holidays.

372    The difficulty with this evidence is that it does not disclose that Mr Dowling was absent from work on a public holiday. Indeed, it discloses the opposite. It follows that the contravention is not proved in his case.

373    In Marissa Hall’s case the Ombudsman relied on paras 13, 24, 27, 30 and 39 of her affidavit. The relevance of some of this material is obscure. Ms Hall said that she worked for 18 days in the period 18 March to 12 April 2013, which, I note, includes the Easter public holidays. But she did not say whether she worked or was absent on the public holidays or whether she would ordinarily have worked on the days the holidays fell. Without more, I am not satisfied that she was absent from work on the relevant days and therefore that GPS contravened s 116 of the FW Act in her case.

374    Fiona Holland’s evidence was that she did not work any public holidays during her employment with GPS. Her usual pattern of work was Monday to Friday. The Ombudsman’s submissions, however, failed to identify any particular public holiday Ms Holland did not work, which fell on a day on which she ordinarily would have worked, and for which she was not paid. As with so many of the contraventions pleaded by the Ombudsman, the greater part of the forensic task was left to the Court.

375    It will be recalled that Ms Holland worked from 9 May 2012 to 19 July 2012. She said that she worked in Singleton, which is in New South Wales. Monday 11 June 2012, the Queen’s birthday public holiday (Public Holidays Act 2010 (NSW), s 4(h)), was the only public holiday in NSW during that period. Ms Holland said that she received a pay slip each time she was paid and annexed these to her affidavit. The pay slip for the period 11–24 June 2012 shows that she was paid for 36.25 hours. Her Praxeo records show that in that period she worked for at least 37.4 hours and indicate that she did not work the public holiday. The inference is that she was underpaid but, without more, it is not possible to infer that she was not paid for the public holiday. The surrounding periods, in which there were no public holidays, show similar variations in pay. In the previous period, from 28 May to 10 June, for example, the Praxeo records indicate that she worked 30.5 hours but the pay slip indicates that she was paid for 30. In the following period, from 25 June to 8 July, the Praxeo records show her working 37 hours but the pay slips indicates that she was paid for 42.2. The variations between the Praxeo records (the only evidence of when she worked) and the pay slips (the only evidence of how many hours she was paid for) are simply too great from week to week to support the inference that she was not paid for the public holiday. It follows that the contravention is not proved in his case.

376    In the case of Michael Kallee, the Ombudsman relied on Praxeo records to show that he did not work Easter Monday (9 April) or Anzac Day (25 April) 2012. She also relied on Praxeo records and pay slips to show his usual pattern of work, which appears generally to have been every week day and some days on weekends. To show that Mr Kallee was not paid for the Anzac Day public holiday, the Ombudsman referred to the pay slip for the period 16–29 April 2012, which shows that Mr Kallee was paid for 27 hours. As there are no Praxeo records for that period, however, and as Mr Kallee’s hours of work were somewhat variable (the previous pay slip shows 30 hours, the pay slip before that 33 hours, the pay slip before that 15 hours), it is not possible to know whether he was or was not paid for Anzac Day. With regard to Easter Monday, the Ombudsman pointed to the fact that GPS did not provide the pay slip for that period and submitted that “based on [its] practice of not paying employees for work not performed on public holidays, it can be inferred that the employee was not paid for his absence on Easter Monday”. This is a truly “bootstraps” argument. There is no direct evidence of such a practice. Nor is there evidence from which an inference to that effect may comfortably be drawn. The allegations, after all, involve only 13 employees. For all these reasons, I am not satisfied that GPS contravened s 116 in relation to Mr Kallee.

377    Robin Malla’s evidence was that he did not work on Christmas Day, Boxing Day 2012 or New Year’s Day 2013, although he usually worked seven days a week. He said that he was not paid in respect of public holidays on which he did not work. The pay slip for the period 24 December 2012 – 6 January 2013 records that Mr Malla was notionally paid $651.24 for 51 hours of work, at a purported pay rate of $12.76 per hour. Though his Praxeo records only cover up to 29 November 2012, Mr Malla said that from December 2012 he normally worked about 26 hours per week, which roughly accounts for the 51 hours over the two weeks covered by that pay slip. The compelling inference is that Mr Malla was paid for his usual hours in that fortnight, but at a grossly insufficient rate (the National Minimum Wage at that time was $15.96 per hour). By failing to pay Mr Malla at least at the applicable base rate of pay for his ordinary hours on these three public holidays, GPS contravened s 116 in relation to Mr Malla.

378    Helen Pakas worked in Sydney. In her affidavit she said that between 1 July 2011 and 30 June 2013 there were some 25 public holidays that fell on days that she would otherwise have been rostered to work and that, of these, she only worked on Labour Day, 3 October 2011 (Public Holidays Act 2010 (NSW), s 4(i)). A pay slip covering the Christmas/New Year period in 2012–3, which was produced by National Contractors to the Ombudsman and exhibited to Ms Millington’s affidavit, records that Ms Pakas was only paid for 42.86 hours between 24 December 2012 and 6 January 2013. The pay slips for the surrounding periods show that she was paid in respect of between 64.5 and 70 hours. The most likely explanation for the dramatic drop in her paid hours in the period 24 December – 6 January is that Ms Pakas was not paid for Christmas Day, Boxing Day and New Year’s Eve, which she said she did not work. That is sufficient to establish a contravention of s 116 in her case.

379    Dianne Sjoberg worked in Adelaide. She referred to seven public holidays that fell within the 12 months during which she was employed by GPS. She said she did not work on those days but she did not say whether those days were days upon which she ordinarily would have worked. Neither did she say what her ordinary hours of work were at those times. The Praxeo records suggest that she did not work the entire week around the first public holiday she mentions, Labour Day, 3 October 2011 (Holidays Act 1910 (SA), s 3, Sch 2). It also suggest that she did not work at all between 15 December 2011 and 9 January 2012, so there is no evidence to indicate that Christmas Day, Boxing Day, New Year’s Day or the additional public holidays on 27 December and 2 January 2012 were ordinary work days for her. The final public holiday she names is Australia Day (26 January) 2012. The Praxeo records show that she worked the six days following Australia Day, but the last day she worked before Australia Day was 19 January. Her hours, at least as recorded by the Praxeo system, are erratic in this period. Although she said that the Praxeo system was patchy, she offered no other evidence as to when she worked in this period.

380    The Ombudsman also relied on the Hurrell calculations. These have a number of entries under the column “Public Holiday not worked”, but there is no overt reference to the question of whether or not the public holidays fell on days Ms Sjoberg ordinarily worked. The Ombudsman also “pinpointed” some 41 pages of assorted documents produced to her by Reggio in respect of Ms Sjoberg, which were exhibited to Ms Millington’s affidavit. Among these are what appear to be time records, which mirror what is set out in the Praxeo summary, and pay slips, and show a widely varying number of hours worked from week to week. None of this appears to be of any assistance.

381    For these reasons I find that the Ombudsman has not discharged her burden of proof in relation to this contravention insofar as it concerns Ms Sjoberg.

382    Cheryl Sorrell, Ms Sjoberg’s sister, referred in her affidavit to the same seven public holidays. Like Ms Sjoberg, she said that she did not work on any of them. She said that some of the holidays fell on days on which she usually would have been rostered to work, but she did not say which holidays they were or which days she usually worked. Like Ms Sjoberg, her Praxeo records do not show her working between 15 December 2011 and 9 January 2012, nor between 19 and 27 January 2012, so it is unclear which of the public holidays fell on days that she was normally rostered to work. As she did with Ms Sjoberg, the Ombudsman again referred en bloc to documents produced by Reggio (in Ms Sorrell’s case, these amounted to a mere 37 pages). The documents are of a similar kind to those produced in relation to Ms Sjoberg and are equally unenlightening. The Ombudsman has not discharged her burden of proof in relation to Ms Sorrell.

383    Thomas Sung Hong gave evidence to the effect that he was absent from work on Christmas Day 2011, New Year’s Day 2012, and Christmas Day 2012, which he said fell on days he would usually have worked. The pay slip for the period 12–25 December 2012, annexed to his affidavit, shows that he was paid for 59 hours. His Praxeo records, however, indicate that he worked 56.7 hours during that period. His shift of 20 December 2011 shows a duration of only one minute, which is most likely an error, but there is no evidence of how long he did work that day. The surrounding shifts vary from 3.0 to 6.3 hours, so it is not possible to safely extrapolate from the information which can be gleaned from those records. As the pay slip and the Praxeo records differ in the number of hours they record, it is not possible to infer that he was paid or not paid for any particular day in that period.

384    The pay slip for the following period, however, (which includes New Year’s Day 2012) evidences payment for 67 hours, and the Praxeo records show that he worked 67.3 hours. The inference is that he was paid, at the most, for the hours he actually worked (albeit rounded down to the nearest whole hour) and he was not paid for the hours he did not work on New Year’s Day. As the Praxeo records show him working seven days a week in this period, New Year’s Day was certainly a day he would ordinarily have worked. The contravention is proved in his case.

385    By Christmas Day 2012, however, the gulf between the information in the pay slips and the information in the Praxeo records had reappeared. The pay slip for the period 24 December 2012 to 6 January 2013 records that he was paid for 30.2 hours when the Praxeo records show that he worked 41.7 hours. While this is evidence of underpayment, it does not prove that he was not paid for the days he would usually have worked which fell on public holidays.

386    The Ombudsman has proved the contravention in relation to Mr Hong in respect of New Year’s Day 2012 only.

387    Xiao Teng’s evidence was that she normally worked on Mondays but did not work on Monday 1 October 2012, which was the Labour Day public holiday in the ACT where she worked (Holidays Act 1958 (ACT), s 3(1)(a)(xi)). She stated that she was not paid for that day. She did not explain why and the basis for the statement is not at all apparent from the documentary evidence. A bank statement annexed to her affidavit shows that National Contractors paid her $546.00 on 9 October 2012, $768.60 on 19 October 2012, $500 on 2 November 2012, and $539.50 on 5 November 2012. Annexed to Ms Teng’s affidavit and marked XT-3 is an email she sent to Ms Millington, which contains what Ms Teng said were the actual hours she worked. There is no obvious relationship between those hours and the amounts of money that were deposited in Ms Teng’s bank account. Ms Teng said that she did not receive any pay slips and none are exhibited to Ms Millington’s affidavit. Again, the Ombudsman refers to the Hurrell calculations. These rely on the bank statements I have referred to. They attribute the payments to various days of Ms Teng’s work in such a way that it appears that she was not paid for her public holidays. But they offer no clue as to how it was determined which payments would be attributed to which periods of work. Be that as it may, Ms Teng’s evidence was admitted without objection and in those circumstances should be accepted at face value.

388    I therefore find that GPS has contravened s 116 in her case.

5    Failing to give written notice of termination

389    Section 117(1) (which appears in Pt 22 Div 11 of the FW Act) provides that an employer must not terminate an employee’s employment without giving the employee written notice of the day of the termination, which cannot be before the day the notice is given.

390    Division 11 applies to all employees except for those described in s 123, being employees employed for a specific period of time, for a specified task, or for the duration of a specified season; employees whose employment is terminated because of serious misconduct; casual employees; employees (other than apprentices) to whom a training arrangement applies and whose employment is for a specified period or limited to the duration of the training arrangement; and employees prescribed by the Regulations as an employee to whom Div 11 does not apply. The burden of proving that the notice is not required because the employees come within one of the exceptions contained in s 123 falls on the employer: Vines v Djordjevitch at 519. In the absence of any evidence from the respondents, that burden has not been discharged.

391    The Ombudsman alleges that the following four employees were terminated without written notice contrary to s 117(1): Angela Bustos Alvarado, Lara Satchell, Xiao Teng and Wen Yang.

392    The evidence bears out the Ombudsman’s allegations in all four cases. There is also evidence that Thomas Sung Hong was dismissed without written notice but I put this evidence to one side as no allegation to this effect was made either in the pleading or in the written submissions. I am satisfied that GPS contravened s 117(1) as alleged.

393    Lara Satchell, Xiao Teng and Wen Yang each deposed to having been dismissed without written notice. I accept their evidence. I find that Ms Satchell was dismissed without notice on 21 June 2012, and Ms Teng and Mr Yang on 16 November 2012.

394    In a Fair Work Ombudsman Workplace Complaint Form received by the Ombudsman on 14 February 2013, Angela Bustos Alvarado stated that she asked for and was granted time off from 28 December 2012 to 28 January 2013. After 28 January it appears that she tried to return to work but received no response when she attempted to contact GPS. It also seems that GPS had no further contact with her and her employment was effectively terminated. In her complaint she stated: “they never fired and I never quit”. Though her English is not strong, it is tolerably clear in the context of her complaint as a whole that she did not receive notice that her employment had been terminated. The Ombudsman also pointed to the fact that neither GPS nor National Contractors produced copy of any notice of termination for Ms Bustos in answer to the notices served upon them to produce “records and documents evidencing details of termination of [her] employment”. In these circumstances I find that she too was dismissed without written notice.

6    Failure to make payments in lieu of notice

395    Subsections 117(2) and (3) state:

    Amount of notice or payment in lieu of notice

(2)    The employer must not terminate the employee’s employment unless:

(a)    the time between the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b)    the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

    

(3)    Work out the minimum period of notice as follows:

(a)    first, work out the period using the following table:

 

Period

 

Employee’s period of continuous service with the employer at the end of the day the notice is given

Period

1

Not more than 1 year

1 week

2

More than 1 year but not more than 3 years

2 weeks

3

More than 3 years but not more than 5 years

3 weeks

4

More than 5 years

4 weeks

(b)    then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

396    These provisions do not apply to certain employees described in s 123 of the Act.

397    The Ombudsman claims that none of the 10 following employees received notice or payment in lieu: Abraham Arguello, Wendy Bong, Angela Bustos Alvarado, Rangana Dissanayake, Barbara Piper, Linda Robinson, Lara Satchell, Xiao Teng, Robert Wilkey and Wen Yang.

398    In the absence of evidence to prove that these employees fell under one of the exceptions in s 123, I am satisfied that the contravention is made out in respect of each of them.

399    Exhibited to Abraham Arguello’s affidavit was a letter entitled “Termination Letter” from Ms Voytenko dated 14 September 2013, which Mr Arguello said he received by email the same day. The letter contained the assertion that his employment was terminated as at that date. Mr Arguello said that he did not receive any payment from GPS when his employment was terminated. This evidence establishes that he received no notice of termination and no payment in lieu. Accordingly, I find that GPS contravened s 117(2) of the Act in respect of Mr Arguello.

400    I have already found that Wendy Bong received no payment at all for his work for GPS. He deposed that he was dismissed in person, effective immediately, at the end of his shift on 13 February 2013. It follows that GPS contravened s 90(2) of the Act in his case, too.

401    It will be recalled that I found that Angela Bustos Alvarado was given no notice when her employment was terminated. In her complaint to the Ombudsman, she stated that her employment was brought to an abrupt end upon her return from leave, without any further payment. Accordingly, I am satisfied that on termination she did not receive notice or payment in lieu and that GPS has contravened s 90(2) of the Act in this respect as well.

402    Rangana Dissanayake said that he received his written notice termination, backdated by eight days, on 28 October 2011 when he was dismissed effective immediately. He also said that he did not receive any payment at all when his employment was terminated. Accordingly, I find that GPS also contravened s 90(2) of the Act in his case.

403    Barbara Piper’s evidence was that she was dismissed by telephone on 9 August 2012 and had not received any written notice at that time. She also said that she did not receive any payment from GPS after 3 August 2012. This evidence establishes that she did not receive notice of termination or payment in lieu. I therefore find that GPS contravened s 90(2) of the Act in her case, too.

404    Linda Robinson’s evidence was that she was told on 21 March 2012 that her employment had been terminated effective 16 March 2012. She also said that she received a letter on 23 March 2012, dated 16 March 2012, stating that her employment was terminated effective immediately. As to whether she was paid in lieu of notice, the Ombudsman relied only on a statement in Ms Robinson’s affidavit that she “[had] not received payment for all owed wages”. That says nothing about whether or not she received payment in lieu of notice. In her Workplace Complaint Form, however, which was exhibited to her affidavit, she said this:

On Wednesday 14-03-12 I was sick from work/workers comp

On Friday 16-03-12 Reggio Investments terminated my employment

I was informed of termination on 21-03-12.

I was informed my pay would be in my account by Friday 23-03-12 / confirmed by HR manager Lara Satchel

Reggio Investments have not paid me and have stated they will not pay me unless I agree to their reasons for termination and sign the termination letter. I WILL NOT SIGN THE termination letter.

Also they will not pay me unless I return the company phone.

I will return the company phone although they are unlawfully withholding my pay.

I require your assistance to have my pay deposited to my account immediately without any deductions except tax (Gross is $2,155.59).

405    The overall effect of this evidence is that she was not paid at all after the termination of her employment. I take from this that she did not receive payment in lieu of notice. I find that 117(2) of the Act was contravened in her case, too.

406    As I have already said, Lara Satchell’s evidence is that she was dismissed without written notice. She worked from January until 14 June 2012 and was therefore entitled to one week’s notice. From 5 April 2012 she was paid $1,412.67 per fortnight, but the last such payment was on 7 June. The only further payments she said she received were a payment of $500 on 27 June 2012 (which her bank statement shows was labelled “part pay” by the transferor) and another payment of $300 on 13 July 2012 (labelled “back pay”). In the absence of any evidence to the contrary, I take GPS’s descriptions of these payments at face value. They were (partial) payments for wages owed, not pay in lieu of notice. Accordingly, I find that GPS contravened s 117(2) of the Act in respect of Ms Satchell.

407    I have already found that Xiao Teng was not given written notice of the termination of her employment. I have also found that her last day of work was 16 November 2012 but she did not receive any payment after 5 November 2012. Accordingly, I find that GPS contravened s 117(2) of the Act in her case, too.

408    Robert Wilkey gave notice on around 25 July 2012 that he would finish working on 12 August 2012. Yet on about 2 August 2012, after he contacted Rosario seeking payment of what he said were unpaid wages, Rosario dismissed him by telephone, effective immediately. Mr Wilkey said that he received a payment of $650 into his bank account in mid-September 2012 and had not received any payment since then. He also said that he “did not receive any payment for notice of termination. Although he does not explain why he believes that any money he received post-termination was not attributable to those entitlements, I am prepared to accept what he said. It is supported by the documentary evidence. The pay slips annexed to his affidavit show that he was generally paid between $700 and $750 each fortnight and I infer that this is what he was being paid at the time his employment was terminated. As he said that he worked from 15 March 2011 until 3 August 2012, he was entitled to two weeks’ pay in lieu of notice. The $650 he received was insufficient to cover the two week notice period. Accordingly, I find that GPS contravened s 117(2) of the Act in his case.

409    I have also said that Wen Yang was dismissed without written notice and that he was not paid at all. Accordingly, I find that GPS contravened s 117(2) of the Act in his case, too.

7    Failure to pay minimum rates of pay to Abraham Arguello

410    This is the first of the allegations of award contravention.

411    The allegation here is that GPS failed to pay Abraham Arguello a rate of pay at least equal to the rate prescribed by cl 16.1 Cleaning Services Award.

412    Mr Arguello, it will be recalled, was a Level Three cleaning service employee. He worked for GPS until 13 September 2013 inclusive but was not paid for the six weeks before his employment was terminated (on 14 September 2013).

413    From 1 July 2013 until 30 June 2014 cl 16.1 of the award provided as follows:

An employer must pay full-time employees minimum weekly wages for ordinary hours (exclusive of penalties and allowances) as follows:

 

Classification

Minimum weekly rate

Minimum hourly rate

Cleaning Service Employee

$

$

...

Level 3

724.50

19.07

414    A “full-time employee” is “an ongoing employee engaged to work an average of 38 ordinary hours per week” (cl 12.3), and ordinary hours are generally worked in periods of not more than 7.6 hours per day, on not more than five days per week (cl 24.1). Mr Arguello testified that he worked for GPS seven days per week, often over 80 hours of work. He therefore worked well in excess of the 38 ordinary hours a week required to be a full-time employee. For those ordinary hours alone, he ought to have been paid $724.50 per week, or $4,347 for the six weeks before his employment was terminated.

415    Exhibited to Mr Arguello’s affidavit was an extract of his bank statement for the period May to September 2013. That discloses a deposit of $2,903 from National Contractors on August 2013 and after that only one other deposit from National Contractors in the sum of $510 on 4 September 2013. On the basis of this evidence I am satisfied that GPS contravened cl 16.1 of the award.

416    Accordingly, GPS has contravened s 45 of the FW Act.

8    Failure to pay minimum rates of pay to the administrative employees

417    The Ombudsman alleges that GPS failed to pay some of the administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by the Clerks — Private Sector Award.

418    As Level 1 is the lowest classification of the award, any employee covered by the award must be paid at least the rate of pay for that classification: cll 15.1, 16, A.2.5.

419    Unhelpfully, apart from referring to cll 16.1 and A.2.5, the Ombudsman’s submissions neither identified the relevant minimum rates nor included any guidance as to how the rates are to be determined.

420    Clause 16 of the award provides as follows:

16.    Minimum weekly wages

   

Classification

Per week $

Level 1—Year 1

698.40

Level 1—Year 2

733.00

Level 1—Year 3

756.00

Level 2—Year 1

764.90

Level 2—Year 2

779.10

Level 3

807.90

Call centre principal customer contact specialist

813.60

Level 4

848.30

Level 5

882.80

Call centre technical associate

967.00

421    Clause 16, which contains no operative provision, must be read with cl 15.1, which provides that “[a]n employee, other than an excluded employee, must be employed in a classification in Schedule D and paid as such.” The classifications listed in cl 16 correspond to those in Schedule D.

422    Clause 16, as the Ombudsman’s submissions suggest, must also be read with the transitional provisions in Sch A, where cl A.2.5 is to be found.

423    Clause A.1.2 provides that the provisions in Sch A apply:

(a)    when there is a difference, in money or percentage terms, between a provision in a relevant transitional minimum wage instrument (including the transitional default casual loading) or award-based transitional instrument on the one hand and an equivalent provision in this award on the other;

(b)    when a loading or penalty in a relevant transitional minimum wage instrument or award-based transitional instrument has no equivalent provision in this award;

(c)    when a loading or penalty in this award has no equivalent provision in a relevant transitional minimum wage instrument or award-based transitional instrument; or

(d)    when there is a loading or penalty in this award but there is no relevant transitional minimum wage instrument or award-based transitional instrument.

(Emphasis added.)

424    Clause A.2.1 provides that the transitional arrangements relating to minimum wages apply to an employer which, immediately before 1 July 2010:

(a)    was obliged,

(b)     but for the operation of an agreement-based transitional instrument or an enterprise agreement would have been obliged, or

(c)     if it had been an employer in the industry or of the occupations covered by this award would have been obliged

by a transitional minimum wage instrument and/or an award-based transitional instrument to pay a minimum wage lower than that in this award for any classification of employee.

425    Clause A.2.5 then provides that:

From the following dates the employer must pay no less than the minimum wage for the classification in this award minus the specified proportion of the transitional amount:

  

First full pay period on or after

1 July 2010

80%

1 July 2011

60%

1 July 2012

40%

1 July 2013

20%

426    The “transitional amount” is “[t]he difference between the minimum wage for the classification in this award and the minimum wage in clause A.3.3”: cl A.3.4.

427    Clause A.3.3 provides that:

Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned.

428    Clause A.2.7 provides that “these provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.

429    Provided the elements in cll A.1.2 and A.2.1 are satisfied and the transitional minimum wage arrangements apply, the procedure for calculating the minimum wage of an employee for the employee’s work on and after the first full pay period after 1 July 2010 and before the first full pay period on or after 1 July 2014 is therefore as follows:

(1)    determine the transitional amount:

(a)    identify the employee’s classification under the Clerks Modern Award;

(b)    identify the minimum wage for that classification (A);

(c)    identify the relevant transitional minimum wage instrument and/or award-based transitional instrument that applies (or applied) to the employee;

(d)    identify the employee’s classification under that instrument or those instruments;

(e)    identify the minimum wage for that classification (B);

(f)    determine the transitional amount, being the difference between A and B (C);

(2)    identify the specified proportion of the transitional amount (D); and

(3)    perform the following calculation:

B – (C x D)

430    In response to my request, the Ombudsman provided further submissions relating to the application of the transitional provisions in the award.

431    Regrettably, the further submissions were still wanting. First, the Ombudsman asserted that “the relevant pre-modern award” (by which I assume she meant “the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification [of the employees] concerned”) was the Clerical and Administrative Employees (State) Award of New South Wales, but did not explain why that was so. Secondly, she asserted that the employees’ classification under the “pre-modern award” was “Level 2”, because this was “equivalent” to their classification under the Clerks Modern Award (said to be “Level 2, year 1”), but did not explain how this was determined. Thirdly, she did not make any submissions about the application of the relevant provisions to the evidence concerning any individual employee.

432    Fortunately for the Ombudsman, however, it was possible to deal with these contraventions, at least for the purposes of determining whether or not a contravention of some kind took place, without delving into the Byzantine complexities of the transitional provisions to determine the precise minimum wages that applied. If the Ombudsman wishes to press her claims for compensation in respect of this contravention, it will be necessary for her to provide still further submissions at the next stage of the proceeding.

433    The administrative employees the subject of the allegations are Aisling Dunn, Moona Hasan, Christine Meager, Jainil Modi, and Md Shamsuzzoha.

434    For the reasons given below, I find that GPS failed to pay Ms Dunn, Ms Hasan, Ms Meager and Mr Shamsuzzoha at least the minimum rate of pay but that the Ombudsman has not proved her case in respect of Mr Modi.

435    Aisling Dunn was employed by GPS as a full-time receptionist between 4 March and 19 April 2013. She worked from 9.00am to 5.00pm five days a week. Two fortnightly pay slips were annexed to her affidavit, covering the period 4–15 and 16–31 March 2013. The pay slips record a total payment of $2,179.85, which is the full amount Ms Dunn said she was paid for the work she undertook for GPS. Thus, she was not paid at all for the work she performed from 1 April until her employment ended on 19 April. Accordingly, I find that GPS contravened the award in her case at least in respect of that final period in which she was not paid at all.

436    According to Moona Hasan’s evidence, which I accept, she was only paid a total of $600 for 15 days’ work (ranging from six to eight hours per day). The total sum is so low that it could not conceivably conform to the award rate.

437    Christine Meager worked for 23 days, from 27 November until 20 December 2012. In her affidavit she said that in the first fortnight (ending 6 December 2012) she worked a total of 34 hours, submitted an invoice for $612 (equivalent to $18 per hour), and was paid. She then submitted an invoice for $270 for 15 hours of work between 8 and 20 December 2012 but said that she received no payment. I accept her evidence. It follows that, regardless of what sum she should have been paid under the award, GPS contravened the award at least in the last 10 days of her employment.

438    To prove that GPS contravened the award in respect of Jainil Modi, the Ombudsman initially directed the Court in her written submissions to:

(a)    all of the records produced in relation to Mr Modi by National Contractors in response to a notice to produce;

(b)    the transcripts of Ms Millington’s interview with Mr Modi, upon which the Ombudsman expressly disavowed reliance at the hearing; and

(c)    all the documents and records given by Mr Modi to Ms Millington during her investigation.

439    When asked to pinpoint the relevant evidence, however, the only material upon which she relied relating to Mr Modi’s actual hours of work were the Hurrell calculations, purporting to set out a total of the hours Mr Modi and others worked, exhibited to Ms Hurrell’s affidavit, and a separate sheet of calculations exhibited to Ms Millington’s affidavit. The Hurrell calculations appear to be based on “ordinary hours of work” for the period in question, rather than any particular evidence about the hours Mr Modi worked. Ms Millington’s evidence identifies the calculation sheet only as one of the many “documents and records” received from Mr Modi. There is no evidence of who prepared the document, when it was prepared, why it was prepared, or, critically, upon what information it was based.

440    Md Shamsuzzoha’s was employed from 15 June – 6 July 2012. During that time he worked 135 hours, excluding breaks. He said that he was paid two separate amounts totalling $398. He did not state that these were the only payments he received. But he detailed his efforts to secure payment for all the work he performed. On a proper reading of his affidavit, the inference to be drawn is that he received no more than $398. Payment of only $398 for 135 hours equates to just under $2.95 per hour worked — by any measure a gross underpayment.

9    Failure to pay superannuation in accordance with the Clerks Modern Award

441    Clause 23.2 of the Clerks Modern Award states that:

An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.

442    The requirement to make superannuation contributions in cl 23.2 is expressed by reference to the superannuation guarantee charge. To understand how the scheme operates it is necessary to go to at least two Acts. The conditional obligation to pay the charge is established by s 5 of the Superannuation Guarantee Charge Act 1992 (Cth) (Charge Act), which imposes the charge “on any superannuation guarantee shortfall of an employer for a quarter” and s 16 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (Administration Act), which provides that the obligation is on the employer to pay the charge. The Charge Act is to be read as one with the Superannuation Guarantee (Administration) Act 1992 (Cth) (Administration Act): Charge Act, s 3. The method of calculating the shortfall is set out in ss 17 and 19 of the Administration Act.

443    Typically of Commonwealth revenue legislation, the Administration Act is complex. Yet, the Ombudsman made no reference to it or, indeed, to the Charge Act. For present purposes it suffices to say that GPS would have been liable to pay the charge with respect to an employee if, relevantly, it failed to contribute the required amount to the employee’s superannuation fund. Charge Act, s5, 6; Administration Act, ss 16, 17, 19 and 23. From 1 July 2002 until 30 June 2013, the required amount was 9% of the total salary or wages paid by the employer to the employee: Administration Act (as it stood before commencement of the Superannuation Guarantee (Administration) Amendment Act 2012 (Cth)), s 19. From 1 July 2013 until 30 June 2014, the charge increased to 9.25%; since then it has been 9.5% and will remain so until 1 July 2021: Administration Act (as amended by the 2012 Act), s 19.

444    There are some exceptions to these obligations but none applies here.

445    The Ombudsman alleges that no superannuation contribution at all was paid to a superannuation fund for the benefit of any of the following employees covered by the award: Aisling Dunn, Moona Hasan, Christine Meager, Jainil Modi, Lara Satchell and Md Shamsuzzoha.

446    For the reasons set out below, I find that GPS, as the true employer, contravened cl 24.2 of the Clerks Modern Award in that it failed to make superannuation contributions to a superannuation fund for the benefit of each of these employees except for Mr Modi.

447    Christine Meager said that she “was never paid superannuation for [her] period of employment. She was one of the employees engaged on the pretence that she was a contractor. She was encouraged to obtain an ABN and to submit invoices for payment. This was an arrangement that was calculated to avoid the payment of employees’ entitlements such as superannuation contributions made by the employer. In these circumstances, I find that no superannuation contributions were made on her behalf. The contravention is proved in her case.

448    Moona Hasan was another employee who was purportedly engaged as a contractor. She said and I accept that “[n]o superannuation contributions were made on [her] behalf”. Like Ms Meager, she was required to submit invoices for payment in a sham contracting arrangement. The contravention is proved in her case.

449    Aisling Dunn said that she was not paid any superannuation”. Though the language used is infelicitous, it is clear that she means no contributions were made for her benefit. I accept her evidence. The contravention is proved in her case.

450    To prove that no superannuation contributions were made to a superannuation fund with respect to Jainil Modi, the Ombudsman relied principally on the response to the notice to produce issued on 13 January 2014. The Ombudsman conceded that pay slips displaying superannuation amounts were produced but submitted that the pay slips should be disregarded for two reasons.

451    The first was “the employee’s evidence that [he] was not paid superannuation”. There was no such evidence. The evidence to which the Ombudsman referred is a page headed “Jainil Modi outstanding Payment Calculation”, which contains a series of calculations and handwritten notes. It is said to have been provided by him. It makes reference to outstanding superannuation. But like the document proffered in support of contravention 2, there is no evidence of when, by whom, in what circumstances, or by what means it was prepared. Like that document, it is entitled to no weight.

452    The second reason the Ombudsman submitted the evidence in the pay slips should be disregarded was that “the evidence establishes that GPS had a practice of listing superannuation on payslips but not actually making the payments into a superannuation fund”. In support of this contention she referred to the evidence of Alfonso Alcuitas, Barry Dowling, Fawaz El Rahman and Anna Plows. I refer to their evidence on this matter below in relation to contravention 19. While their evidence shows that the pay slips are unreliable, it does not prove that GPS had a universal practice of failing to make superannuation contributions. In the absence of evidence contradicting them, the pay slips remain the best evidence of what contributions were made on Mr Modi’s behalf.

453    In Mr Modi’s case, I find that the Ombudsman has failed to discharge her burden of proof in relation to this contravention.

454    Lara Satchell’s evidence was that she was “not paid any superannuation while [she] was employed by GPS (despite [her] payslips alleging that she was)”. I accept her sworn evidence over that in the pay slips. The contravention is proved in her case.

455    Md Shamsuzzoha said that Mr Kanbar told him that he would receive superannuation but he “was not paid superannuation”. The only pay slip in evidence for him contains no record of superannuation being paid. I conclude that GPS did not make superannuation payments on his behalf. The contravention is proved in his case.

10    Failure to pay overtime to administrative employees

456    Read with cl 25, cl 27.1 of the Clerks Modern Award required that the administrative employees working in excess of 38 hours per week be paid time and a half for the first two hours and double time thereafter calculated on a daily basis.

457    The Ombudsman alleges that two administrative employees — Lara Satchell and Md Shamsuzzoha — worked overtime but were not paid overtime rates.

458    Lara Satchell was told by both Rosario and Enrico that her “core hours” of work would be from 9.00am to 5.00pm Monday to Friday but that she would also need to travel and work off-site at times. She was given a mobile phone, presumably for this purpose. At paras 38–40 of her affidavit she stated:

38    While my hours were supposed to be 9am to 5pm, I found that my mobile phone rang around the clock. I often got calls in the middle of the night from cleaners who couldn’t work out how to use the praxeo system. The cleaners all had my mobile number as I had to provide it to them when I arranged their trial (in case they were not able to locate the place to meet, or couldn’t find Alfredo). My number was also in the starter pack that every new cleaner was provided. If the cleaners did not turn up to work at a particular site (which often occurred), Alfredo would call me and say the cleaner hasn’t turned up, you need to call the cleaner”. I would then have to make multiple calls in order to try and locate the cleaner, or arrange for another cleaner, where possible.

39    I also spent a lot of time on the phone dealing with other queries, including cleaners who couldn’t find a particular site or get onto site, cleaners who were meeting with Alfredo to do a “trial” but couldn’t find the meeting place and cleaners who had not been paid ... Because of the hours worked by cleaners (ie between 9pm and 5am), this meant that I was receiving calls at all hours of the day and night. On the Friday night of my first week in the job, I recall being on the phone at midnight because I was dealing with a cleaner who couldn’t find the relevant building.

40    A couple of weeks into the role I started to travel interstate with other members of the team, which meant working long days of anywhere between 7.00am and 10.00pm. On one occasion I had to drive down to Melbourne with Ross, in a company ute carrying cleaning equipment. I stayed one night and then flew back to Sydney. On at least 4 other occasions I had to drive to Singleton, which is a 4 hour drive from Sydney. I was never paid for those extra hours (and they were not recorded in the praxeo system). I was told by Ross that it was just part of my job”.

459    Ms Satchell said that Enrico told her she would be paid an annual salary, starting at $38,000. Paragraph 17.1(a) of the award permits an employer to pay an employee an annual salary in satisfaction of any or all of the following provisions:

(i)    clause 16—Minimum weekly wages;

(ii)    clause 19—Allowances;

(iii)    clauses 27 and 28—Overtime and penalty rates; and

(iv)    clause 29.3—Annual leave loading.

460    That said, para 17.1(b) provides:

Where an annual salary is paid the employer must advise the employee in writing of the annual salary that is payable and which of the provisions of this award will be satisfied by payment of the annual salary.

461    Furthermore, cl 17.2 makes it clear that the payment of an annual salary must not be to the disadvantage of an employee. It states:

Annual salary not to disadvantage employees

(a)    The annual salary must be no less than the amount the employee would have received under this award for the work performed over the year for which the salary is paid (or if the employment ceases earlier over such lesser period as has been worked).

(b)    The annual salary of the employee must be reviewed by the employer at least annually to ensure that the compensation is appropriate having regard to the award provisions which are satisfied by the payment of the annual salary.

462    Ms Satchell said that she was told that she would be paid a salary, not that she was. She also gave evidence that Rosario told her to log her hours in the Praxeo system. This requirement rather tells against the conclusion that she was a salaried employee. On the other hand, the payslips refer to salary payments and so suggest that she was paid a salary albeit that she was not always paid the right amount. Regardless, there is no evidence that GPS advised Ms Satchell in writing or at all as to which of the provisions of the award would be satisfied by payment of that the annual salary. The amount Ms Satchell was told she was paid is low. It equates to an hourly rate of little more than $18 or $19 (depending on whether the calculation is made over a 40 or 38 hour week). It would not compensate her for working outside ordinary hours. In these circumstances and in the absence of evidence to indicate that the salary was intended to satisfy the terms of cl 27 of the award, I am persuaded that the failure to make overtime payments at the prescribed rates is a contravention of cl 27.

463    Md Shamsuzzoha was hired for a two week project. He said that he was told by Sandip, who I infer was Sandeep Kanbar, that he would be paid at the end of the fortnight by bank transfer. Mr Kanbar told him that it was a 9am to 5pm position. But Mr Shamsuzzoha said that in practical terms [he] had to stay back every night in order to finish the project, and it was not able to be completed within a fortnight. MShamsuzzoha said that he worked a total of 135 hours from 15 June 2012 until July 2012 excluding breaks. He said he recorded his time, as instructed by Mr Kanbar, in a binder located in the accounts department. A record of time sheet & wage calculation annexed to his affidavit (MS–5) shows that he worked a total of 9 hours on 15 June, which was the end of the pay period, 82.5 over the next fortnight and 43.5 over the following five days. A pay slip from Reggio records annexed to his affidavit (MS–3) shows that on 4 July 2012 he was paid wages (described only as base hourly) of $198 gross for the period from 1 June 2012 to 15 June 2012. His bank account records show a direct deposit on 4 July 2012 of $198 by Reggio and another on 19 October 2012 of $200 by National Contractors (described as part pay). The effect of his evidence is that these are the only amounts he was paid.

464    It follows that he was manifestly underpaid, and indeed not paid overtime although the evidence discloses that he worked in excess of 38 hours a week.

465    Accordingly, in the case of both these employees I find that GPS failed to pay overtime in accordance with the award and that it thereby contravened s 45 of the Act.

11    Failure to pay annual leave loading to administrative employees

466    In her submissions in support of this contravention, the Ombudsman said:

GPS was required to pay Administrative Employees annual leave loading as prescribed by clause 16 of the Clerks Modern Award.

467    Clause 16 of the Clerks Modern Award deals with minimum weekly wages. It says nothing about annual leave loading. Clause 29.3 is the relevant clause. It provides as follows:

(a)    During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 16—Minimum weekly wages. Annual leave loading payment is payable on leave accrued.

(b)    The loading is as follows:

(i)    Day work

Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.

(ii)    Shiftwork

Employees who would have worked on shiftwork had they not been on leave—a loading of 17.5% or the shift loading (including relevant weekend penalty rates) whichever is the greater but not both.

468    Thus, the Ombudsman must establish that, for each employee in relation to whom there is said to have been a contravention:

    he or she was an employee covered by cl 29.3 of the Clerks Modern Award;

    he or she took a period of annual leave; and

    he or she was not paid the requisite loading.

469    The Ombudsman alleged that the following administrative employees took periods of annual leave for which they were entitled to be paid and for which a loading was payable but was not paid: Aisling Dunn, Moona Hasan, Christine Meager, Jainil Modi, Lara Satchell and Md Shamsuzzoha.

470    I am not satisfied that the allegation is made out in relation to any of these six employees.

471    To support her case in relation to Christine Meager, the Ombudsman relied on Ms Meager’s evidence at para 44 of her affidavit and on the Hurrell calculations. The Hurrell calculations are useless. Paragraph 44 of Ms Meager’s affidavit is irrelevant. It is concerned with superannuation. At para 42, however, she stated in unequivocal terms: “I never took annual leave during my period of employment. That is the end of the story.

472    The two paragraphs of Aisling Dunn’s affidavit to which the Ombudsman referred suffer from a similar flaw. Both refer only to accrued annual leave at the time of termination. Nowhere in her affidavit does Ms Dunn mention taking any period of annual leave. The only other evidence to which the Ombudsman referred was the Hurrell calculations, which again take the matter no further.

473    In the case of Moona Hasan, the Ombudsman referred to the unenlightening Hurrell calculations and to para 134 of Ms Hasan’s affidavit. That paragraph reads: “I did not receive any payment for notice of termination, payment of accrued annual leave, payment in lieu of notice of termination or annual leave loading on termination”. It says nothing about the payment of a loading with respect to periods of annual leave taken. Indeed, nowhere in her affidavit did Ms Hasan say that she took a period of annual leave.

474    Similarly, in Lara Satchell’s case, the Ombudsman again pinpointed a paragraph that discusses only accrued annual leave upon termination. Nowhere in her affidavit did Ms Satchell say that she took any annual leave. The only other evidence the Ombudsman referred to was the Hurrell calculations, which are irrelevant to the question at hand.

475    I have already mentioned the evidence that Jainil Modi took a period of leave. In order to show that he was not paid the requisite loading, the Ombudsman again invited the Court to draw inferences from the failure by GPS and National Contractors to produce records and from the untitled document that Ms Millington said she was given by Mr Modi in the course of her investigation. For the reasons already given, the former is insufficient to support an inference that Mr Modi was not paid annual leave loading and the latter has no weight.

476    In the case of Md Shamsuzzoha, the Ombudsman pointed to paras 49–65 of his affidavit, which detail his attempts to recover outstanding wages after the termination of his employment. Nowhere does he state that he took any period of annual leave. The only other evidence to which the Ombudsman referred was the Hurrell calculations.

12    Failure to give written agreements on patterns of work to part-time cleaners

477    Clause 12.4(a) of the Cleaning Services Award relevantly states:

At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

478    A part-time employee is defined in para (b) of cl 12.4 to mean an employee who:

(i)    is engaged to work less than the full-time hours of 38 per week;

(ii)    has reasonably predictable hours of work; and

(iii)    receives, in addition to the hourly rate for a full-time employee, an allowance of 15% of the hourly rate. This allowance allows the employer to roster a part-time employee to work up to 7.6 hours per day, five days per week or 38 ordinary hours per week without the payment of overtime.

479    Plainly, only the first two paragraphs are part of the definition. The third prescribes an entitlement. Were it otherwise, an employer could avoid an employee being designated as part-time simply by failing to pay the employee the 15% allowance.

480    The Ombudsman alleges that written agreements on patterns of work were not given to 23 part-time employees. They were: Alfonso Alcuitas, Paul Bacon, Wendy Bong, Mariana De Queiroz, Barry Dowling, Fawaz El Rahman, Marissa Hall, Alyson Hellyer, Freddy Herrera, Fiona Holland, Bibek Luitel, Robin Malla, Tammy May, Kian Mu, Helen Pakas, Jose Pena, Barbara Piper, Anna Plows, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin and Tashi Wangchuck.

481    I find that the Ombudsman has proved the contravention in 21 cases (Alfonso Alcuitas, Paul Bacon, Mariana De Queiroz, Barry Dowling, Fawaz El Rahman, Marissa Hall, Alyson Hellyer, Freddy Herrera, Fiona Holland, Robin Malla, Tammy May, Kian Mu, Helen Pakas, Jose Pena, Barbara Piper, Anna Plows, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin and Tashi Wangchuck) but not in relation to Wendy Bong or Bibek Luitel.

482    Alfonso Alcuitas annexed to his affidavit a letter from RPEP offering him employment as a “permanent part time (Level 1) cleaner”. The pay slips annexed to his affidavit generally show payments with respect to around 60 hours per fortnight and no pay slips show more than 67 hours per fortnight. I accept, therefore, that he was a part-time employee. He said that he never received any written agreement specifying the hours or days he was to work. Accordingly, the contravention is proved in his case.

483    Paul Bacon said that his hours “continually changed depending on the work [Rosario and Enrico] asked [him] to perform that particular day”, but it appears from his evidence that his hours remained “reasonably predictable”. At the peak of his workload, in June 2009, he worked a total of about seven hours per week across three different locations. I accept that he was a part-time worker. I also accept his evidence that he was never provided with a written agreement specifying the hours or the days he was to work each week. Accordingly, the contravention is proved in relation to him.

484    Wendy Bong said that he was engaged to work in “a permanent part-time position”. But he worked from 1.00pm until 10.00pm with a one hour break, from Monday to Saturday. Working eight hours per day, six days per week, would have meant that he worked a total of 48 hours per week, well outside the range of part-time work. The Ombudsman has therefore failed to prove the contravention in his case.

485    Mariana De Queiroz said that she worked three to four hours a night, seven nights a week. She was therefore a part-time employee. She said she was not provided with anything in writing specifying her hours and days of work. Accordingly, the contravention is proved in her case.

486    Barry Dowling’s evidence was to the effect that he accepted an offer of a “permanent part time cleaning position” with GPS. The offer was made by one Jenna Soondur. He said that he worked seven evenings a week, for about three hours per evening. In recounting the circumstances in which he came to be employed, he made no mention of any written agreement regarding his hours of work. He said:

I did not have a paper roster. I generally worked the hours that were explained to me in my initial meeting with Jenna. Towards the end of my employment with GPS, I occasionally altered these hours, to work at times which were more convenient for me, but I confirmed the hours with David before doing so.

487    Jenna is presumably Jenna Sondur. I gather that David was the Facility Manager at his place of work — David Eve.

488    I infer from Mr Dowling’s evidence that his hours and days of work were agreed orally and that the agreement was not reduced to writing. Accordingly, the contravention is proved in this case.

489    Fawaz El Rahman annexed to his affidavit a letter from Reggio offering him employment as a “permanent part time (Level 1) cleaner”. He said that he regularly worked a total of 15 hours per week for the first two weeks of his employment, later increasing to 36 hours per week. At all times, then, he was a part-time employee. He said he was never given a written agreement setting out his hours or days of work. Consequently, the contravention is proved in his case, too.

490    Marissa Hall worked a total of three hours per day, five days per week. She was therefore a part-time employee. She said she was not given a written agreement setting out her hours of work. The contravention is therefore proved in her case as well.

491    Alyson Hellyer did not swear an affidavit. The evidence the Ombudsman “pinpointed” in respect of this contravention consisted of the transcript of an interview between Ms Hellyer and Ms Millington, on which her counsel had disavowed reliance, Ms Hellyer’s Praxeo records, and some 46 pages of “documents and records” Ms Millington received from Ms Hellyer during the course of Ms Millington’s investigation. The documents include a letter of offer of employment from Reggio to Ms Hellyer, dated 12 March 2012, stating that Ms Hellyer would be a “permanent part time” cleaner. Ms Hellyer’s part-time status is confirmed by the Praxeo records, which record her regularly working between 3 and 5 hours, seven days a week. I am satisfied on the basis of this material that Ms Hellyer was a part-time employee.

492    In relation to the written agreement, the Ombudsman pointed to the failure by GPS or National Contractors to produce any written agreement on patterns of work (or, for that matter, any document which could answer that description) in response to notices to produce which included a requirement to produce:

[c]omplete and legible, copies of records and documents evidencing the terms and conditions of employment ... including but not limited to contracts of employment, letter of offer, statements of appointment or otherwise named documents … .

493    From the failure of either company to produce such a document and the absence of any evidence to suggest that one had been created but had been destroyed or could not be found, I conclude that no written agreement was ever made. The contravention is proved in her case.

494    Freddy Herrera began working for GPS two nights per week, five hours a night. In about early October 2010 he started working seven days per week, but still only five hours per shift. Later his hours were reduced slightly. At all times then, he was a part-time employee. He said that he was never given anything in writing setting out his hours or days of work. Consequently, I am satisfied that the contravention is proved in his case.

495    Fiona Holland worked 21 hours per fortnight, though for some periods of her employment this doubled when another cleaner was unavailable. At all times her hours were reasonably predictable and were invariably less than 38 hours per week. She was therefore a part-time employee. She said that she never received anything in writing specifying her days and hours of work, other than a letter of offer that simply stated she would work 21 hours per fortnight. I therefore find the contravention proved in her case.

496    Bibek Luitel said that his hours of work varied and that his supervisor from GPS, Tom, would call him up each day to tell him whether he would be working that night. His hours were not, therefore, “reasonably predictable”. It follows that he was not a part-time worker and that the contravention is not proved in his case.

497    Robin Malla usually worked three hours per day, three days per week. In December 2012 he asked for more work and began working an additional two hours per day, seven days per week. Even then he would have worked only 23 hours per week and he was therefore a part-time worker. He said he was never given a written agreement detailing his hours and days of work. Consequently, the contravention is made out in his case.

498    At all times Tammy May was a part-time employee. She worked three hours per day, seven days per week at the beginning of her employment. Later she worked an additional six hours on the weekends. Even then she worked only about 27 hours per week. She said she was not provided with anything in writing specifying her hours or days of work. Consequently, the contravention is proved in her case.

499    Kian Mu said that he was engaged by Jenna Soondur of GPS, who told him he would work five hours each weeknight, three hours each Saturday night and six hours each Sunday night (a total of 34 hours per week). At first he did in fact work those hours, but after about two months his hours increased when he was asked to work at a different site and he was working in excess of 38 hours per week. At least for the initial two month period, then, he was a part-time employee. He said that he never received anything in writing specifying his hours or days of work. Accordingly, the contravention is proved in his case.

500    Helen Pakas described a range of varying patterns of work for GPS and her evidence about when she worked was confusing. In several places in her affidavit she referred to the hours she worked at various locations, but not to the number of days per week she worked those hours. It is clear, however, that at least from May 2014 she was working only one shift, from 5.00am until 9.30am or 10.00am (no more than five hours). Again she does not say how many days per week she worked that shift, but even if she worked seven days per week, her hours of work in the week would not exceed 35. Consequently, I find that she was a part-time employee. She said she was not given any document setting out her hours or days of work. I am therefore satisfied that the contravention has been made out in her case.

501    Jose Pena said that Alfredo offered him a part-time position. He worked about three to four hours each week day until February 2013, when he started working similar hours first on Saturdays and then on Sundays as well. He was therefore a part-time employee. He said that he “was not ever provided with a written roster or any other document that stated the hours, dates and places [he] had to work for GPS”. It follows that the contravention is proved in his case.

502    Barbara Piper worked six days per week. She generally worked a total of 2.5 hours on week days and one hour on Sundays. She was therefore a part-time worker. She said that she was not given any written statement of her hours or days of work. Consequently, the contravention is proved in her case, too.

503    Anna Plows’ evidence is that she worked seven days per week, about 4.5 hours per day. She was therefore a part-time employee. She said that she never received any document setting out her hours or days of work. Accordingly, the contravention is made out in her case as well.

504    Thomas Sung Hong said that he was offered a “permanent part-time” position by a man from GPS who introduced himself as Mike. He said he worked two hours each week day evening and about five hours each weekend evening. He was therefore a part-time employee. He said that he was not given a roster or any other document setting out the hours or days that he was required to work. Accordingly, the contravention is made out in his case.

505    Tui Tane said that she was engaged by either “Grant Luca” or “Maree” of GPS to work for three hours each day. She said that for the first week she worked about 3.5 hours a day, but after her first week, her hours increased when she went to work at an additional site. At least for the first week, she was a part-time employee, working 3.5 hours each day. She said that she was not provided with a document setting out her hours and days of work. Accordingly, I am satisfied that the contravention is proved in her case, too.

506    Xiao Teng said that she was engaged on a part-time basis and that she regularly worked five days a week. From when she started work on 17 September 2012 until October 2012, she worked only five hours per day, making her a part-time employee for that period. She said that she never received a written agreement specifying the hours she was to work each day. Accordingly, I find the contravention proved in this case as well.

507    Sekson Thinathin said that he worked 42 hours per fortnight. He was therefore a part-time employee. He said that he never received a written agreement specifying the hours and days he was to work. I therefore find the contravention proved in his case.

508    Tashi Wangchuck worked five days per week, three hours per day. Consequently, she was a part-time employee. She never received any document setting out her hours and days of work. The contravention is proved in her case, too.

509    It follows that GPS has contravened cl 12.4(a) of the award and s 45 of the FW Act in respect of 21 of the 23 employees.

13    Failure to pay a 15% allowance for part-time cleaners

510    The Ombudsman alleges that in the cases of the following 20 part-time cleaners GPS failed to pay the full 15% allowance, over and above the hourly wage that a full-time employee would receive, prescribed by cl 12.4(b)(iii) of the Cleaning Services Award (set out above at [478]): Paul Bacon, Juliana Botero Hernandez, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Khaga Kandel, Bibek Luitel, Tammy May, Giang Ngo, Helen Pakas, Barbara Piper, Anna Plows, Linda Robinson, Dianne Sjoberg, Cheryl Sorrell, Tui Tane, and Tashi Wangchuck.

511    The contravention is proved in the following 15 cases: Paul Bacon, Juliana Botero Hernandez, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Tammy May, Barbara Piper, Anna Plows, Dianne Sjoberg, Cheryl Sorrell, Tui Tane and Tashi Wangchuck.

512    It is not proved in the following five cases: Khaga Kandel, Bibek Luitel, Giang Ngo, Helen Pakas, and Linda Robinson.

513    I have already found that Mariana De Queiroz, Fawaz El Rahman, Tammy May, Barbara Piper and Anna Plows were part-time workers who were not paid at all for the final period of their employment. It follows that the contravention is proved in each of their cases.

514    Angela Bustos Alvarado, as I have said, did not provide an affidavit. The Ombudsman relied, without particularisation, on all the documents produced by National Contractors in relation to her, the transcripts of interview (upon which it later disclaimed any reliance), various “documents and records” Ms Millington received from Ms Bustos in the course of her investigation, and the Praxeo records.

515    Among this morass of material it is convenient to start with the Praxeo records, which span the period from 14 June to 24 December 2012. These reveal that Ms Bustos regularly worked around three hours per day, seven days per week. On the basis of this evidence I find that she was a part-time employee.

516    The next question is whether she was paid the 15% part-time allowance. Among the documents Ms Bustos provided to Ms Millington are a series of pay slips for pay periods from 11 June to 27 October 2012. These indicate that Ms Bustos was being paid $17.95 per hour, with the exception of the period 15–27 October 2012 where the pay slip records an hourly rate of $19.33. It is difficult to know what amount Ms Bustos was entitled to be paid under the award without knowing the duties she undertook, but the national minimum wage at the time, established by the National Minimum Wage Order 2012, was $15.96 per hour. With an additional 15% allowance Ms Bustos ought to have received, at a minimum, $18.35 per hour. It follows that (apart from the period 15–27 October 2012) Ms Bustos was not paid the 15% allowance for at least the period covered by the pay slips annexed to Ms Millington’s affidavit. The contravention is proved in her case.

517    I have already said that Paul Bacon was a part-time employee. When he started work in late January 2009, he said that he was paid $17.43 per hour. This increased to $17.95 per hour in March or April 2009 and continued at that rate until the end of his employment, which, as I have said, was in either December 2012 or January 2013. For the same I gave in relation to the case of Ms Bustos, I am persuaded that the Ombudsman has proved the contravention in this case.

518    In the case of Juliana Botero Hernandez the Ombudsman relied on the transcripts of interview and the documents and records Ms Botero produced to Ms Millington. I will ignore the transcripts, but among the documents is a Workplace Complaint Form Ms Botero submitted to the Ombudsman. It records that she worked from 9.00am until 10.30am and 11.00am until 2.00pm every week day during her employment. She was therefore a part-time worker. As I have said, she was not paid at all for her work for GPS. The contravention is proved in her case.

519    Marco Diaz said that he was engaged to work 4.5 hours week days, which he did consistently from 11 December 2012 until 5 April 2013. He said that he was told by Abraham Arguello that he would be paid $18 an hour at first, but that in March 2013 Mr Arguello told him that his pay would be reduced to $15 per hour. He also gave evidence that suggested he was not paid in full. The evidence is confusing and to an extent vague, but he was clear that he received only seven payments from National Contractors, totalling $3,645. There were 83 week days, and therefore 373.5 working hours, in the period from 11 December 2012 to 5 April 2013 (his evidence was that he worked the public holidays). It is apparent that Mr Diaz was underpaid and that his pay did not include the 15% allowance. Indeed, as he was treated as an independent contractor, it is inconceivable he would have been paid any allowances. Consequently, I find the contravention is proved in his case.

520    I have already found that Marissa Hall was a part-time employee who was not paid at all. The contravention is therefore proved in her case, too.

521    Similarly, I have already found that Freddy Herrera was a part-time employee. Exhibited to his affidavit are a number of pay slips spanning the period from 30 May 2011 to 11 November 2012. At no point is he recorded as being paid more than $17.95. For the same reasons I found that Ms Bustos was not paid the requisite loading, I find that from at least 1 July 2012 he was not paid the loading either. The contravention is proved in his case.

522    GPS paid Khaga Kandel a total of $840. He exhibited a number of invoices to his affidavit that he said set out his hours of work between 15 and 29 March 2013. In that period alone the invoices show that he worked 83 hours. That accords with his evidence that he was engaged to work 40 hours per week. He was not, therefore, a part-time employee.

523    Bibek Luitel, it will be recalled, was not a part-time employee either and so the contravention is not made out in his case. For the same reason, neither is it proved in Giang Ngo’s case.

524    Helen Pakass hours varied considerably over the course of her employment. I have found that she was a part-time employee from at least May 2014, but that does not assist the Ombudsman as there are no pay records in evidence from that period. The Praxeo records include one period, from 11 July to 30 September 2011, where she consistently worked 4–5 hours each week day. But there are no pay slips in evidence for this period either and Ms Pakas is silent in her affidavit about the amounts she was paid. The only other evidence referred to was the Hurrell calculations, which are of no assistance. Accordingly, the Ombudsman has failed to prove the contravention in this case.

525    Linda Robinson said that she was employed to work 38 hours per week until she had a conversation (in about February 2012) with a man named Bob Lloyd, who told her she should only work 25 hours per week. Timesheets exhibited to her affidavit, which she completed, show that both before and after her conversation with Mr Lloyd she was working hours that varied considerably, but were generally around eight hours per day, five days per week. She was not, then, engaged to work less than the full-time of 38 hours per week, nor were her hours reasonably predictable. It follows that she was not a part-time worker and the contravention is not made out in her case.

526    Dianne Sjoberg’s evidence was to the effect that she accepted an offer from Rosie Thomas on behalf of GPS for a position as a permanent part-time cleaner. During her employment, Ms Sjoberg added and omitted a number of shifts from her roster depending on the availability of the work but at most she never worked much in excess of about four hours per day. She was clearly a part-time worker. Ms Thomas told Ms Sjoberg that she would receive $17.95 per hour, which Ms Sjoberg said was the flat rate she was in fact paid, regardless of when she worked.

527    Ms Sjoberg was employed by GPS from about 17 January 2011 until 5 February 2012. Between 1 July 2010 and 30 June 2011, the minimum wage for a Level 1 cleaning service employee under the Cleaning Services Award was $16.03 per hour ($18.43 with the 15% allowance). Between 1 July 2011 and 30 June 2012 the rate increased to $16.57 per hour ($19.06 including the 15% allowance). Throughout her employment, then, Ms Sjoberg was not paid the full 15% allowance to which she was entitled as a part-time employee. The contravention is proved in her case.

528    Cheryl Sorrell said that she generally worked two hours per day, five days per week. The documents, produced in response to a notice to produce issued to Reggio and exhibited to Ms Millington’s affidavit, support her statement. The first is a tax file number declaration apparently signed by both Ms Sorrell and “James” of Reggio Investment Pty Ltd, which records the “basis” on which she is paid as “Part-time employment”. The second is a set of time records that show her working about two hours each day. She was therefore a part-time employee. The pay slips annexed to her affidavit, which span the period 14 March 2011 to 21 August 2011, record her receiving only $17.95 per hour. For the reasons given in relation to Ms Sjoberg, I find that Ms Sorrell, too, was not paid the 15% allowance to which she was entitled. Accordingly, the contravention is proved in her case.

529    I have already found that Tui Tane was a part-time employee for roughly the first week of her employment (beginning 18 November 2012), before being asked to work an extra shift. The pay slip covering 14–27 November 2011, produced by Reggio and exhibited to Ms Millington’s affidavit, shows that she was paid a flat rate of $17.95. For the same reasons discussed above in relation to Ms Sjoberg and others, the contravention is proved.

530    Tashi Wangchuck’s evidence was that she was employed for three hours a day Monday to Friday and alternate weekends. Her hours were regular, from 3.00pm to 6.00pm. On this basis I find that she was a part-time employee. Ms Wangchuck worked for GPS from 3−31 July 2012. She was told when she was hired that she would be paid $18.92 per hour. She was in fact paid for only two weeks and then only $17.95 per hour, according to the pay slip annexed to her affidavit. There is no suggestion that this or even the rate she was offered incorporated a 15% allowance. I am therefore satisfied that the contravention is proved in her case.

14    Failure to pay broken shift allowance

531    Clause 17.1 of the Cleaning Services Award required that an employee who worked a broken shift be paid an allowance of 0.458% of the standard rate per day up to a maximum of 2.29% of the standard rate per week. A broken shift is defined for the purposes of the award, in the same clause, as:

a shift where an employee works in two separate periods of duty on any day within a maximum spread of thirteen 13 (sic) hours and where the break between periods exceeds one hour.

532    The Ombudsman alleges that the applicable allowance was not paid to the following 11 employees: Alfonso Alcuitas, Angela Bustos Alvarado, Barry Dowling, Fawaz El Rahman, Kian Mu, Helen Pakas, Barbara Piper, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell and Xiao Teng.

533    The contravention is proved in the cases of Ms Bustos, Mr El Rahman, Ms Pakas, Ms Sjoberg, Ms Sorrell and Ms Teng. It is not proved in the other five cases.

534    The Ombudsman relied on Alfonso Alcuitass Praxeo records to show that he worked broken shifts. There are over 30 pages of these records but they appear to be entirely consistent with the evidence he gave in his affidavit: that he worked four hours or more each night, seven nights a week. At the beginning of his employment he would start work at about 9.00pm and finish between midnight and 3.00am. Later he began to start earlier, beginning work after 5.00pm and finishing after 9.00pm. It does not appear that this pattern varied at all and the Ombudsman did not point to a particular occasion on which Mr Alcuitas was said to have actually worked a broken shift. The Hurrell calculations only show one instance: Saturday, 23 July 2012. The grand total of the broken shift allowance to which Mr Alcuitas was said to be entitled is $2.88. On that day Mr Alcuitas started work at 6.14pm and finished work at 12.43am the next morning. His shift on 22 July had finished at 8.59pm. His shift on 24 July began at 6.14pm. Neither of these surrounding shifts was within 13 hours of his single shift on 23 July. It is therefore unclear on what basis the Ombudsman claims he worked a split shift. I am not satisfied that the Ombudsman has discharged her burden of proof in this instance.

535    The Ombudsman did not identify any particular occasion on which Angela Bustos Alvarado was said to have worked a split shift. She merely pointed, without particularisation, to a vast number of documents exhibited to Ms Millington’s affidavit. The Hurrell calculations assume that Ms Bustos worked split shifts on 21–23 and 26–30 September, 3, 17–21 and 24-28 October 2012, 15 and 27 November 2012, and 24 December 2012. But, with one exception, I have been unable to find a foundation for any of these assumptions.

536    The one exception is 24 December 2012. There, the Praxeo records show that Ms Bustos worked between 6.10am and 8.27am and then again between 7.34pm and 10.24pm. That is a broken shift and she was entitled to a broken shift allowance for the day. In the Workplace Complaint Form that Ms Bustos submitted to the Ombudsman, she complains that GPS never paid her for the last two weeks she worked in December 2012. Accordingly, I find the contravention proved in her case.

537    The Hurrell calculations suggest that Barry Dowling worked broken shifts on 20 and 23 October 2011 and 4 March 2012.

538    The 20 October 2011 suggestion is plainly wrong. The Praxeo records show Mr Dowling working a single shift from 11.27pm on 20 October until 2.27am on 21 October. There is also an entry for a shift of exactly one minute between 1.23am and 1.24am on 20 October. Even if Mr Dowling worked a full shift in the early hours of the morning of 20 October (his shifts were generally about three hours) he still would not have worked a broken shift as it would have finished more than 13 hours before the start of the next shift at 11.27pm.

539    The Praxeo entries for 23 October 2011 and 4 March 2012 are as follows:

 

Start Time

Finish Time

23/10/2011

1:21:13AM

23/10/2011

4:21:45AM

23/10/2011

11:29:32PM

24/10/2011

12:28:08AM

4/03/2012

1:20:22 AM

4/03/2012

4:19:38 AM

4/03/2012

10:56:02 PM

5/03/2012

1:54:36 AM

540    On each of these days there was a period of more than 13 hours between the two shifts. It follows that Mr Dowling did not work a broken shift.

541    The Praxeo records for Fawaz El Rahman show that on a number of occasions he worked two shifts in a day, within a 13 hour period but separated by an hour or more between each shift. He explains this in his affidavit by the fact that he worked at first two then four different sites each day. He therefore worked broken shifts on a number of occasions. Annexed to Ms Millington’s affidavit are a number of pay slips produced by Reggio in response to a notice to produce issued by the Ombudsman. It is sufficient for present purposes to refer to just one of these. It covers the period 30 July to 13 August 2011. It does not record any payment of a broken shift allowance and I infer that none was paid. According to the Praxeo records, Mr El Rahman worked broken shifts on at least the following days in that period:

 

Start Time

Finish Time

3/08/2011

10:51:34 AM

3/08/2011

12:25:40 PM

3/08/2011

1:29:06 PM

3/08/2011

3:08:15 PM

4/08/2011

12:24:04 PM

4/08/2011

2:00:08 PM

4/08/2011

3:16:03 PM

4/08/2011

4:34:21 PM

542    It follows that the contravention is established in Mr El Rahman’s case.

543    As in the other cases, the Ombudsman has not identified any particular occasion on which Kian Mu is alleged to have worked a broken shift. None of the paragraphs of his affidavit cited by the Ombudsman in support of her allegation includes any evidence to this effect. They simply refer to the time and wage records exhibits. The Hurrell calculations identify an underpayment of $2.88 in respect of a broken shift allowance on 2 December 2011. The shift times recorded by Praxeo on that day are as follows:

   

Start Time

Finish Time

2/12/2011

4:53:41 AM

2/12/2011

12:47:38 PM

2/12/2011

12:48:36 PM

2/12/2011

7:27:50 PM

544    That is a very long day of work but, as the break between the two shifts is less than an hour, it is not a broken shift within the meaning of the award. I am not satisfied that the Ombudsman has discharged her onus of proof in this case.

545    The effect of Helen Pakass evidence at paras 46, 59 and 60 of her affidavit is that at least from February until August 2009 she worked broken shifts: from 5.45am until 9.45am and from 6.00pm until 9.30pm. The pay slips for this period, exhibited to her affidavit, do not record any broken shift allowance and I infer that none was paid. The contravention is proved in her case.

546    In the Workplace Complaint Form that Barbara Piper submitted to the Ombudsman and annexed to her affidavit, she said that on 10 July 2012, her first day of work, she attended an induction from 9.00am to 12.30pm and then worked from 5.00pm to 8.00pm that evening. That was a broken shift. Throughout her employment Ms Piper received just one payment from GPS, of $400 on 3 August 2012. She said she was never provided with any pay slips. It is therefore impossible to know to what that $400 payment was referable. The onus was on the Ombudsman to prove that Ms Piper was not paid the broken shift allowance, and she has not produced sufficient evidence. While it is plain that Ms Piper was underpaid as a whole and that GPS failed to keep proper records in respect of her employment, this particular contravention is not proved in her case.

547    The Praxeo records for Baljinder Singh reveal that he worked two shifts in a day just once, on 9 August 2012. The shifts were from 12.20am until 2.53am and then 9.38pm until 12.12am the next morning. As the two shifts were separated by more than 13 hours, this was not a broken shift. The contravention is not proved in his case.

548    Dianne Sjoberg worked two shifts seven days a week: at a bowling alley from 7.00am to 8.00am and at a gym from 9.00pm to 10.00pm. On week days she also worked a third shift at a school, starting at around 5.00pm or 6.00pm. These are broken shifts. Her evidence is vague about the dates on which she worked these broken shifts, but the (admittedly patchy) Praxeo records disclose a number. On 29 January 2011, for example, they show Ms Sjoberg worked at the bowling alley from 6.08am until 7.26am and then the school from 4.41pm until 7.02pm. The pay slip for that period, produced by Reggio and exhibited to Ms Millington’s affidavit, records no broken shift allowance and I infer that none was paid. I therefore find the contravention proved in Ms Sjoberg’s case.

549    The Praxeo records reveal that Cheryl Sorrell worked a broken shift on 9 August 2011, being from 4.01pm to 6.08pm and from 10.00pm to 12.23am the following morning. She worked a broken shift with similar times two days later on 11 August. Her pay slip for the relevant period, produced by Reggio and exhibited to Ms Millington’s affidavit, records no broken shift allowance. I infer none was paid. The contravention is proved in her case.

550    Xiao Teng gave evidence which establishes that she worked broken shifts throughout her employment. As I have said, she was last paid on 5 November 2012. Yet she said that from 69 and 12–16 November she worked from 8.00am to 11.00am each morning and then worked another shift each afternoon, beginning between 4.00pm and 5.00pm. It follows that the contravention is proved in her case, too.

15    Failure to pay motor vehicle allowance

551    Before 1 July 2012, cl 17.4 of the Cleaning Services Award (since renumbered as cl 17.3) stated:

An employee who by agreement with the employer uses their own motor vehicle in the course of their work will be paid an allowance of $0.74 per kilometre travelled. Where a motor cycle is used the allowance will be $0.25 per kilometre travelled.

552    On 1 July 2012 the figure of $0.74 was increased to $0.75, where it remained until 30 June 2013.

553    The Ombudsman alleges that Anna Plows (who worked for GPS from 3 May 2012 until 31 January 2013) was entitled to such an allowance and that GPS failed to pay it. She relied on evidence given at paras 37, 48–50 and 93 of Ms Plows’ affidavit. The evidence supports the allegation that Ms Plows was not paid a motor vehicle allowance. It does not establish, however, that she was entitled to it. Ms Plows was required to work at two clubs, one in Bateau Bay and the other in Wyoming, both on the central coast of NSW. She lived in Long Jetty, a five minute drive away from the Bateau Bay club and a 35 minute drive from the Wyoming club. A print out from Google Maps exhibited to her affidavit records the distance between the two clubs as 19km and the estimated time to drive there 23 minutes. Ms Plows said that she understood that [she] would be paid for the time that [she] spent driving and the expenses that [she] incurred relating to use of [her] vehicle. But there was no evidence that she had an agreement with her employer to use her own vehicle. At para 49 she said:

I do not recall whether I spoke to anyone at GPS about how I should get from one place of work to the other. I saw the only way for me to get between the shifts was for me to drive. I understood that my supervisors were aware that I was driving between the Clubs.

554    Accordingly, this allegation is not proved.

16    Failure to pay travel time

555    Based on the same evidence the Ombudsman also alleges that GPS contravened cl 17.10 of the Cleaning Services Award. In this case I am satisfied that the evidence supports the allegation.

556    Clause 17.10 (later renumbered as 17.9) stated:

If an employee is required by the employer to travel from one place of work to another, all time so occupied by the employee will be deemed to be working time and will be paid for at the appropriate rate. All fares associated with such travel will be paid for by the employer.

557    Ms Plows was required to work at the two clubs and to travel from one to the other. Having regard to her evidence at para 93 of her affidavit, in which she said that she was not paid for travel time, I am satisfied that she was not paid for the time occupied in travelling between the two places. Consequently, I find that GPS has contravened cl 17.10 of the Cleaning Services Award and s 45 of the FW Act by not paying Ms Plows for the time occupied in travelling between the two clubs at which she was required to work.

17    Failure to pay on a weekly or fortnightly basis

18    Failure to pay employees kept waiting

558    Wages to employees covered by the Cleaning Services Award must be paid either weekly or fortnightly and no later than Thursday in each pay week: cl 20.1.

559    Subclauses 20.2 to 20.3 are in the following terms:

20.2    The employer may elect to pay wages either in cash or by electronic funds transfer (EFT) into an account nominated by the employee with a bank or other financial institution. Provided that the employer and an employee may agree that wages be paid in cash.

20.3     Where a cash payment occurs or the employer fails to transfer wages by EFT, an employee left waiting will be paid at ordinary rates until such time as the wages are paid.

560    These clauses are poorly drafted but I take them to mean that an employer contravenes cl 20.3 if it fails to pay an employee an additional amount, calculated at the employee’s ordinary rates, in respect of any period where the employee is kept waiting for the payment of his or her wages. It provides a financial incentive for an employer to pay an employees wages on time in accordance with cl 20.1.

561    It follows logically that an employer will contravene cl 20.3 where it fails to pay an employee in full, because the employee will be left waiting” for the wages to which he or she is entitled.

562    The Ombudsman alleges that GPS contravened cl 20.1 and cl 20.3 in respect of the following 29 employees: Alfonso Alcuitas, Paul Bacon, Wendy Bong, Mariana De Queiroz, Marco Diaz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Andrea Grigoletto, Marissa Hall, Freddy Herrera, Fiona Holland, Khaga Kandel, Bibek Luitel, Robin Malla, Charles Mascarenhas, Tammy May, Kian Mu, Giang Ngo, Helen Pakas, Barbara Piper, Anna Plows, Linda Robinson, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck and Wen Yang.

563    The contraventions are proved in each case.

564    Both contraventions are proved in relation to Wendy Bong, Marissa Hall, Giang Ngo and Wen Yang, to whom GPS failed to pay any wages at all.

565    Both contraventions are also proved in relation to Alfonso Alcuitas, Mariana De Queiroz, Fawaz El Rahman, Fiona Holland, Bibek Luitel, Tammy May, Barbara Piper, Anna Plows, Sekson Thinathin and Tashi Wangchuck. All these employees received their last payment from GPS before their periods of employment ended and so were unpaid for their final periods of work.

566    Similarly, Linda Robinson and Tui Tane stated that they were never paid all the wages that they were owed. Both contraventions are proved in their cases too.

567    Paul Bacon deposed that he was not paid at all between 19 August 2012 and 6 November 2012 and that he never received back pay in respect of the majority of this period. In the absence of any evidence to show that he has since been paid, both clauses were contravened in his case as well.

568    I have already found that Marco Diaz was underpaid. Consequently, I am satisfied that the contraventions are made out with respect to him.

569    Rangana Dissanayake said that he was not paid at all for the final period of his work, between 17 and 28 October 2011. Both contraventions are therefore proved in his case.

570    Barry Dowling stated that he frequently received his pay late and did not receive “back pay”. He described numerous attempts to recover what he believed was owed to him, in which he was effectively stonewalled. GPS rarely responded to his emails and when he attempted to call its payroll department his calls would either not be answered or returned, or he would be given excuses for the non-payment. At paras 112–114 he said this:

112.     In addition to contacting payroll, human resources and my supervisor, I also tried to speak with Alfredo. However, these conversations ended up in an altercation, and I threatened that I would not turn up for work given I was not being paid. I recall having a conversation with Alfredo, which included words to the following effect:

I said:     “Look, I haven’t been paid. I'm getting sick of this so I’m not going to work until you pay me.”

Alfredo said:     “No, you have to go to work.”

I said:    “You want me to go to work, then pay me now. I don’t even have money to buy petrol.”

113.     When I said this to Alfredo, he occasionally arranged an “emergency” transfer of money into my account. I then went into to work. I believe this happened on two occasions.

114.    I also tried to follow up with Ross, however he was generally very difficult to contact. On the rare occasion that I got through to Ross, he said words to the effect, “don’t worry buddy, we’ll work it out for you”. Occasionally, I was paid but other times, Ross told me to speak with a supervisor.

571    The effect of Mr Dowling’s evidence is that he was frequently paid late. Clause 20.1 is therefore contravened. His statement at para 114 is that he was only occasionally paid in response to his many requests, which means that on some occasions he was not paid. If he was not paid in response to his requests for back pay, the period in which he was “left waiting” is still running, so cl 20.3 was also contravened in his case.

572    Andrea Grigoletto said that his employment with GPS ended when he went to Perth in April 2013. He said that in Perth he had conversations with Rosario in which he asked when he would receive his pay and Rosario told him that he would “have to wait a bit longer for [his] pay”. After recounting those conversations, he concluded his affidavit thus:

35.    The last time I spoke to him he was very rude and said words to me to the following effect: “kiss my arse”.

36.     I tried to call Jay too but he didn't answer my call.

37.     On 6 May 2013 I received an email from Mr Pucci with the subject “Final Settlement”. I never signed the “Jay letter” referred to in that email. I don’t recall what was in that letter and have not been able to find it in my emails. I also never received the $775.44 although I was owed more than that. Now produced and shown to me and marked AG-9 is a true copy of the email from Mr Pucci and my response.

573    The email in AG-9 is from “Ross@gpfsm.com.au” to Mr Grigoletto and dated 6 May 2013. It reads as follows:

Andrea

Kristina is on leave until the 20/5/13. I would like to finalise the amount of $755.44. Please confirm your acceptance by signing Jay letter by this week.

Kristina has advised the deductions apply to your last statement.

Regards

Ross Pucci

574    Mr Grigoletto’s response reads:

Good afternoon Mr . Ross Pucci.

If your company wants to pay can do it, I still had to do months ago without the need for any more excuses and do not want to be laughed at again. There is no need other signatures, proper clearance and a bank deposit are signatures.

For my part, I did all regular things, And if you say that some things are not correct then we will discuss after the payment of MY honest work.

575    On 26 June 2010, when he submitted his complaint to the Ombudsman, he was still waiting for payment and I expect that he is still waiting.

576    I find that both contraventions are proved in his case.

577    Freddy Herrera said that he was paid fortnightly, but from August 2012 payment arrived late. From that point on he referred to a number of occasions on which he was not paid when his wages were due and to complaints he made about not being paid. Sometimes he said that he was paid after making his complaint; at other times he said that he was never paid. At the very least he was unpaid for the period between 4 January 2013, when he received his final payment from GPS, and 8 March 2013, when he said that his employment came to an end. It follows that both contraventions are proved in his case.

578    I have already found that Khaga Kandel was grossly underpaid for his work for GPS. Both contraventions are therefore proved in his case, too.

579    Robin Malla said that there were several occasions on which he was not paid fortnightly and that on some occasions he was not paid for several weeks after his wages were due. He said he was not paid any amount to compensate him for the time that he was left waiting to be paid. Consequently, both contraventions are proved in his case.

580    Charles Mascarenhas worked for GPS for about two months between 14 March 2013 and 11 May 2013. During that time he said that he recorded his hours of work on invoices, which are exhibited to his affidavit. Those invoices show that he worked for 217.4 hours. Mr Mascarenhas said that he received four payments from GPS. These are recorded on a bank statement annexed to his affidavit. They total $2,233.80. That represents an average hourly wage of just over $10. Mr Mascarehas said that he was told by Ms Voytenko that he would be paid $18 an hour. He was therefore underpaid for at least some periods of his work. It follows that both contraventions are established in his case.

581    Kian Mu’s evidence was that sometimes he was paid late or was not paid the full amount he was owed. He said that when he was not paid at all he would speak to Alfredo and if he did not hear back from Alfredo he would call payroll himself. At times this would result in the payment of “some money” but at other times his complaints were ignored. This indicates that there are some periods of work for which he was not paid at all. Both contraventions are proved in his case.

582    Helen Pakas said that she was “rarely paid on the Thursday or Friday of a pay cycle”. She said that “[i]t became normal” for her husband to contact the payroll department at least once each pay cycle to try to get assistance from someone at GPS so that she would be paid the correct amount, “if at all”. She annexed to her affidavit pay slips from throughout the period of her employment, none of which shows that she was paid for the time she was kept waiting. In this instance there is no reason why the pay slips should not be accepted on their face. I conclude that Ms Pakas was not paid for the time she was kept waiting. Accordingly, both contraventions are proved in her case, too.

583    Thomas Sung Hong said that he was paid late in respect of the period 23 January – 5 February 2012 and that he was underpaid in respect of the period 2–15 April 2012 (and therefore not paid all that he was entitled to be paid on time). He also said, with rather less specificity, that “between about late June 2012 and the end of 2012, [he] noticed from [his] bank statements that pay cycles were being skipped more frequently”. The effect of his evidence is that, far from being paid in respect of the time he was kept waiting for the amounts to which he was entitled, he was never paid those outstanding amounts. Accordingly, both contraventions are proved in his case.

584    Xiao Teng deposed, among other things, that she was not paid at all by GPS after 5 November 2012. Her last day of employment was 16 November 2012. It follows that she cannot have been paid in accordance with cll 20.1 and 20.3 and that the contraventions are proved in her case too.

19    Failure to pay superannuation in accordance with the cleaning services award

585    Clause 23.2 of the Cleaning Services Award states:

An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.

586    I have referred above to the legislation governing the operation of the superannuation guarantee charge.

587    It is an agreed fact that the true employer of the cleaning employees was required to make superannuation contributions to a superannuation fund for the benefit of those employees in accordance with cl 20.32. The true employer of the cleaning employees, as I have said, was GPS.

588    The Ombudsman alleged that GPS contravened cl 23.2 of the award by failing to make superannuation contributions “of any kind” to superannuation funds on behalf of certain cleaners. In the particulars to that allegation, the Ombudsman said:

No contributions were made to any superannuation fund in respect of several Cleaning Employees.

589    It was unnecessary to put the case as high as this. It would be a contravention of the award for GPS simply to make insufficient contributions. But that is the Ombudsman’s case. No alternative case was propounded.

590    The allegation was ultimately made in respect of 35 cleaning employees. They are: Alfonso Alcuitas, Jessica Alvarado Palma, Abraham Arguello, Paul Bacon, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Andrea Grigoletto, Alyson Hellyer, Freddy Herrera, Fiona Holland, Michael Kallee, Khaga Kandel, Bibek Luitel, Robin Malla, Charles Mascarenhas, Tammy May, Kian Mu, Helen Pakas, Jose Pena, Anna Plows, Tuula Rintala, Linda Robinson, Sumit Salhotra, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck and Robert Wilkey.

591    The contravention is proved in relation to the following 22 employees: Alfonso Alcuitas, Jessica Alvarado Palma, Paul Bacon, Marco Diaz, Barry Dowling, Andrea Grigoletto, Fiona Holland, Khaga Kandel, Bibek Luitel, Robin Malla, Charles Mascarenhas, Tammy May, Kian Mu, Helen Pakas, Jose Pena, Anna Plows, Linda Robinson, Thomas Sung Hong, Xiao Teng, Sekson Thinathin, Tashi Wangchuck and Robert Wilkey.

592    The contravention is not proved in relation to the remaining 13: Abraham Arguello, Angela Bustos Alvarado, Mariana De Queiroz, Rangana Dissanayake, Fawaz El Rahman, Alyson Hellyer, Freddy Herrera, Michael Kallee, Tuula Rintala, Sumit Salhotra, Dianne Sjoberg, Cheryl Sorrell and Tui Tane.

593    Alfonso Alcuitas and Paul Bacon said that they had made inquiries of the superannuation fund that they had nominated on their superannuation choice form when joining GPS, and that those inquiries revealed that no contributions had been made in respect of their employment by GPS.

594    Alfonso Alcuitas said that when he started working for GPS he signed a document nominating Australian Super as his preferred fund. Once Mr Alcuitas gave written notice to GPS that Australian Super was his fund of choice, GPS was required to make contributions to that fund: Administration Act, ss 32C, 32F. When Mr Alcuitas contacted Australian Super in about January 2013 to check his balance, he discovered that no superannuation had ever been paid into the fund although his payslips suggested otherwise. Annexed to his affidavit was a copy of his Australian Super transaction history for the period of his employment which contains no reference to GPS, National Contractors, or any apparently related company or business.

595    I find that no contributions were made to Mr Alcuitas’s chosen fund and, in the absence of any evidence that contributions were made to any other fund, I find that GPS made no superannuation contributions of any kind for Mr Alcuitas’s benefit. I therefore find that in his case GPS has contravened cl 23.2 of the award and s 45 of the Act.

596    When he started work for GPS, Paul Bacon nominated National Catholic Super as the fund into which he wished his superannuation payments to be made. On 1 December 2009 he sent a fax to the GPS account manager seeking confirmation that superannuation payments were being paid into a National Catholic Super account in his name. There is no evidence of any response to this fax. Sometime the following year Mr Bacon called National Catholic Super and was told that no superannuation had been paid into his account. Despite bringing the matter to the attention of Rosario, a follow up call to National Catholic Super (then known as “Catholic Super”) revealed that no superannuation had been paid on his behalf by any of the Pucci companies for at least three years. That was confirmed by Mr Bacon’s inquiry of the Australian Tax Office. There was no evidence that any superannuation contributions were made to a fund other than that chosen by Mr Bacon.

597    For these reasons I am satisfied that GPS also contravened cl 23.2 of the award and s 45 of the Act in Mr Bacon’s case.

598    Exhibited to Abraham Arguello’s affidavit is a letter from Sandeep Kanbar on behalf of GPS, dated 14 February 2012. In the letter, Mr Kanbar admitted that Mr Arguello was owed $5,323.50 in superannuation and said that GPS would make up that deficiency by paying $1,000 into Mr Arguello’s account every fortnight. Later, on 28 August 2012 Mr Arguello emailed Mr Kanbar again. He said: “you haven’t paid me any super contributions, even with the writing [promise] I got from you back in Feb”. To this, Mr Kanbar replied: “Regarding your super and holiday pay, I will talk to Ross tomorrow … Also, please note that I have paid small portion of your super before couple of months”. Mr Arguello’s reply to that email did not contradict Mr Kanbar’s assertion. Nor did anything else in Mr Arguello’s evidence. Indeed, to the contrary, Mr Arguello said that GPS had made paid at least two instalments into his superannuation account, totalling $2,200. Accordingly, while it is clear that GPS did not make all the superannuation contributions to which Mr Arguello was entitled, the Ombudsman has not proved that GPS failed to make superannuation contributions “of any kind” on his behalf.

599    Astonishingly, the Ombudsman pressed three contraventions (relating to Mariana De Queiroz, Rangana Dissanayake and Tui Tane), relying solely on evidence that the employees had no idea whether superannuation contributions were made for their benefit or not. The following is the relevant paragraph of Ms De Queiroz’s affidavit:

61.     I am unaware whether any superannuation was ever paid by GPS in relation to my employment. This was because I didnt think I would remain in Australia permanently and therefore wasnt very concerned about superannuation.

Tui Tane said this:

57.     I do not know if I have received payment for any superannuation.

600    Paragraphs 36 and 37 of Mr Dissanayake’s affidavit confess a similar state of ignorance. Needless to say, the contravention is proved in none of these cases.

601    Marco Diaz said that he did not have a superannuation account during his period of employment with GPS, so it follows that no contributions could have been made on his behalf. I therefore find the contravention proved in his case.

602    Barry Dowling said that during his employment he did not “receive any superannuation”. In apparent contradiction to this, a number of the pay slips in evidence indicate that superannuation was in fact paid on his behalf. Despite this, I accept Mr Dowling’s evidence. No suggestion was made by any of the respondents that Mr Dowling was lying or mistaken. He was not cross-examined and so it was never put to him that he was wrong. In these circumstances I give no weight to the reference to superannuation in the pay slips. The pay slips are not independent evidence, but records of a business that I have already found to be engaged in deceptive practices. No independent evidence, such as a document from Mr Dowling’s superannuation fund, capable of undermining his evidence was tendered. I find that the contravention is proved in his case.

603    Fawaz El Rahman’s employment ended on 19 December 2011. He said that in January 2012 he reviewed the balance of his superannuation fund and discovered that he had never been paid any superannuation by the company. Annexed to his affidavit is a pay slip for the period 16–29 November 2011. It indicates that a superannuation contribution was paid to “ANZ Superannuation Savings Account”. In the body of his affidavit Mr El Rahman said that he did not know of that superannuation account. As Mr El Rahman did not contradict the evidence provided by that pay slip, I am not persuaded that no superannuation payments of any kind were made to a fund for his benefit.

604    Andrea Grigoletto said:

While I was working for GPS I didn’t know what superannuation was. I do understand it now. I was never paid any superannuation

605    Mr Grigoletto was employed by GPS under the subterfuge that he was a contractor. He was told that to be paid he needed to submit invoices, for which “Jay, the GPS accountant” (presumably Jainil Modi) gave him a template. He annexed copies of these invoices to his affidavit and they include no allowance for superannuation.

606    I conclude that no contributions were made for Mr Grigoletto’s benefit. The contravention is proved in his case.

607    Freddy Herrera observed that, with one exception, his payslips showed that GPS was paying superannuation for his benefit but, to the best of [his] knowledge, GPS did not make any superannuation contributions on his behalf to a superannuation fund. I accept Mr Herrera’s evidence, as far as it goes. So far as he knew, no contributions were made. But the pay slips suggest that some contributions were in fact made. Perhaps he was unaware of them. Perhaps he made no inquiries. Perhaps he did not check his statements. He did not explain how far his knowledge went or upon what inquiries, if any, it was based. In his case, in these circumstances, I am not satisfied that GPS contravened cl 23.2 of the award and therefore s 45 of the Act.

608    Fiona Holland said that she was provided with a Choice of Superannuation Fund Form which she said she completed. Nevertheless, Ms Holland stated that she did not “receive” any superannuation during her employment although (with the exception of two dated 18 May 2012 and 7 June 2012) her payslips specified that superannuation contributions were being made on her behalf. The payslips record three payments being made in respect of superannuation totalling $212.06.

609    Ms Holland sets out the basis for her statement that she did not receive superannuation, despite what appears on the payslips, at para 63 of her affidavit:

On 22 August 2012, I received a letter from my superannuation fund, HOSTPLUS, stating (relevantly) as follows:

We are writing to advise you that your membership in HOSTPLUS ceased on 30/06/2012 due to insufficient funds in your superannuation account.

Annexed to this affidavit and marked FJH-6 is a copy of the letter from HOSTPLUS, dated 22 August 2012 (personal information redacted).

610    I infer that “my superannuation fund” was the fund she had nominated on her superannuation choice form.

611    The annexed letter supports Ms Holland’s statement. Indeed, it records that she had “a nil account balance”. The pay slips do not state to which fund the contributions were purportedly made (though they should have: Regulations, reg 3.46(5)), so there is no suggestion that, if they were made, they were made to a fund other than Ms Holland’s chosen fund. In these circumstances, and in view of the evidence in other cases which shows that, despite what appears on the face of the pay slips, no superannuation contributions were made, I place no weight on the pay slips in this case.

612    The contravention is proved.

613    Khaga Kandel said:

As far as I am aware, no superannuation contributions were made on my behalf in relation to my work for GPS. I do not recall ever giving details to GPS about my superannuation fund or discussing superannuation with anyone from GPS.

614    As Mr Kandel was treated as an independent contractor it is extremely unlikely that any superannuation contributions would have been made on his behalf.

615    In these circumstances I am satisfied that GPS contravened cl 23.2 of the award and thus s 45 of the Act in his case.

616    Bibek Luitels employment ended on 25 May 2012. He said that he “never provided GPS with details of a nominated superannuation fund” and that he “confirmed with the Australian Taxation [O]ffice over the phone at the end of June 2013 that no superannuation was ever paid by GPS in relation to [his] employment”. On the basis of this evidence, I find that GPS contravened cl 23.2 and that, consequently, GPS contravened s 45 of the Act in his case too.

617    Robin Malla said that he was “not paid any superannuation during [his] employment period. Some pay slips annexed to his affidavit record amounts paid by way of superannuation, but they do not specify to which fund they were paid. For the reasons given in relation to Mr Dowling, at [602], I prefer his evidence to that in the pay slips and I find the contravention proved in his case, too.

618    Charles Mascarenhas received no pay slips. On the question of superannuation he said only:

As far as I am aware I was not paid any superannuation for my work for GPS. Superannuation entitlements were never mentioned to me by anyone at GPS. I was never asked to provide, and never provided, details of my superannuation fund to GPS.

619    In circumstances in which he was never asked to provide details of his superannuation fund and in the absence of any evidence to suggest superannuation contributions were in fact made, this evidence is sufficient to make out a contravention of cl 23.2 of the award and therefore s 45 of the Act.

620    Tammy May said that “[d]uring [her] employment with GPS, [she] did not receive any superannuation payments, despite the majority of [her] payslips specifying that superannuation contributions were made on [her] behalf”. She said that she received a letter from her superannuation fund in or around 2011 that said no contributions had been made. The pay slips do not suggest that payments were made to any other fund, as they do not state the fund to which the contributions were purportedly made. In these circumstances I prefer the evidence of Ms May to that in the pay slips. The contravention is proved in her case.

621    Pay slips were issued to Kian Mu recording payments of superannuation. Nevertheless, Mr Mu denies “receiving” any such payments.

622    In answer to a notice of produce to Reggio issued on 4 April 2012 Mr Modi produced a number of documents. Those documents which were exhibited to Ms Millington’s affidavit included documents (described as an “Employment Pack” for Mr Mu), some of which Mr Mu said in his affidavit had been sent to his home after his job interview for him to fill out and return to GPS. Amongst those documents is a copy of the superannuation choice form which Mr Mu identified in his affidavit as one of those documents. The form records in handwriting (which I infer is Mr Mu’s) “Australian Superannuation Fund” as the chosen fund and a membership number and account name. In the same part of the form, for the “Employee to complete” there is a signature which, from a comparison of the signature on Mr Mu’s affidavit, appears to be his. Beside it, also in handwriting, is the date 20/09/2010. Although the document was produced by Reggio, all the parts the employer was required to complete are blank, including the acceptance and processing dates and the name of the fund to which the contributions would be made.

623    Mr Mu said that he “recently called Australian Super … who confirmed that no superannuation payments were made during the period [he] was employed by GPS”.

624    I therefore find that GPS did not make superannuation contributions for Mr Mu’s benefit to his chosen fund. There is no evidence that they were made to any other fund. One pay slip (dated 22 December 2011) states that the superannuation fund to which contributions were being made was “Australian Super” and the other pay slips state no fund at all. Having regard to Mr Mu’s uncontradicted evidence, more probably than not, despite what appears on the face of the payslips, no contributions were made.

625    I find that the contravention is proved in his case.

626    Helen Pakas said that no superannuation contributions were made on her behalf by GPS other than a payment of the superannuation guarantee charge. A payment of the superannuation guarantee charge is not a superannuation contribution complying with cl 23.2 of the award. Though some pay slips indicated that superannuation contributions were paid to her, for the reasons given at [602] I prefer her sworn evidence. I find that the contravention is proved in her case, too.

627    Jose Pena said that he never gave GPS details about his superannuation fund. He was hired by GPS on the false basis that he was a contractor, not an employee, and would therefore not be covered by the award. This raises a compelling inference that he was not paid any superannuation. In all these circumstances, I am satisfied that cl 23.2 of the award and so s 45 of the Act were contravened in his case.

628    Anna Plows said that “no superannuation contributions were made on [her] behalf by GPS”. She said she noticed that superannuation payments were included in her pay slips. Those pay slips are exhibited to her affidavit. Some record superannuation contributions, some do not. Those that do contain no record of the fund to which the contributions were purportedly made. I prefer Ms Plows’ evidence. I find that cl 23.2 of the award and s 45 of the Act were contravened in her case.

629    Linda Robinson said that she “never received superannuation for [her] period of employment”. Three pay slips exhibited to her affidavit show that amounts were contributed to “ANZ Superannuation Savings Account” in December 2012. But for the reasons given at [602] I prefer her sworn evidence to that in the pay slips. I am satisfied that there has been a contravention of cl 23.2 of the award and s 45 of the Act in this case.

630    Dianne Sjoberg’s pay slips refer to superannuation payments. From time to time she received a statement from her superannuation fund, which did not show any contributions from GPS “or anyone on behalf of GPS”. What she meant by “anyone on behalf of GPS” is unclear. She said that “[t]o the best of [her] belief, no superannuation contributions were made to a superannuation fund for [her] benefit from the income that [she] made during the course of [her] employment with GPS”. Like Mr Herrera, she did not say how far her belief went or what inquiries she had made. She said that she nominated a superannuation fund at the commencement of her employment with GPS but did not remember what fund she had nominated. It is possible that contributions were being made to the superannuation fund that Ms Sjoberg chose, but that she was unaware of that fact because she did not remember what fund that was.

631    The evidence in this case is too vague to enable me to be satisfied that superannuation contributions were not made, as required, to Ms Sjoberg’s chosen fund.

632    Cheryl Sorrell did not say anything about whether or not superannuation contributions were made on her behalf. The only evidence on the question is her pay slips, which suggest that at least on some occasions the contributions were made. Without more, the Ombudsman has failed to prove that no contributions were made in her case.

633    When Thomas Sung Hong accepted GPS’s offer of employment in January 2010 he said he was not given any document relating to superannuation and was “not familiar with the process”. He was assured that a superannuation account would be established for him but three years after he started work for the company he was still asking about his superannuation. When he pressed Rosario and Enrico on the matter, asking: “Where is my superannuation going? I need my pay”, he was instantly dismissed and forcibly removed from the office.

634    Mr Hong noticed statements on some payslips he was issued suggesting superannuation had been paid and referring to “ANZ Superannuation Savings Account”. He said that in about May 2013 he went into an ANZ branch and obtained a document containing his superannuation details, including a membership number. It seems that he did have an ANZ superannuation account, which he said he checked “almost daily” but that he did not see the balance change throughout the period of his employment. He then contacted the ATO and was told that it had no records of him having been paid superannuation. When he confronted Rosario, demanding to know where his superannuation was, Rosario told him: “I never paid you superannuation”.

635    The contravention is proved in his case.

636    At the beginning of her employment Xiao Teng completed the choice of superannuation fund form, nominating Hostplus as her fund of choice. She said, however, that to the best of her knowledge no superannuation was ever paid into a fund on her behalf. In this case there are no pay slips to contradict her statement. She said that she never received any and there is no reason to doubt what she said. I find the contravention proved in her case.

637    The Ombudsman relied on para 27 of Sekson Thinathin’s affidavit, which said:

I do not recall anyone from GPS speaking to me about superannuation at any stage. I have not received a superannuation statement so to the best of my knowledge I did not receive superannuation from GPS.

638    On the other hand, payslips for Mr Thinathin were in evidence (exhibited to Ms Millington’s affidavit) which suggest that superannuation contributions were made to an ANZ Superannuation Savings Account. Mr Thinathin said nothing about such an account. Still, he was given a choice of superannuation fund form to complete. There is no evidence to indicate that he completed it. He did not say that he did and the documents produced by Reggio to the Ombudsman do not include it. While in theory a failure to receive a superannuation statement may only signify that none was sent, as Mr Thinathin was employed for nearly 11 months I think it more likely that he did not receive a statement because there was no account.

639    I conclude that superannuation contributions were not paid on Mr Thinathin’s behalf despite what appears on the face of the pay slips.

640    In Tashi Wangchuck’s case, the Ombudsman relied on two paragraphs of her affidavit:

31.    I have never received any superannuation.

32.     The one pay slip I received didn’t even mention superannuation.

641    The pay slip in question is annexed to Ms Wangchuck’s affidavit. It is issued by Reggio, it is for the period “8/07/0201 (sic)” to “8/07/2012”, and it indicates that Ms Wangchuck was paid $323.10. It says nothing about any superannuation. I accept Ms Wangchuck’s evidence. The contravention is proved in her case.

642    Robert Wilkey said that no contributions were made on his behalf by GPS, although his pay slips suggested otherwise. He said that he called a tax file inquiries telephone number that he found on the internet and asked the (unnamed) person on the other end of the line to check if any contributions had been made to a superannuation fund in relation to his tax file number or whether there were records of superannuation contributions from GPS or Reggio. He was told there were none.

643    On the basis of this evidence, I accept that no contributions were made on Mr Wilkey’s behalf, despite what his pay slips suggest. Accordingly, I find the contravention proved in his case.

644    Amongst the relevant cohort of employees are six who did not provide affidavits. They are Angela Bustos Alvarado, Alyson Hellyer, Michael Kallee, Jessica Alvarado Palma, Tuula Rintala and Sumit Salhotra.

645    In the cases of Jessica Alvarado Palma and Tuula Rintala the Ombudsman relied solely on the failure of GPS and National Contractors to produce records “evidencing superannuation liabilities or payment of superannuation” in answer to the notices to produce served on both companies on 13 January 2014. The particular paragraphs that were said to be relevant were paras 3 and 6 which read:

3    Complete and legible copies of documents and records evidencing annual tax returns, annual reports, statements as to profit and loss, balance sheets, and documents detailing the liabilities of National Contractors Pty Ltd for the financial years ending 30 June 2013.

6        Complete and legible copies of all records and documents that evidence all payments made to the Employees listed at Annexure A including but not limited to payslips, pay advice, statements, cheques, bank statements or otherwise described documents for the period 1 August 2012 to present.

646    It is difficult to see why superannuation records relating to particular employees would answer the description in para 3. Notwithstanding the fact that superannuation payments are not paid to employees directly, however, I accept that the requirement to produce the records referred to in para 6 would be wide enough to encompass superannuation contributions made to employees’ superannuation funds. Neither Ms Alvarado’s nor Ms Rintala’s name appears in Annexure A. Ms Alvarado’s, however, appears in Annexure B to the notices. Paragraph 11 of the notices states:

11    Complete and legible copies of all records and documents that evidence all payments made to the individuals listed in Annexure B including but not limited to payslips, pay advice, statements, cheques, bank statements, tax invoices, receipts, statements or otherwise described documents for the entire period of their engagement for the period 1 July 2012 to present.

647    No documents were produced by GPS. National Contractors produced only a “Sub-Contractor Expression of Interest” form for Ms Alvarado. Though GPS failed to keep proper employee records, it is inconceivable that if superannuation was paid neither respondent had even a bank statement showing that contributions had been made. In these circumstances I conclude that no superannuation contributions were made in respect of Ms Alvarado and so the contravention is proved.

648    In Ms Rintala’s case a notice was issued to Rosario on 31 May 2012 required Reggio to produce certain records and documents. The only paragraph that is apparently relevant is para 2:

Complete and legible copies of records and documents evidencing pay slips showing hours worked, penalties, gross and net wages superannuation fund and any deductions made for the entire employment period of Tuula Rintala.

649    Pay slips were produced and they appear to be all that was sought here. Those pay slips record superannuation payments. In the absence of any other evidence, I am unable to conclude that there has been a contravention in Ms Rintala’s case.

650    In respect of Angela Bustos Alvarado and Sumit Salhotra, the Ombudsman again relied on the alleged failure by GPS or National Contractors to produce records “evidencing superannuation liabilities or payment of superannuation”. She conceded that pay slips produced in respect of both these employees listed superannuation payments but submitted that this should not be accepted as proof of that fact as the evidence establishes that GPS had a practice of listing superannuation payments but not actually making the payments into a superannuation fund.

651    This submission is problematic. The only evidence the Ombudsman propounded, to support the existence of the practice, is that of the four cleaners who deposed that they had received pay slips recording superannuation contributions but that no contributions were actually made (Alcuitas, Dowling, El Rahman and Plows). While I accept that the pay slips are unreliable, the sample is too small a base from which to conclude that there was a universal or even consistent practice of recording superannuation contributions where none were made. For this reason, I am not satisfied that no superannuation contributions were made in these two instances. Consequently, I am unable to find that GPS contravened cl 23.2 of the award and therefore s 45 of the Act in relation to these two employees.

652    In both Alyson Hellyer’s and Michael Kallee’s cases pay slips were in evidence recording superannuation contributions. There was no evidence to the contrary. The contravention is not proved in either case.

20    Failure to pay part-time workers for minimum engagement period

653    Clause 24.2(b) of the Cleaning Services Award required an employer to roster part-time and casual employees for minimum engagement periods set out in paras (c)–(f) and, in default, to pay the employees as if they had worked the minimum period. The minimum engagement periods were:

(c)    Where only one employee is engaged at a small stand alone location with a total cleaning area (as defined) of 300 square metres or less, and where it is not practicable for a longer shift to be worked across two or more locations, the minimum engagement will be for one hour.

(d)    Where employees are engaged at a location with a total cleaning area (as defined) of up to 2000 square metres the minimum engagement will be for two hours.

(e)    Where employees are engaged at a location with a total cleaning area (as defined) of between 2000 and 5000 square metres the minimum engagement will be for three hours.

(f)    Where employees are engaged at a location with a total cleaning area (as defined) of more than 5000 square metres the minimum engagement will be for four hours.

654    The Ombudsman alleged that GPS failed to engage the following 10 employees for the minimum engagement period: Alfonso Alcuitas, Fawaz El Rahman, Robin Malla, Tammy May, Helen Pakas, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell, Tui Tane and Sekson Thinathin.

655    To support the allegation, the Ombudsman relied on time and wage records. None of this evidence included any material referring to the total cleaning areas where the employees were engaged to work. I was not directed to any evidence that touched upon this central question. Accordingly, I am not satisfied that this contravention has been made out.

21    Requiring cleaners to work ordinary hours on more than five days per week

656    The Ombudsman alleged that the employer contravened para 24.2(a) of the Cleaning Services Award. That paragraph states:

(a)    Subject to the clause 24.3 (sic), the ordinary hours of work will be worked in periods of not more than 7.6 hours per day, on not more than five days Monday to Sunday inclusive.

657    This provision applies to part-time and casual employees, but there is an equivalent provision relating to full time employees in cl 24.1.

658    Clause 24.3 deals with the effect of breaks on ordinary hours of work. It is in the following terms:

24.3 Effect of breaks on ordinary hours of work

(a)    The paid meal break provided for in clause 26.1, is included in the 7.6 hours per day for full-time employees and also counts as time worked for part-time and casual employees.

(b)    The unpaid meal break provided in clause 26.2, is not included in the 7.6 hours per day for full-time employees and does not count as time worked for part-time and casual employees.

(c)    The paid tea breaks in clauses 26.1 and 26.2, are included in the 7.6 hours per day for full-time employees, and also count as time worked for part-time and casual employees.

659    The Ombudsman submitted that GPS required at least the following employees to work ordinary hours on more than five days a week: Alfonso Alcuitas, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Freddy Herrera, Bibek Luitel, Tammy May, Kian Mu, Jose Pena, Linda Robinson, Thomas Sung Hong and Sekson Thinathin.

660    In all but one case, the evidence supports the submission.

661    Alfonso Alcuitas, who worked from about late June 2011 until 17 September 2012 at a gym in Melbourne, said that he worked seven nights a week every week he was with the company except when the gym closed for holidays over Christmas and Easter.

662    Rangana Dissanayake said that he was paid for four hours each night, seven days a week. The inescapable inference is that he worked seven days a week, and this is confirmed by the time records exhibited to Ms Millington’s affidavit.

663    Barry Dowling’s evidence was that he worked seven days a week.

664    Fawaz El Rahman said that, although on two weekends in late August 2011 he worked only on both days of the weekend, from then on (until 19 December 2011 when he last worked for GPS) he worked seven days a week. Once again, the Praxeo records exhibited to Ms Millington’s affidavit confirm this.

665    Freddy Herrera said that when he started work with GPS (on 8 September 2010) he was required to work only two nights a week, but from the following month until he left on 8 March 2013, he worked seven days a week.

666    Tammy May, who began working for GPS at around the end of August 2010 and finished on 22 January 2013, said that she worked seven days a week throughout her employment.

667    Kian Mu’s time records, exhibited to his affidavit, demonstrate that he, too, worked seven days per week. The summary of his time recordings exhibited to Ms Millington’s affidavit confirm this.

668    Jose Pena’s evidence was to the effect that, while he started off working five days a week, between 11 February 2013 and 9 March 2013 he worked from Monday to Saturday and from 24 February 2013 to 7 March 2013 from Monday to Sunday.

669    Linda Robinson testified that she was working more than what would be required of a full time employee although she was apparently employed for a notional 25 hours a week. Time sheets exhibited to her affidavit indicate that she worked seven days per week.

670    Thomas Sung Hongs evidence was that he worked seven days a week, but that on week days he normally worked from about 11.00pm to 1.00am, although as the gym where he worked closed at 10.00pm he sometimes started earlier. On weekends he said that he worked from about 10.00pm to 3.00am. His Praxeo records produced to Ms Millington show that he did, indeed, work seven days per week. Accordingly, I find that GPS required him to work more than five days per week.

671    The Praxeo summaries for Sekson Thinathin show that he too worked seven days per week.

672    The exception is Bibek Luitel, who said that he usually worked five nights a week. I was not taken to any evidence to indicate that he was ever required to work more than five days.

673    Even so, I am not satisfied that there was a contravention of the award because an employee worked more than five days a week.

674    The Ombudsman’s case is based on a misinterpretation of cl 24.2. Clause 24.2 must be read in context. The context includes the provisions for overtime in cl 28. Clause 28.1 states that an employer may require an employee to work reasonable overtime at overtime rates, although an employee may refuse to do so in certain circumstances set out in that clause. Clause 28.6 provides:

All time worked in excess of 7.6 hours per day, five days per week or 38 hours in any week by a part-time employee is overtime.

675    Clause 24.2 simply defines the concept of ordinary hours of work, in contradistinction to overtime hours for which provision is made elsewhere in the award. The clause does not prohibit an employer requiring an employee to work beyond ordinary hours. It would be nonsense to say that the award, and therefore s 45 of the Fair Work Act, is contravened each time an employee is made to work overtime.

676    It is entirely possible, if not probable, that some or all of the employees in question were not paid overtime rates for hours worked in excess of ordinary hours. But the fact that they worked in excess of ordinary hours is not, without more or of itself, a breach of the award.

22    Failure to pay the applicable allowances for early morning, afternoon and non-permanent night shift

677    This allegation involves some 28 cleaners. They are: Alfonso Alcuitas, Jessica Alvarado Palma, Wendy Bong, Angela Bustos Alvarado, Mariana De Queiroz, Fawaz El Rahman, Andrea Grigoletto, Alyson Hellyer, Fiona Holland, Michael Kallee, Bibek Luitel, Robin Malla, Charles Mascarenhas, Tammy May, Kian Mu, Helen Pakas, Jose Pena, Barbara Piper, Anna Plows, Tuula Rintala, Sumit Salhotra, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin and Wen Yang.

678    Paragraph (a) of cl 27.1 of the Cleaning Services Award reads as follows:

All early morning, afternoon and non-permanent night shiftworkers will be paid an additional 15% of the ordinary hourly rate for the appropriate classification for all shiftwork. For the purposes of this clause shiftwork will mean any shift Monday to Friday starting before 6.00 am or any shift finishing after 6.00 pm. Employees will receive the shiftwork hourly rates of pay for the entire shift (other than overtime).

679    Nothing in para (a) explains what a night shift is (as distinct from an early morning or afternoon shift) and what makes a night shift permanent. But these concepts are elucidated by para (b), which reads:

If a night shift, being a period of duty finishing after midnight and at or before 8.00 am, does not rotate or alternate with another shift or day work, then a permanent night shift loading of 30% of the ordinary hourly rate for the appropriate classification will be paid for all hours worked. Provided that where a part-time employee is in receipt of this loading they will not also be entitled to be paid the 15% allowance provided for in clause 12.4(b)(iii).

680    The elements of this alleged contravention, then, are that:

(1)    the employee in question worked a shift between Monday to Friday which started before 6.00am or which finished after 6.00pm;

(2)    if the shift finished after midnight and at or before 8.00am (and so was a night shift), it rotated or alternated with another shift or day work (and so was non-permanent); and

(3)    the employee was not paid an additional 15% of the ordinary hourly rate for the appropriate classification.

681    I find the contravention proved in each case except those of Jessica Alvarado Palma, Angela Bustos Alvarado, Alyson Hellyer, Charles Mascarenhas, Tammy May and Tui Tane.

682    In relation to Jessica Alvarado Palma, the Ombudsman pointed to over 60 pages of material exhibited to Ms Millington’s affidavit. None of this, except for the transcript of interview upon which she expressly disavowed reliance, provides any indication of the hours Ms Alvarado worked. Almost all of it is of no conceivable relevance to this contravention.

683    Alfonso Alcuitas commenced employment on about 28 January 2011. At least one of the pay slips annexed to his affidavit (for the period 15–29 June 2011) shows that he was paid a flat rate of $17.95 per hour. Between 1 July 2010 and 30 June 2011, the minimum hourly rate for the lowest cleaning classification in the Cleaning Modern Award was $16.03 or $18.43 with a 15% loading. He was therefore not paid a 15% loading. His Praxeo records indicate that on at least Tuesday 28 and Wednesday 29 June 2011 he worked shifts starting after 9.00pm. His night shifts during that period alternated with afternoon shifts from around 5.00pm until around 9.30pm. His night shifts were therefore non-permanent. The contravention is proved in his case.

684    Exhibited to Ms Millington’s affidavit are a number of payslips for Angela Bustos Alvarado, apparently produced to Ms Millington by Reggio. These generally record payments of $17.95 with no allowance for shiftwork. The pay slips span 25 June – 27 October 2012, which period is covered by the Praxeo records. During that period, the minimum hourly wage for a Level 1 cleaner under the award was first $16.57 and then $17.05 (on and after 1 July 2012). She was not, therefore, paid the 15% allowance. According to her Praxeo records, however, she finished every shift she worked between midnight and 8.00am. She was therefore a permanent night-shift worker. It is clause 27.1(b), not cl 27.1(a), that was contravened in her case.

685    Wendy Bong said that he worked from 1.00pm to 10.00pm on each shift and he was not paid at all. His shifts included week days. The contravention is proved in his case.

686    The Praxeo records indicate that Mariana De Queiroz worked a number of shifts classed as “shiftwork”. For example, during the period 9–22 July 2012, she worked shifts that started at 3.00am or earlier on ten days, including week days. On Monday 16 July she also worked one shift starting at 10.42pm. Her pay slip for this period, annexed to her affidavit, shows no allowance above her usual rate of $17.95. Yet, the minimum wage under the award after 1 July 2012 was $17.05 per hour. The minimum hourly rate with a 15% loading would be $19.61. The contravention is proved in her case.

687    Fawaz El Rahman said that he was paid a flat rate of $17.95 per hour. His Praxeo records indicate that he occasionally worked shifts classified as shiftwork, including on Friday 26 August 2011 (starting at 11.29pm) and Wednesday 31 August 2011 (starting at 1.40am). The contravention is proved in his case.

688    Andrea Grigoletto worked for GPS in 2013. He said that he ordinarily began week day shifts at around 6.30pm and usually finished around 10.30pm or 11.00pm. He was required to submit invoices to get paid. His invoices show a request for payment at a flat rate of $18 per hour. I infer that he was not paid anything over and above that amount; indeed, his evidence is that he had great difficulty being paid even for what he invoiced. The contravention is proved in his case.

689    Alyson Hellyer, as I will explain below, worked a permanent night shift. She was not, therefore, covered by cl 27.1(a).

690    Fiona Holland said that she worked until 10.00pm Monday – Thursday and until 11.00pm on Fridays. She said that in all but one pay period her pay was calculated at a flat rate of $17.95 per hour. The contravention is proved in her case.

691    Michael Kallee’s Praxeo records span the period from 27 February to 25 May 2012. They show him working most week days during that period, those shifts extending in all but two instances until after 6.00pm but before midnight. Reggio produced five pay slips to the Ombudsman, spanning the period 20 February to 13 May 2012. All of these show Mr Kallee receiving a flat rate of $17.95 per hour with no additional allowance. The contravention is proved in his case.

692    Bibek Luitel received only one pay slip, from Reggio, for the period 30 April to 13 May 2012. It records payment at a flat rate of $17.95 with no extra allowance. Mr Luitel said that he usually worked five nights per week and on the nights he worked he started his shifts between about 10.30pm and 11.00pm. The contravention is proved in his case.

693    Robin Malla worked on week days until after 6.00pm but before midnight. Throughout his entire employment period he was paid a flat rate of $17.95 per hour. The contravention is proved in his case.

694    Charles Mascarenhas said that he received payment for no more than the wages he specified on his invoices, which were at a rate of $18 per hour. He said that he usually worked five days per week and from about 6.30pm until “around midnight. That phrase suggests that at times he may have finished before midnight and at times after. But it is too vague to enable me to be satisfied that his shift ever finished after midnight. Consequently, the Ombudsman has not proved the contravention in this case.

695    Tammy May worked seven days a week. She began her employment working from 4.00am until 7.00am for at least one year from August 2010, after which this changed to 3.00am – 7.30am or 8.00am. But the shifts do not rotate or alternate with another shift or with day work, so she worked a permanent night shift. A contravention of cl 27.1(b), but not cl 27.1(a), could be proved in her case.

696    After November 2010, Kian Mu worked alternating shifts from 5.00am to 12.30pm and from 12.00pm to 7.30pm. Yet, throughout his employment at GPS he was paid at the flat rate of $17.95. The contravention is proved in his case.

697    Praxeo records for Helen Pakas show her working shifts beginning before 6.00am and finishing between 9.00am and 10.00am on almost every week day in the period between 1 July 2011 and 22 April 2013. The payslips exhibited to Ms Pakas’s affidavit include, relevantly, ones spanning the period 17 April to 1 October 2012. None of these records discloses any extra allowance in respect of shiftwork. The hourly rate of pay is generally recorded as $15.60, though one pay slipfor 6 to 19 August 2012shows it as $16.85 and another as low as $15.40. None of these rates is enough to include both Ms Pakas’s minimum award rate and a 15% allowance. The contravention is proved in this case.

698    Jose Pena’s affidavit set out his hours of work for the period 15 October 2012 to 7 March 2013. For that entire period he worked on week days, doing shifts that finished after 6.00pm and before midnight. He never received pay slips and I was not taken to any other evidence recording his hourly rate. It is, however, unlikely that he was ever paid a shift allowance. Although he said that he did not sign it, the contract he was given to sign recorded his pay rate as $17.50 per hour. Regardless, he was not paid at all for the last two weeks of his employment, so for at least this period the contravention is made out in his case.

699    Barbara Piper worked six days per week, between 5.00pm and 7.30pm. She said that she was paid only once, in an amount of $400, six days before she finished work with GPS. It follows that the contravention is proved at least in respect of that last period of her work.

700    The Praxeo records for Anna Plows cover the period 30 May 2012 to 4 February 2013. They show her working shifts starting after 6.00pm on week days throughout that period. The shifts sometimes finished before midnight and sometimes after. The pay slips annexed to Ms Plows’ affidavit begin before 30 May 2012 and extend until 9 December 2012. None of them records any allowance in respect of shiftwork. The base rate of pay recorded varies. It rises as high as $18.85, which is still insufficient to include the base rate of pay under the award (after 1 July 2012 the minimum rate of pay for a Level 1 cleaner under the award was $17.05) and a 15% shiftwork allowance. The contravention is proved in her case.

701    The Praxeo records for Tuula Rintala span the period 10 February to 5 April 2012. They show that she worked almost every day in that period and began her shift some time before 5.00am. Some shifts finished before 8.00am and others finished after. Pay slips for the period 6 February to 18 March 2012 produced by Reggio to the Ombudsman and exhibited to Ms Millington’s affidavit record a base rate of pay of $17.95 with no allowance. The contravention is proved in her case.

702    The Praxeo records for Sumit Salhotra cover the period from 12 June 2011 until 21 May 2012. Throughout this period the shifts are scattered across both week days and weekends. Almost all end after 6.00pm and before midnight. The pay slips produced by Reggio span from 25 July 2011 to 15 April 2012. None records any allowance for shiftwork. At the most they record an hourly rate of $17.95. At the least (28 November – 11 December 2011) they show an hourly rate of $9.75. The contravention is proved in her case.

703    In her affidavit Dianne Sjoberg described working two, two-hour evening shifts on week days, at one location from 5.00pm or 6.00pm and then at another from 9.00pm or 10.00pm. She was paid a flat rate of $17.95 for any time that she worked. The contravention is proved in her case.

704    Cheryl Sorrell said that she worked the 5.00pm – 7.00pm week day shift with Ms Sjoberg. On some occasions she also worked the 9.00pm shift. Pay slips in her name for 26 fortnightly pay periods from 29 January 2011 until 5 February 2012, produced to the Ombudsman and exhibited to Ms Millington’s affidavit, show a uniform rate of $17.95 per hour. The contravention is proved in her case.

705    Thomas Sung Hong’s affidavit exhibited pay slips spanning the period 29 April 2011 to 6 January 2013. They show a flat hourly rate, generally speaking, of $17.95. There is no record of him ever having received a shift allowance. His Praxeo records show that at least from 1 July 2011 until the first week of May 2012 he worked shifts beginning after 6.00pm and generally ending before midnight. The contravention is proved in his case.

706    Tui Tane’s Praxeo records cover the period from 20 December 2011 until 5 February 2012. Every shift recorded there began before 6.00am and finished before 8.00am. She therefore worked a permanent night-shift. Exhibited to Ms Tane’s affidavit are two payslips, covering the period 26 December 2011 to 22 January 2012. In that period Ms Tane worked week days on 27, 28, 29 and 30 December and 3, 4, 10, 11, 12, 16, 17, 18 and 19 January. Both pay slips show a flat rate of $17.95 and neither records any allowance for shiftwork. GPS therefore contravened cl 27.1(b) of the award but not cl 27.1(a).

707    Xiao Teng worked from 17 September until 16 November 2012. She said she worked in a school, for five hours each week day afternoon after school finished. It follows that her shifts extended past 6.00pm, a fact that is borne out by her Praxeo records, which also show that she finished work before midnight on every occasion. There are no payslips for this employee. Ms Teng said that she never received one. The only evidence about non-payment is her statement that she was not paid at all after 5 November. I find that from that time until the end of her employment she was not paid the shiftwork allowance. The contravention is proved in her case.

708    Sekson Thinathin’s Praxeo records (spanning the period from 17 January to 2 December 2011) show that almost all of his shifts began after 6.00pm. Generally they finished after midnight, but for the first two weeks at least his pattern of work alternated between shifts finishing before midnight and shifts finishing after. The shifts fall on all seven days of the week. Mr Thinathin’s evidence is that throughout his employment he was paid a flat rate of $17.95 per hour. The contravention is proved in respect of the period 17–31 January 2011.

709    Wen Yang worked for four weeks and was not paid at all. He said his hours were set out in an email sent on his behalf to Ms Millington, which is annexed to his affidavit. The email shows that he worked until after 6.00pm on the following week days: 1, 2, 5–9 and 12–16 November 2012. The contravention is proved in his case.

23    Failure to pay the applicable penalty rate for permanent night shift

710    The Ombudsman alleges that GPS contravened cl 27.1(b) in the following cases: Rangana Dissanayake, Barry Dowling, Alyson Hellyer, Freddy Herrera, Baljinder Singh, Thomas Sung Hong and Robert Wilkey.

711    I find the contravention proved in each case except Mr Singh.

712    Baljinder Singhs Praxeo records shows that he regularly worked about three hours a day and as such I am satisfied that he was a part-time worker. The records also indicate that he worked many night shifts, but those night shifts were generally interspersed with shifts that finished before midnight. Accordingly, I am not satisfied that Mr Singh was ever employed on permanent night shifts.

713    Rangana Dissanayake, it will be recalled, worked seven nights per week. He annexed to his affidavit 10 payslips for periods between 16 May and 16 October 2011. All record a wage of $17.95 per hour; none records any additional allowance.

714    According to his Praxeo records, Barry Dowling worked every night between 27 June and 31 August 2011. Every one of those shifts finished between midnight and 8.00am. His pay slips for that period, exhibited to his affidavit, record a base rate of $17.95 per hour with no allowance.

715    The Praxeo records for Alyson Hellyer show her finishing work between midnight and 8.00am every night between 14 May and 30 August 2012, except on 29 May, 27 June, 7 August, and 22 and 23 August. These four, isolated exceptions do amount to an “alteration” or “rotation” of her night shifts; they appear to be odd occasions on which she finished work slightly earlier than usual (on one occasion, at 11.54pm). Throughout the period she worked a permanent night shift. Her pay slips for this period are exhibited to Ms Millington’s affidavit. They record only a base rate of $17.95 with no allowances for the entire period.

716    Sixteen pay slips were exhibited to Freddy Herrera’s affidavit, covering, with some gaps, the period 30 May 2011 – 11 November 2012. Taking just one period, the two pay slips covering 13 June10 July 2011 show that Mr Herrera was paid $17.95 per hour with no allowances, but the Praxeo records indicate that he worked a shift finishing between midnight and 8.00am almost every night in that period. The exceptions are 26 June (where he worked from 3.35am until 8.15am), 5 July (4.08am to 8.34am) and 7–9 July when he did not work. I am satisfied that at least in that period Mr Herrera was on permanent night shift and he was not paid the allowance to which he was entitled.

717    Thomas Sung Hong’s Praxeo records only start on 1 July 2011, but they continue for 45 pages well into 2013. He worked many late shifts, but he was not on permanent night shift for all of this period. Be that as it may, he worked night shifts exclusively from at least 16 May until 11 June 2012, and then from 14 June until 17 October 2012.

718    Robert Wilkey’s Praxeo records cover the period from 27 March until 2 August 2012. From 29 March onwards they show every shift in that period finishing between midnight and 8.00am. Despite that, he said that he was paid a flat rate of $17.95 per hour regardless of when he worked and the pay slips annexed to his affidavit support what he said. None of them records the payment of any allowance.

24    Failure to pay cleaners the applicable penalty rate for time worked between midnight Friday and midnight Saturday

25    Failure to pay cleaners the applicable penalty rate for time worked between midnight Saturday and midnight Sunday

719    It is convenient to deal with these allegations together. They relate to non-payment of weekend penalty rates. Contravention 24 concerns penalty rates for working on a Saturday; contravention 25 penalty rates for working on a Sunday.

720    Clause 27.2 of the Cleaning Services Award provides:

27.2    Weekend penalties

(a)    Saturday work

For all hours worked between midnight Friday and midnight Saturday an employee will be paid time and one half of the ordinary hourly rate for their classification.

(b)    Sunday work

For all hours worked between midnight Saturday and midnight Sunday, an employee will be paid double the ordinary hourly rate for their classification.

721    From 1 July 2010 until 30 June 2011, the hourly rate of pay for the lowest classification under the Cleaning Services Award was $16.03. It rose each financial year thereafter. Accordingly, if any of these cleaners was paid less than $24.05 per hour for a Saturday or $32.06 for a Sunday at any time during the Audit Period, there was a contravention of cl 27.2.

722    The Ombudsman alleges that GPS failed to pay the applicable penalty rate to five cleaners who worked between midnight Friday and midnight Saturday. They are: Andrea Grigoletto, Freddy Herrera, Charles Mascarenhas, Thomas Sung Hong and Tui Tane.

723    I am satisfied that in all but one of these cases (Andrea Grigoletto) penalty rates were payable but were not paid. It follows that in all bar Mr Grigoletto’s case, GPS contravened cl 27.2(a) of the award and, for this reason, s 45 of the Act.

724    Andrea Grigoletto said that sometimes he worked Sundays. He said that he may have worked a Saturday every now and then but he did not recall. Consequently, there can be no contravention of cl 27.29(a).

725    Freddy Herrera worked seven days per week from about early October 2010 until March 2013. He said that during that time he was paid only at a rate of $17.95 per hour. His pay slips do not show otherwise.

726    Charles Mascarenhas said that his hours of work were recorded in the “invoices” he issued to GPS and which are exhibited to his affidavit. An invoice dated 31 March 2013 shows that he invoiced GPS for Saturday 23 March 2013 at his usual rate of $18 per hour. He said that he received two payments in respect of that invoice, which totalled about $10 less than the amount claimed. I infer that the amount he was paid in respect of the invoice was the only amount he was paid in respect of that period of work.

727    Thomas Sung Hong worked almost every day of the period covered by his Praxeo records: from 1 July 2011 to 21 April 2013. Forty-four pay slips were exhibited to his affidavit, spanning the period 29 April 2011 to 6 January 2013. As I have already observed, they invariably record only a rate of no more than $17.95.

728    According to her Praxeo records, Tui Tane worked weekends on 24, 25 and 31 December 2011, 14, 15, 21, 22, 28 and 29 January 2012 and 4–5 February 2012. As I have said, her payslips, for the period 26 December 2011 – 22 January 2012, show only a flat rate of $17.95.

729    The Ombudsman further alleges that GPS failed to pay the applicable rate to five employees who worked between midnight Saturday and midnight Sunday: Michael Kallee, Khaga Kandel, Giang Ngo, Helen Pakas and Barbara Piper. In each case the allegation is made out.

730    Michael Kallee’s Praxeo records indicate that he worked one Sunday: 18 March 2012. A pay slip covering that date was produced by Reggio to the Ombudsman and exhibited to Ms Millington’s affidavit. It records a base rate of pay of $17.95 with no allowance for any penalty rate.

731    Khaga Kandel is another purported contractor. Exhibited to his affidavit is an “invoice” showing two hours’ work on Sunday 24 March 2013, for which he requests $40. The compelling inference is that he was paid no more than the $40 invoiced.

732    Giang Ngo said that he worked on Sunday 24 February 2013 and that he never received any payment for his work from GPS.

733    Exhibited to Helen Pakass affidavit are what she identifies as “a bundle of time sheets” for the period from 18 July until 28 August 2011. The timesheets show that she worked Sundays on 24 and 31 July and also 7, 14, 21 and 28 August 2011. I accept that she worked those hours. She said and I accept that she was not paid any different rate for doing weekend shifts after 12 June 2009. The rates she was paid after that time never exceeded $19.

734    Barbara Piper said that she worked one hour on Sundays during her employment. She was employed by GPS from 10 July until 8 August 2012. There were four Sundays in that period. She said that she received only one payment, of $400 on 3 August 2012. It follows that she was not paid at all for her work on Sunday 5 April 2012 and that she was not paid the applicable penalty rate.

735    Accordingly, I find that in each of these cases GPS contravened cl 27.2(b) and therefore also s 45 of the Act.

736    In addition, the Ombudsman alleged that cl 27.2(a) and (b) were both contravened in relation to the following 19 employees: Alfonso Alcuitas, Angela Bustos Alvarado, Mariana De Queiroz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Alyson Hellyer, Fiona Holland, Robin Malla, Tammy May, Kian Mu, Anna Plows, Tuula Rintala, Linda Robinson, Sumit Salhotra, Baljinder Singh, Sekson Thinathin, Robert Wilkey and Wen Yang.

737    The allegation is proved in all except one of these cases. Consequently, I find that GPS contravened cl 27.2 and s 45 of the Act in each case.

738    Alfonso Alcuitas said that he worked seven nights a week (and therefore both the Saturdays and Sundays) from about 28 June 2011 until 17 September 2012. He said that he was paid a flat rate of $17.95 per hour, except in respect of the last two fortnights of his work, for which he was not paid at all.

739    The pay slips for Angela Bustos Alvarado that are exhibited to Ms Millington’s affidavit cover only the periods 11 June – 19 August, 3–16 September and 15–27 October 2012, but within those periods the Praxeo summaries indicate that she worked seven days per week on 10 occasions. The pay slips indicate that she received a varying rate of pay — most often $17.95 per hour but occasionally $19.33 per hour (far less than 1.5 times the minimum wage the award stipulated).

740    Mariana De Queiroz worked for GPS from 7 February until 2 October 2012. Her Praxeo summary indicates that she worked on the weekends 28–29 April and 5–6 May 2012. Annexed to her affidavit are pay slips indicating that she was paid only her base hourly rate ($17.95) for the pay periods including those two weekends.

741    Rangana Dissanayake worked seven days per week throughout his employment (from about 17 May to 28 October 2011) and was paid the same hourly rate of $17.95 regardless of whether he worked a week day or weekend.

742    Barry Dowling also worked seven days per week for the whole of his employment. Exhibited to his affidavit is a series of pay slips, covering, with some gaps, the period from 1 March 2010 to 6 January 2013. In almost that entire period, the pay slips indicate that he was only paid the same base rate of $17.95. In one period — 9–22 July 2012 — his base rate rises to $19.09. In two periods — 15–27 October and 10–23 December 2012 — it drops (alarmingly) to $7.33.

743    Fawaz El Rahman worked seven days a week between 27 August 2011 and 19 December 2011 and was similarly paid a flat rate of $17.95 per hour.

744    The summaries of the Praxeo records exhibited to Ms Millington’s affidavit show that Alyson Hellyer worked seven days a week between 14 May and 30 August 2012. The pay slips exhibited to Ms Millington’s affidavit indicate that she was paid only a flat rate of $17.95 per hour throughout this period.

745    Fiona Holland normally worked week days but on occasion would work on a Saturday instead, on condition that she did not receive any penalty rate. The contravention of cl 27.2(a) is proved in her case, but this would tend to indicate that she did not work on a Sunday and so there was no contravention of cl 27.2(b). The Praxeo records, however, also reveal that she worked Sundays on 10, 17 and 24 June, and 8 and 15 July 2012. Pay slips covering all these dates except 15 July were annexed to her affidavit. Two show a base rate of pay of $17.95 and one a rate of $18.40. None shows any additional penalty rate.

746    Robin Malla said that from December 2012 he usually worked seven days per week. He did not say when that period of work ended, or what he means by “usually”, but at an absolute minimum what he said indicates that there was at least one week in which he worked both a Saturday and a Sunday. His evidence was that he was always paid a flat rate of $17.95 per hour without ever receiving additional payments for work on weekends or for any other purposes.

747    Tammy May said that she worked seven days a week throughout her employment with GPS (from August 2010 to January 2013), although she said that she did not work all public holidays. The pay slips exhibited to her affidavit range from 15 August 2010 to 6 January 2013. They indicate that she was paid a flat hourly rate of $17.95, although in some periods the rate drops, occasionally as low as $9.49. None of the pay slips indicates that she was paid any extra money in respect of the Saturdays and Sundays she worked and I infer from this that none was paid.

748    Kian Mu generally worked seven days per week throughout his period of employment with GPS (from 9 September 2010 to 13 January 2012). He said that he was paid a flat rate of $17.95 during that time.

749    Anna Plowsaffidavit exhibited pay slips for the period 30 April 2012 to 9 December 2012. During that period her base hourly rate is seen to fluctuate between $17.95, $18.40, $18.85, and $18.88 and there is no record of any penalty rate for weekend work. Her Praxeo records show that she worked on numerous weekend days in that period, including 2, 9, 16 and 30 June 2012 (Saturdays) and 17 and 24 June 2012 (Sundays).

750    The Praxeo records for Tuula Rintala show that she worked both weekend days on 25 and 26 February and 10 and 11 March 2012, Saturday 17 March 2012, and Sunday 1 April 2012. A pay slip produced by Reggio, exhibited to Ms Millington’s affidavit, covers all of those dates except 1 April. It records a base hourly rate of $17.95 with no additional penalty rates.

751    The Praxeo records for Sumit Salhotra span almost a year, from 12 June 2011 to 21 May 2012. They show him working Saturdays and Sundays throughout the period. The pay slips for him, produced by Reggio to the Ombudsman and exhibited to Ms Millington’s affidavit, cover a slightly shorter period of 25 July 2011 to 15 April 2012. They show an hourly rate that occasionally dips below, but never exceeds, $17.95. There are gaps in the coverage of the pay slips, so it is necessary to give a particular example of a weekend worked without penalty rates. The Praxeo records show Mr Salhotra working on Sunday 31 July 2011 and Saturday 6 August 2011, yet the pay slip for the period 25 July to 7 August 2011 shows a rate of $17.95 and no penalty rate.

752    Baljinder Singh’s Praxeo records cover the period from 4–27 August 2012 and show him to have worked both days of every weekend. Also exhibited to Ms Millington’s affidavit is his Workplace Complaint Form. The effect of his complaint is that he was not paid at all for his work with GPS.

753    Sekson Thinathin worked almost every day in the period covered by both Ms Hurrell’s calculations and the Praxeo records (17 January 2011 – 2 December 2012), including almost every weekend day. He said that he was paid at a flat rate of $17.95 per hour for the duration of his employment.

754    Robert Wilkey’s Praxeo records reveal that he worked almost every day for the entirety of his employment. He said that he was paid a flat rate of $17.95.

755    As I have said, Wen Yang was not paid at all, but worked the hours out in the email sent by Xiao Teng to Ms Millington, annexed to his affidavit. It shows that he worked Saturday 3 November and Sunday 11 November 2012.

756    The exception is Linda Robinson. Ms Robinson recorded the time she worked on hardcopy timesheets, which were exhibited to her affidavit. They show that she worked seven days almost every week in the period from 5 December 2011 to 14 March 2012. The only evidence upon which the Ombudsman relied to show the amounts she was paid is a collection of five pay slips also exhibited to her affidavit. All of these simply show total amounts. None records for how many hours Ms Robinson was paid, or how much she was paid per hour. Nor is it possible to deduce this information, because there is no obvious relationship between the hours Ms Robinson says she worked (in her timesheets) and the amounts the pay slips suggest she was paid:

 

Period

Hours (timesheet)

Gross pay (payslip)

Average hourly rate

1–11 December 2011

81.75

$964.38

$11.79

12–25 December 2011

94

$1,230.77

$13.09

26 December 2011 – 8 January 2012

83.75

$1,423.08

$16.99

23 January – 5 February 2012

87.75

$1,583.33

$18.04

20 February – 4 March 2012

80

$1,583.33

$19.79

757    As such, though it is clear that Ms Robinson was underpaid for her work as a whole, and I strongly suspect she was not paid penalty rates, I am not reasonably satisfied that she was not.

26    Failure to pay cleaners the applicable penalty rate for work on a public holiday

758    Clause 27.3 of the Cleaning Services Award states:

For all hours worked on public holidays an employee will be paid double time and one half of the ordinary hourly rate for their classification.

759    Clause 32.1 provided that “Public Holidays are provided for in the NES”, which cl 3.1 of the award defines as the National Employment Standards contained in ss 59 to 131 of the FW Act. The definition of public holiday in s 115 of the FW Act is set out above, under the heading of contravention 4.

760    The Ombudsman alleges that the following 23 cleaners worked on public holidays but were not paid the rates prescribed by cl 27.3: Alfonso Alcuitas, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Barry Dowling, Fawaz El Rahman, Andrea Grigoletto, Alyson Hellyer, Freddy Herrera, Khaga Kandel, Charles Mascarenhas, Tammy May, Kian Mu, Helen Pakas, Jessica Alvarado Palma, Anna Plows, Linda Robinson, Baljinder Singh, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin and Robert Wilkey.

761    I find the contravention proved in the following cases.

762    The document I referred to above at [367] indicates that Jessica Alvarado Palma worked on Boxing Day 2012. I have already found that Ms Alvarado was not paid for her work between 10 December 2012 and 18 January 2013, save for one payment of $500.

763    Alfonso Alcuitas worked in Victoria. He said and I accept that he worked the following public holidays without any additional payment or penalty rates: 1 November 2011 (Melbourne Cup Day: see Public Holidays Act 1993 (Vic) s 6(j)), 26 December 2011 (Boxing Day), 27 December 2011 (substituted Christmas Day: s 6(k)), 26 January 2012 (Australia Day), 12 March 2012 (Labour Day: s 6(d)), 7 April 2012 (Easter Saturday: s 6(f)), 7 April 2012 (Easter Monday)” (by which I infer he meant April 2012), 25 April 2012 (Anzac Day) and 11 June 2012 (Queens Birthday: s 6(i)).

764    Mariana De Queiroz worked in Western Australia. She said that she worked on 6 April 2012 (Good Friday), 25 April 2012 (Anzac Day) and on 11 June 2012, which she identified as the Queen’s Birthday. The “Celebration Day for the Anniversary of the Birthday of the Reigning Sovereign” in 2012 was in fact on 1 October 2012: Public and Bank Holidays Act 1972 (WA) s 5, Sch 2; Government Gazette (WA) (No 229, 30 December 2008) p 5633 (except for certain parts of the State, in which it occurred on various other days not including 11 June: Government Gazette (WA) (No 85, 1 June 2012, pp 2279–80)). Ms De Queiroz said she did not receive any extra penalty rates for these public holidays, so at least in respect of Good Friday and Anzac Day the contravention is proved.

765    Marco Diaz said that he worked (in Brisbane) on “28 January 2013 … the Australia Day public holiday”. 28 January was, indeed, the Australia Day public holiday in 2013 as Australia Day fell on a Saturday: Holidays Act 1983 (Qld), s 2, Sch. Mr Diaz sent two invoices for that day and other periods, one being at a rate of $15 per hour and the other at a rate of $18 per hour. As Mr Diaz’s evidence, which I accept, was that he was paid according to the amounts in these invoices, it follows that he was not paid the applicable penalty work for working on the public holiday.

766    I have found that Barry Dowling worked seven days per week for the whole of his employment with GPS, which included the period 1 March 2010 – 6 January 2013. He said that he worked every public holiday in that period except Christmas Day, and that he was never paid extra for working public holidays. A random inspection of the pay slips corroborates his statement. For example, the records show him working on 6 and 8 April 2012 (Good Friday and Easter Sunday). His pay slip for that period indicates that he received only his base rate of $17.95 per hour with no additional allowances.

767    Fawaz El Rahman worked in Victoria. He said and I accept that he worked on 1 November 2011 (Melbourne Cup Day). He said that he was paid at a flat rate of $17.95 per hour.

768    Alyson Hellyer worked seven days a week between 14 May and 30 August 2012 for which she received no pay other than her base rate of $17.95 per hour. Ms Hellyer worked in New South Wales. The period of her employment includes the Queen’s birthday public holiday.

769    Freddy Herrera said that he worked all the public holidays in the two and a half years in which he was employed by GPS and that he was paid at his regular (flat) rate of $17.95 per hour for all his hours on those days.

770    The invoices that Khaga Kandel said he sent to GPS, which were exhibited to his affidavit, show that he worked on 29 March (Good Friday) and 1 April 2013 (Easter Monday). He invoiced GPS $20 per hour for that work. I infer that he was paid no more than that.

771    Charles Mascarenhas worked in New South Wales. He said that he worked Easter Monday and Anzac Day 2013. He also said that he worked 30 March 2013 (Easter Saturday: Public Holidays Act 2010 (NSW), s 4(d)). He said that he only ever received pay for the amounts he invoiced, which were his hours multiplied by $18.

772    I mentioned earlier that Tammy May worked some but not all the public holidays during her period of employment with GPS. In her affidavit she said she was not paid penalty rates for any of these days. I was not taken to any of her pay slips but a small sample (those covering Christmas Day 2011, New Year’s Day 2012 and 8 April 2012 (Easter Sunday)) suggest she received no more than $17.95 per hour.

773    Kian Mu worked in New South Wales. He said that he worked on 3 October 2011 (Labour Day: Public Holidays Act 2010 (NSW), s 4(i)), Christmas Day and Boxing Day 2011, and 2 January 2012 (the New Year’s Day additional public holiday: s 4(a)). He said that for his work on those days he was paid the same rate he was normally paid ($17.95).

774    Anna Plows worked in New South Wales. She said that she worked the following public holidays: 11 June 2012 (Queen’s Birthday), 1 October 2012 (Labour Day), Christmas Day and Boxing Day 2012, New Year’s Day 2013 and 28 January 2013 (the Australia Day public holiday: Public Holidays Act 2010 (NSW), s 4(b)). The pay slips exhibited to her and Ms Millington’s affidavits record that, on the periods including the Queen’s Birthday public holiday, Boxing Day and Christmas Day in 2012, and New Year’s Day in 2013, she was paid $17.95 per hour, with no penalty rate. Labour Day 2012 is more complicated: her pay slip records 20 hours of work paid at $18.85 per hour (from the surrounding pay slips, this appears to have been her usual pay in that period) and 2 hours of work at $37.70 per hour, marked “Public Holiday sos”. Her Praxeo records reveal that she worked 22.3 hours in that period, so the “Public Holiday sos” entry must be her entire wage for the 2.1 hours she worked on Labour Day, not an additional allowance. The then minimum rate of pay for the lowest classification in the award was $17.05, which makes $42.63 at double time and a half. There is no pay slip in evidence for the period including Australia Day 2013 but Ms Plows complained to Rosario in late January of that year, which on a fair reading of her evidence is likely to be sometime between 28 and 31 January, that she had not been paid, amongst other things, for working on public holidays. He did not deny it. His response was to dismiss her instantly.

775    Linda Robinson worked in New South Wales. She said that she worked on Boxing Day 2011, 27 December 2011 (additional Christmas Day public holiday: Public Holidays Act 2010 (NSW), s 4(j)), 2 January 2012 (additional New Year’s Day public holiday: s 4(a)), and 26 January 2012 (Australia Day). Yet she said that she received no additional amount or penalty rate for her work on any of these days.

776    Baljinder Singh gave his address on his Workplace Complaint Form as Nundah, a northern suburb of Brisbane. His Praxeo records show that he worked on 15 August 2012, which was the Royal Queensland Show public holiday in the Brisbane area. The effect of the complaint he made to the Ombudsman is that he was not paid at all.

777    Thomas Sung Hong worked in New South Wales. His Praxeo records show that he worked on 7 and 8 April 2012 (Easter Saturday and Easter Sunday) and 30 March 2013 (Easter Saturday). The pay slip for the period covering 7–8 April 2012 records that he received a base rate of “$12.865” and no penalty rate for working the public holidays. There is no pay slip covering Easter Saturday 2013 and the Ombudsman did not point to any other evidence to show how much he was paid for that day. The contravention is proved with respect to the 2012 dates only.

778    Tui Tane said that she worked on Christmas Day and Boxing Day 2011, and 26 January 2012 (Australia Day) but did not receive any additional payment.

779    Sekson Thinathin worked in New South Wales. His Praxeo records reveal that he worked on Good Friday 2011, Easter Saturday, Easter Sunday, Easter Monday, 13 June 2011 (Queen’s Birthday) and 3 October 2011 (Labour Day). Yet he was paid a flat rate of $17.95 per hour.

780    Robert Wilkey worked in New South Wales. He said and I accept that he worked on 3 October 2011 (Labour Day), Australia Day 2012, Good Friday, Easter Saturday and Easter Monday 2012, Anzac Day 2012, and 11 June 2012 (Queen’s Birthday). He, too, was paid a flat rate of $17.95 per hour, regardless of the day or time that he worked.

781    The Ombudsman failed to discharge her burden of proof, however, with respect to Angela Bustos Alvarado, Andrea Grigoletto, Helen Pakas, and Xia Teng.

782    The Praxeo records show that Angela Bustos Alvarado worked at AMF Dee Why (in New South Wales) on one public holiday: 1 October 2012 (Queen’s Birthday: Public Holidays Act 2010 (NSW) s 4(i)). But none of the pay slips cover that period and there is no other evidence showing what she was paid on that day.

783    There were no Praxeo records for Andrea Grigoletto. The Ombudsman relied on paras 10–13 and 24–25 of his affidavit. They were singularly uninformative. They make no mention of working on public holidays and his evidence is insufficient to establish that he must have worked on a public holiday. His period of employment was from “around January 2013 until around 5 April 2013”, so there is some prospect that he worked at least on one Easter public holiday. But I am not satisfied that more probably than not he did. This was the evidence upon which the Ombudsman relied:

10.    I usually worked for GPS in the evenings from Mondays through to Fridays. Sometimes I worked during the day on a Sunday. When I worked on a Sunday it was generally between 8 am and 4 pm. I may have worked a Saturday every now and then, but I do not recall.

11.     An ordinary weekday shift started at around 6.30 pm and finished between 10.30 or 11 pm, sometimes later.

12.    About two or three weeks after I started working for GPS, Ross Pucci (Mr Pucci) handed me a roster. The roster set out the locations I was required to clean on any given night and how much time it was estimated it would take to clean at each particular site. Now produced and shown to me and marked with the letters AG-2 is a photo I took of the roster.

13.     In relation to that roster I note:

    The column labelled “time” sets out the hours it was estimated it would take me and a colleague to complete the cleaning work at each location. This was supposed to include the time it took for us to travel between sites. For example, on Monday we were allocated 8.5 hours, which meant that we would be paid for 4.25 hours of work each;

    The column labelled “Saturday” is the work that was supposed to be done on Friday night. If the work wasn’t completed on Friday night, it would be done on Saturday or Sunday;

    There is an error on the roster, the total number of hours on Monday should read 8.5, rather than 6.5; and

    Every week Mr Pucci also gave additional tasks to those set out in the roster.

24.     During my job interview for the role at GPS I did not discuss with Kristina how much I would be paid. About two weeks after I had started working for GPS I spoke to Mr Pucci about my rate of pay. I spoke with him face to face while I was cleaning one of the Wilson car parks. Mr Pucci told me that I would be paid $18.00 per hour.

25.     I was told by Jay, the GPS accountant, that I needed to fill out invoices for the work I did. Jay gave me template invoices and showed me what I needed to write on the invoices. I filled out these template invoices each week in the way that it was explained to me by Jay. I did this in the GPS Office at the end of each week. Once I had filled out the invoice each week I gave it to Mr Pucci or Jay. Often Mr Pucci was in the office when I was completing the invoices. I think I completed about 7 invoices in total. Now produced and shown to me and marked AG-5 are true copies of two of the invoices that I provided to GPS.

784    Neither the roster at Annexure AG-2 to his affidavit nor the invoices at AG-5 give any details of when Mr Grigoletto worked.

785    Helen Pakas worked in New South Wales. She said that the only public holiday she worked was 3 October 2011 (Labour Day). The difficulty is in knowing how much she was paid for that day’s work. Her affidavit was silent on the question and the Ombudsman provided no assistance. Rather than pinpointing a particular document, the Ombudsman referred to about 159 pages of pay slips and other documents, exhibited to Ms Pakas’s and Ms Millington’s affidavits in no particular order. Yet the pay slip for the relevant period (along with the pay slips for most of 2011) was nowhere to be found.

786    Xiao Teng worked in the Australian Capital Territory. She said that she worked on 8 October 2012, which is a public holiday in the ACT known as “Family and Community Day”: Holidays Act 1958 (ACT), s 3(1)(a)(x), (6). For the payment side of this contravention, the Ombudsman relied upon Ms Teng’s bank records. But these only show the amounts paid. It is impossible to deduce whether they do or do not include a penalty rate for working on that day. No pay slips for Ms Teng were in evidence.

27    Failure to pay the applicable penalty rate to cleaners working overtime from midnight Sunday to midnight Saturday

28    Failure to pay the applicable penalty rate to cleaners for Sunday overtime

787    Clause 28.2 of the Cleaning Services Award stated:

Overtime, worked from midnight Sunday to midnight Saturday will be paid at the rate of time and a half for the first two hours and double time thereafter.

788    Clause 28.3 of the award required the employer to pay overtime worked on Sundays at the rate of double time.

789    Clause 28.6 provided that “[all] time worked in excess of 7.6 hours per day, five days per week or 38 hours in any week by a part-time employee is overtime.

790    Clause 28.5 states that “[a]ll time worked by full-time employees outside the rostered hours as agreed pursuant to clause 25.1 is overtime”, but cl 24.2 limits the ordinary hours of full-time workers to periods of not more than 7.6 hours per day and not more than five days per week.

791    In other words, for both full-time and part-time employees, overtime is payable at least where the employee works, more than 7.6 hours in one day or works more than five days in one week.

Contraventions of both cll 28.2 and 28.3

792    The Ombudsman alleges that GPS contravened both cll 28.2 and 28.3 in respect of the following 24 employees: Alfonso Alcuitas, Jessica Alvarado Palma, Angela Bustos Alvarado, Mariana De Queiroz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Alyson Hellyer, Freddy Herrera, Robin Malla, Charles Mascarenhas, Tammy May, Kian Mu, Helen Pakas, Jose Pena, Anna Plows, Linda Robinson, Sumit Salhotra, Dianne Sjoberg, Thomas Sung Hong, Tui Tane, Sekson Thinathin, Tuula Rintala and Robert Wilkey.

793    I am satisfied that both clauses were contravened in respect of all of these employees (except for Charles Mascarenhas and Linda Robinson) and that in these respects GPS thereby contravened s 45 of the Act.

794    Alfonso Alcuitas worked seven nights a week. He said he was paid a flat hourly rate of $17.95, except in respect of the last two fortnights of his work, for which he was not paid at all. I accept his evidence and find that at least on the Saturdays and Sundays in that period he worked overtime without receiving the extra pay to which he was entitled.

795    In the case of Jessica Alvarado Palma, the Ombudsman again relied on Ms Alvarado’s responses to the document entitled “Questions for Notional Employee/Contractor”. Under the heading “Hours of Work”, the document contains the following questions and responses:

 

Who sets your hours of work?        

Set

Mon – Fri 9pm – 12 midnight

Sat 5pm – 8pm and

Sun 4pm – 7pm

How regular are your hours of work?

Same from week to week

How are you paid?

$18 per hour not negotiable – the supervisor told me

796    This evidence suggests that Ms Alvarado worked seven days a week and was paid $18 per hour. Though the response to the question regarding pay does not rule out the possibility that she was paid overtime in addition to that hourly wage, there is other evidence that does. In her Workplace Complaint Form Ms Alvarado said that she was not paid for the final two fortnights of her work. She said that she “sent [GPS] invoices for the unpaid periods”. Three such invoices appear among the documents Ms Alvarado produced to the Ombudsman that are exhibited to Ms Millington’s affidavit. They show claims for payment for the periods 1023 December 2012, 24 December 2012 – 6 January 2013 and 7–18 January 2013. They claim, at least for those periods, payment at a flat hourly rate of $18, with no allowance for overtime. I find that Ms Alvarado worked seven days a week throughout her employment and that she was only ever paid $18 per hour, including on the weekends when she worked overtime.

797    The Praxeo summaries exhibited to Ms Millington’s affidavit indicate that Angela Bustos Alvarado regularly worked shifts of about three hours per day, making her a part-time employee. As I have said, the pay slips for Ms Bustos only cover the periods 11 June – 19 August, 3–16 September and 15–27 October 2012, but the Praxeo summaries indicate that she worked seven days per week on 10 occasions within those periods. None of her pay slips show that any additional amounts were paid in respect of overtime and on that basis I infer that no such amounts were paid. I am satisfied that Ms Bustos worked overtime on Saturdays and Sundays in those periods and she did not receive the additional pay to which she was entitled in respect of it.

798    Mariana De Queiroz worked the weekends 28–29 April and 5–6 May 2012. The Praxeo records indicate that those were her sixth and seventh days of her working weeks. She therefore worked overtime hours. I have determined that she was paid only her base hourly rate ($17.95) for the pay periods which included those two weekends. I find that she worked overtime on the two Saturdays and Sundays but was not paid penalty rates.

799    Rangana Dissanayake’s Praxeo records show that he worked seven days a week throughout his employment, and so worked overtime on the Saturdays and Sundays, which were his sixth and seventh days of the working week. I have already found that he was paid the same hourly rate regardless of whether he worked a week day or weekend.

800    Barry Dowling worked seven days a week and his pay slips evidence no payment of penalty rates. I conclude that he was not paid penalty rates in respect of the Saturdays and Sundays on which he worked overtime.

801    Fawaz El Rahman worked seven days per week, for a flat rate of $17.95 per hour. He therefore worked overtime on the Saturdays and Sundays in that period, for which he was not paid the applicable penalty rates.

802    Alyson Hellyer, it will be recalled, worked seven days a week and was paid only a flat rate of $17.95 per hour.

803    Freddy Herrera worked for GPS seven days per week from about early October 2010 until March 2013. As I have said, during that time he was paid only at a rate of $17.95 per hour. I find that on the Saturdays and Sundays in that period he worked overtime but was not paid the requisite penalty rates.

804    Robin Malla worked at least one Saturday and one Sunday, which were the sixth and seventh days of his working week. As I have found that he was paid at a flat hourly rate of $17.95, it necessarily follows that he was not paid penalty rates for the overtime he worked.

805    The only material upon which the Ombudsman relied in relation to Charles Mascarenhas was a single paragraph of his affidavit, in which he stated that he received no more than the $18 per hour he claimed in his invoices. But those invoices, which were exhibited to his affidavit, do not show him ever working more than 7.6 hours in a day or more than five days or 38 hours in a week. Neither contravention is proved in his case.

806    Tammy May worked seven days a week throughout her employment at a flat hourly rate of $17.95 or less, with no extra amounts for the Saturdays and Sundays she worked overtime.

807    Kian Mu, it will be recalled, generally worked seven days per week throughout his employment and he was only paid a flat rate of $17.95. I find that he worked overtime on at least some of the Saturdays and Sundays and that he was not paid the requisite penalty rates.

808    I have already found that Helen Pakas worked Sundays on 24 and 31 July and 7, 14, 21 and 28 August 2011. Those days were the sixth days of her working week and therefore overtime. She only ever received a flat rate of pay. Her Praxeo records reveal that on at least 14 July 2012 she also worked a Saturday that was her sixth day of the week.

809    Jose Pena worked Monday to Saturday between 11 and 23 February 2013, and seven days per week between 24 February and 9 March 2013. He referred to the gross amounts that he was paid for his work at various times, but not their component parts, because he was not provided with pay slips. He did say, however, that he received no payment from GPS after 22 February 2013. I accept that, and therefore find that he was not paid at all for his work during that period and so cannot have been paid for the overtime he worked on the Saturdays or Sundays.

810    Exhibited to Anna Plows affidavit is an email from her to GPS. The effect of her evidence is that this was an email setting out the hours that she had worked. The email shows that she worked every day between Monday 7 May 2012 and Sunday 13 May 2012. Saturday 12 and Sunday 13 May were therefore her sixth and seventh days of the working week and were overtime.

811    Her payslips for the period do not record any overtime payments. I infer that, even if she was paid the amounts stated on the pay slips, she was not paid overtime penalty rates.

812    As I have said, the Praxeo records and pay slips in evidence for Tuula Rintala show that she worked seven days a week between 10 February and 5 April 2012. The weekend days on 25 and 26 February, 10 and 11 March 2012, Saturday 17 March 2012, and Sunday 1 April 2012 were therefore overtime. The pay slips show that she was paid at a flat rate of $17.95.

813    Linda Robinson worked seven days a week in the period up to 14 March 2012. She also worked more than 7.6 hours on many of the days in that period. But I have already explained the difficulties with the Ombudsman’s evidence in respect of what Ms Robinson was paid for her work: her pay slips only disclose the total amounts that were purportedly paid; they do not refer to the number of hours to which the figures relate. As a result, the Ombudsman has failed to discharge her burden of proof in Ms Robinson’s case.

814    Sumit Salhotra’s Praxeo records reveal that he worked a sixth day on at least Sunday 31 July 2011 and Saturday 6 August 2011. His pay slips for that period, exhibited to Ms Millington’s affidavit, record that he was paid a flat rate of $17.95 per hour.

815    Dianne Sjoberg worked seven days per week and was paid a flat hourly rate of $17.95.

816    Thomas Sung Hong was another seven day a week employee working for a flat rate of pay. His Praxeo summaries show that he worked seven days per week between 1 July 2011 and 9 October 2011. He then worked seven days per week for most of the period between 17 October 2011 and 21 April 2013. Payslips annexed to his affidavit, which cover the period 29 April 2011 to 6 January 2013, record that he was paid a rate of at most $17.95 for that entire period. I infer from this that he received no additional pay. I therefore find that he worked overtime for which he was not paid the additional amounts to which he was entitled on the Saturdays and Sundays in the periods 1 July – 9 October 2011 and 17 October 2011 – 6 January 2013.

817    The Praxeo records for Tui Tane cover the period 20 December 2011 to 5 February 2012. They show that she worked three Saturdays (21 and 28 January 2012 and 4 February 2012) that were the sixth days of her working weeks and were therefore overtime. She also worked overtime on Sunday 22 and 29 January 2012 and Sunday 5 February 2012. The latest pay slip in evidence for Ms Tane, however, only covers the period 9–22 January 2012. It records a flat rate of $17.95 in that period with no additional allowance for overtime. Both contraventions are therefore proved in respect of the weekend 21 and 22 January 2012.

818    Sekson Thinathin’s Praxeo records indicate that he regularly worked a seven day week between 17 January and 2 December 2011. His evidence, which I accept, is that he was paid a flat rate of $17.95 per hour. I therefore find that on the Saturdays and Sundays in that period he worked overtime for which he was not paid penalty rates.

819    Robert Wilkey worked seven days a week at the same flat rate of $17.95 per hour. It follows that on the Saturdays and Sundays he worked overtime and he was not paid the requisite penalty rates.

Contraventions of cl 28.2

820    The Ombudsman alleges that GPS contravened cl 28.2 in respect of the following cleaners: Bibek Luitel, Giang Ngo, Khaga Kandel, Michael Kallee, Tashi Wangchuck and Xiao Teng.

821    I am satisfied that cl 28.2 of the award, and therefore s 45 of the Act, was contravened in respect of Khaga Kandel, Giang Ngo and Tashi Wangchuck. In the cases of Michael Kallee, Bibek Luitel and Xiao Teng, however, I am not satisfied the contraventions are proved.

822    Exhibited to Khaga Kandel’s affidavit were copies of invoices that he said he was required to submit for payment. These show him working overtime on a number of occasions, including on Tuesday 19 March 2013 (when he worked a total of 12.5 hours), Wednesday 20 March 2013 (when he worked a total of 8.5 hours), Friday 22 March 2013 (when he worked a total of 13.5 hours) and Friday 29 March 2013 (when he worked a total of 11 hours). He invoiced a flat rate of $20 per hour on each occasion, and his evidence was that he was not even paid the full amounts that he invoiced. It is inherently improbable that GPS ever paid him at a higher rate than the hourly rate in his invoice. The contravention is proved in his case.

823    Giang Ngo set out his days and hours of work at para 38 of his affidavit. It appears that he worked overtime on Wednesday 20 February 2013, when he worked 8 hours in one day. It will be recalled that he was not paid at all. The contravention is proved in his case.

824    Tashi Wangchuck worked, among other days, every day from 16 to 21 July 2012. Saturday 21 July 2012 was her sixth day of work in the week and was therefore overtime. She deposed that she was not paid at all for this period of work and I accept her evidence. I therefore find that she was not paid the requisite penalty rate for overtime worked on Saturday 21 July 2012.

825    Michael Kallee’s Praxeo records show him working overtime on one occasion, on Saturday 19 May 2012 when he worked his sixth day of work for the week. But there is no evidence to indicate whether he was paid and, if so, how much. No pay slip was produced for this period in answer to the Ombudsman’s notices to produce. The Ombudsman asked the Court to draw from this an inference that he was not paid, but the inference is easily rebutted here because there is evidence to indicate that employees who were paid were not always issued with pay slips. Jose Pena is but one example. His wages were paid into his bank account but he said that he never received pay slips.

826    The Ombudsman also submitted that Bibek Luitel worked on Saturday 19 May 2012 and that this was his sixth day of work for the week. There is no evidence to that effect. Three months after the hearing, by an email dated 15 March 2016, forwarded to chambers and copied to Rosario and Enrico, the Ombudsman sought leave to tender a timesheet to show that Mr Luitel worked overtime on Saturday 19 May 2012 because this day was “his sixth day of work”. No objection was taken to the application. Nevertheless, I decline to admit it, not least because it is irrelevant. It is irrelevant because, while it purportedly shows that Mr Luitel worked on Saturday 19 May 2012, it does not show that this was his sixth day of work that week, but his fourth, as the timesheet indicates that he did not work on Wednesday, 16 May 2012 or Friday, 18 May 2012.

827    Xiao Teng’s hours of work are contained in an email she sent to Ms Millington, which is annexed to her affidavit. According to the email, she worked in excess of 7.6 hours per day on 13 October, 1–2 November, 5–9 November, and 12–15 November 2012. It also states that she worked six days a week in the weeks beginning 8 and 29 October and 5 November 2012. I accept this evidence, and find that she did work overtime on a number of occasions, though one such occasion was on a Sunday (11 November 2012) and so is not presently relevant.

828    The Ombudsman submitted that Ms Teng was “purportedly paid” at a flat rate of $18 per hour and in this regard relied on para 9 of her affidavit. But in that paragraph Ms Teng merely deposed that, when she started work, in a five-minute conversation with a GPS employee, she was told that “the rate of pay is $18 per hour and you will be paid weekly”. That bare statement does not indicate that she was told she would be paid at a flat rate, let alone that she actually was paid at a flat rate. Nothing in that paragraph indicates that the advice she received was intended as an exhaustive description of her entitlements.

829    The Ombudsman also pointed to para 33 of Ms Teng’s affidavit, where she referred to bank statements exhibited to her affidavit evidencing the four amounts she said she had received. The total — $2,354.10 — seems low given the total number of hours she worked (254.5) and the number of those hours that were overtime hours. But the Ombudsman could not point to any information showing to what underpayments the deficiencies in the pay were attributable. It is possible that she was paid properly for her overtime but not paid at all for other days that she worked. As such, the Ombudsman has not discharged her onus of proof in relation to this employee.

Contraventions of cl 28.3

830    It will be recalled that cl 28.3 imposes an obligation on an employer to pay overtime worked on Sundays at the rate of double time.

831    The Ombudsman alleges that GPS contravened cl 28.3 in respect of the following three part-time employees: Fiona Holland, Cheryl Sorrell, and Baljinder Singh.

832    I am satisfied that cl 28.3 of the award, and therefore s 45 of the Act, was contravened in each of these cases.

833    Fiona Holland was only ever paid at a flat rate of $17.95. Her Praxeo records indicate that she worked on Sunday 1 July 2012, which was her sixth shift of the week. I therefore find that she worked overtime on Sunday 1 July 2012 for which she was not paid double time.

834    Cheryl Sorrell worked on Sunday 11 September 2011, which was the sixth day of her working week. Her pay slip for that period, produced by Reggio and exhibited to Ms Millington’s affidavit, only records her being paid a base rate of $17.95, with no double time for her overtime work on the Sunday 11 September. From this I infer that none was paid.

835    Baljinder Singhs Praxeo records show him working Sunday 26 August 2012, which was his seventh day of work that week. For this reason I am satisfied he worked overtime on a Sunday. As I have said, he was not paid at all for his work.

29    Failure to pay overtime to cleaners working on public holidays

836    Clause 28.4 of the Cleaning Services Award states that [o]vertime worked on Public holidays will be paid at the rate of double time and one half.

837    The Ombudsman alleges that GPS contravened cl 28.4 of the award in respect of the following people, whom I have found were part-time employees: Barry Dowling, Alyson Hellyer, Khaga Kandel, Tammy May, Linda Robinson, Thomas Sung Hong and Robert Wilkey.

838    The contravention is proved in each case.

839    Barry Dowling worked seven days per week for the whole of his employment with GPS, including Easter Sunday 2012 and received only his base rate of $17.95 per hour with no allowance.

840    Alyson Hellyer’s Workplace Complaint Form suggests that she worked in NSW. Her Praxeo records reveal that she worked between midnight and 1.20am on 11 June 2012, the Queen’s Birthday public holiday. Yet she was only paid a flat rate of $17.95 per hour.

841    Khaga Kandel worked overtime on 29 March 2013 (Good Friday) and was paid, at most, his base rate of $20 per hour.

842    Linda Robinson worked 8.75 hours on the New Year’s Day public holiday on 2 January 2012 and on Australia Day (26 January) 2012. She therefore worked overtime on two public holidays. As I have said, she was not paid any additional amount or penalty rate on those days.

843    Tammy May worked in South Australia. She worked seven days a week from at least 15 August 2010 until 6 January 2013. On each of Christmas Day 2011 (a Sunday), New Year’s Day 2012 (a Sunday), and Easter Saturday (Holidays Act 1910 (SA), s 3, Sch 2) and Easter Sunday in 2011 and 2012, she worked her sixth or seventh days of the week and therefore worked overtime. Her pay slip for the period including Christmas Day 2011 does not specify an hourly rate, but for each other occasion her pay slips do not record payment at the prescribed rate and I conclude that she was not paid at that rate on any of the occasions covered by cl 28.4.

844    Thomas Sung Hong’s Praxeo records reveal that he worked on Easter Saturday and Easter Sunday 2012 (his sixth and seventh days of the week and therefore overtime) and, as I have said, he was paid (at most) a flat rate of $17.95 per hour.

845    Robert Wilkey worked seven days a week from about 15 March 2011 until the end of July 2012 and was always paid the same flat rate of $17.95 per hour. I am therefore satisfied that on 7 April 2012 (Easter Saturday) he worked overtime (being his sixth working day of the week) for which he was not paid at the overtime rate prescribed by the award.

30    Failure to pay cleaners annual leave loading

846    Save in circumstances dealt with in cl 29.4(b) upon which the Ombudsman did not rely, cl 29.4 of the Cleaning Services Award requires employers to pay an annual leave loading of 17.5% to all employees calculated at the employees’ ordinary time rates of pay. It reads:

29.4    Payment of annual leave

(a)    The terms of the NES prescribe the basis for payment for annual leave, including payment for untaken leave upon the termination of employment. In addition to the terms of the NES, an employer is required to pay an additional leave loading of 17.5% calculated on an employee’s ordinary time rate of pay.

847    In respect of this contravention, the Ombudsman pleaded that:

238.    During the Audit Period, a number of Cleaning Employees took periods of annual leave for which they were entitled to be paid an additional loading of 17.5%

239.    GPS as the true employer of the Employees failed to pay Cleaning Employees additional leave loading during periods of annual leave.

848    The Ombudsman alleged that 42 cleaning employees took periods of annual leave for which they were entitled to be paid the 17.5% loading. The employees are: Alfonso Alcuitas, Jessica Alvarado Palma, Abraham Arguello, Paul Bacon, Wendy Bong, Juliana Botero Hernandez, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Andrea Grigoletto, Marissa Hall, Alyson Hellyer, Freddy Herrera, Fiona Holland, Michael Kallee, Khaga Kandel, Bibek Luitel, Robin Malla, Charles Mascarenhas, Tammy May, Kian Mu, Giang Ngo, Helen Pakas, Jose Pena, Barbara Piper, Anna Plows, Tuula Rintala, Linda Robinson, Sumit Salhotra, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey and Wen Yang.

849    Nothing was pleaded in respect of loading on untaken annual leave paid upon termination. Yet in almost every case, the part or parts of the evidence upon which the Ombudsman relied referred only to failure to make payment for untaken annual leave. The task of sifting through the evidence to discern whether each employee had actually taken any annual leave for which they were not paid the requisite loading thus fell upon the Court.

850    Ultimately, the contravention was proved in the following six cases only: Mariana De Queiroz, Barry Dowling, Tammy May, Helen Pakas, Thomas Sung Hong and Robert Wilkey.

851    Fourteen of the 42 employees expressly stated in their affidavits that they did not take any annual leave during their employment with GPS: Alfonso Alcuitas, Marissa Hall, Freddy Herrera, Fiona Holland, Bibek Luitel, Kian Mu, Jose Pena, Barbara Piper, Linda Robinson, Dianne Sjoberg, Cheryl Sorrell, Tui Tane, Xiao Teng and Tashi Wangchuck.

852    Eleven employees said nothing at all about whether they took any annual leave and I could find no other evidence to suggest that they did. They were Abraham Arguello, Wendy Bong, Marco Diaz, Rangana Dissanayake, Fawaz El Rahman, Andrea Grigoletto, Khaga Kandel, Robin Malla, Charles Mascarenhas, Anna Plows, and Sekson Thinathin.

853    For the following seven employees, who did not swear affidavits, I was not taken to any evidence to indicate they had taken any annual leave: Juliana Botero Hernandez, Alyson Hellyer, Michael Kallee, Jessica Alvarado Palma, Tuula Rintala, Sumit Salhotra and Baljinder Singh. In fact in Ms Botero’s case the evidence was to the contrary. She stated in her Workplace Complaint Form that she worked every week day of her employment.

854    I turn now to the remaining employees.

855    Angela Bustos Alvarado said in her Workplace Complaint Form that she took four weeks’ approved leave from 28 December 2012 until 28 January 2013, following which her employment was brought to an abrupt end without further payment. The Ombudsman assumed, but did not prove, that this was approved annual leave.

856    Nor has the Ombudsman proved that GPS contravened cl 29.4 of the award with respect to Paul Bacon. As I said at above, it is unclear from his affidavit whether he took any annual leave.

857    Mariana De Queiroz took one week of approved leave to go away with her family for a holiday. She said that she was required to find a replacement to do her work, and, as a result, with her supervisor’s agreement, her brother covered for her. GPS paid Ms De Queiroz for the time (from which amount she said she paid her brother) but no more. She did not receive “any additional leave loading” for that week.

858    Barry Dowling said that he took a number of periods of annual leave. Due to the late receipt of his wages he could not be sure how much he received for many of those periods, but his pay slip dated 21 September 2012 records 24 hours of annual leave paid at the rate of $17.95 per hour. At least in respect of that period, it is clear that he was not paid the requisite loading so the contravention is established to this extent.

859    Tammy May said that she took annual leave between 1 and 11 August 2011. The two pay slips covering that period, however, exhibited to Ms May’s affidavit, make no mention of annual leave or annual leave loading. Nonetheless, I accept her evidence. The pay slips record payments made in the period only at the base hourly rate of $17.95. The contravention is proved in her case.

860    The contravention is not proved with respect to Giang Ngo because I found that he took no annual leave.

861    I found that Helen Pakas took annual leave on 6–9 April 2010, 28 December 2011 27 January 2012, 22–28 March 2012, 13–18 September 2012, and 24 December 2012 28 January 2013. Her pay slips disclose that she was not paid an annual leave loading for the last three periods. The contravention is proved in her case.

862    Thomas Sung Hong went on four weeks approved annual leave in October 2013 (after almost three years of working without taking any). He called Alfredo a couple of days before he was due to return only to be told he was fired. He did not receive any payment while he was on annual leave or when he returned. It follows that the contravention is proved in his case, too.

863    Robert Wilkey took at least one period of annual leave during his employment, between 6 and 19 May 2012, for which he was not paid at all. The contravention is also proved in his case.

864    The contravention is not proved with respect to Wen Yang. He gave no evidence of his own on the question. The Ombudsman relied on nothing more than para 9 of Ms Teng’s affidavit, which is irrelevant. It reads:

I then sat down with Irena and we had a conversation for about five minutes. During this time Irena told me about the cleaning job. I remember her saying “The rate of pay is $18 per hour and you will be paid weekly.”

(Original emphasis.)

31    Failure to pay the national minimum wage

865    Section 293 of the FW Act states that an employer must not contravene a term of a national wage order.

866    Clause 4 of the National Minimum Wage Order 2012 stated:

4.    National minimum wage

4.1    The national minimum wage is $606.40 per week, calculated on the basis of a week of 38 ordinary hours, or $15.96 per hour.

4.2    The national minimum wage applies to an award/agreement free employee

other than:

(a)    a junior employee;

(b)    an employee to whom a training arrangement applies; or

(c)    an employee with a disability.

4.3    An employer of an employee to whom the national minimum wage applies must pay the employee a base rate of pay that at least equals the national minimum wage.

867    Clause 5 provided for an extra loading for casual employees, but the Ombudsman did not submit that any of the alleged contraventions related to casual employees. The National Minimum Wage Order was in force from 1 July 2012 – 30 June 2013. Again, the burden of proving that one of the exceptions (in cl 4.2(a)–(c)) applied rests with the employer.

868    Clause 3.1 provides that “award/agreement free employee” has the meaning given in the FW Act, s 12 of which defines an “award/agreement free employee” as “a national system employee to whom neither a modern award nor an enterprise agreement applies”.

869    It therefore fell upon the Ombudsman to prove that each employee the subject of the allegation:

(1)    was not covered by a modern award or enterprise agreement; and

(2)    was paid less than the national minimum wage.

870    In support of these submissions, the Ombudsman relied on the following documents:

 

(a)    In the case of Paul Saint James:

 

(i)    all the records produced by National Contractors in respect of Mr Saint James, in response to the Ombudsman’s first notice to produce;

(ii)    all the records produced by National Contractors in respect of Mr Saint James, in response to the Ombudsman’s second notice to produce;

(iii)    the entire transcript of Ms Millington’s interview with Mr