FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Personnel Contracting Pty Ltd [2019] FCA 1807

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

introduction

1    This proceeding was heard in conjunction with proceeding no VID 1191 of 2018 (VID 1191). The two proceedings concern the respondent and raise the same legal issues. By agreement, opening submissions and evidence were heard in this proceeding after opening submissions and evidence in VID 1191. Closing submissions were then made in turn in VID 1191 and then in this proceeding. Mr J Blackburn SC appeared in both proceedings for the respondent (Construct). Mr RJS French of counsel appeared for the applicant (FWO) in this proceeding. Mr French was present in court at the commencement of VID 1191, and during the course of closing submissions in it.

2    This procedure was agreed in order to minimise repetition, which it did.

3    These reasons therefore assume familiarity with, and should be read together with, my reasons in VID 1191 of 2018 (Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806).

4    In this proceeding, the FWO alleges, among other things, that Construct contravened s 45 of the Fair Work Act 2009 (the Act) by not paying three workers certain allowances and entitlements that he says were due to them as employees performing building work during the period 14 July 2016 to 14 October 2016 who were covered by the Building and Construction General On-Site Award (the Award).

5    Like proceeding VID 1191, the critical question here is whether the relevant workers were employees.

6    The workers the subject of this proceeding are Ms Jessika Lee (née Robinson-Dernie), Ms Ieasha Kemp, and Mr Lyall James. Ms Lee and Ms Kemp were 16 and 17 years old respectively when they signed on with Construct.

7    Like the CFMMEU in VID 1191, the FWO does not dispute that Construct intended to engage the workers as independent contractors. And he also does not contend that the contract between Construct and the workers, the “Administrative Services Agreement” (the ASA), was a sham, or a pretence.

8    The FWO’s case is along the same lines as the case brought by the CFMMEU in VID 1191, namely that the named workers, Ms Kemp, Ms Lee and Mr James (collectively, the workers), were employees of Construct during the relevant pleaded period because:

(1)    Construct had the ultimate right of control over each of the workers pursuant to the terms of the ASA.

(2)    Construct exercised that ultimate right of control by directing each of the workers to attend Hanssen sites and to do what they were told by the supervisors on site.

(3)    Each of the workers was not at any point operating their own business.

(4)    Each of the Workers was integrated into Construct’s business “in the sense that they were providing labour on site in accordance with an overriding direction made by Construct”.

(5)    Construct was liable to pay the workers for each hour of work performed by them for Hanssen.

The Facts

Construct and Hanssen

9    Construct is a company which organises for workers to work at the sites of its clients, under the supervision of the client.

10    Hanssen is a client of Construct.

11    The gist of the arrangement between Hanssen and Construct is that Hanssen places an order with Construct, which then arranges for workers it has listed on its register to present themselves at the work site, and work under Hanssen’s supervision. Hanssen pays Construct, and Construct pays the workers for their hours worked. The amount Hanssen pays Construct varies according to how much the worker is paid, which can be negotiated between the worker and Hanssen.

12    Construct and Hanssen’s relationship was (and is) governed by a Labour Hire Agreement (LHA), the relevant terms of which are set out at annexure A to the reasons in VID 1191.

13    The terms of the ASA, the FAQ document, the “Contractor Safety Induction” form and the “Guide to Work at a Glance” are also set out in my reasons in VID 1191.

14    The parties also tendered an agreed statement of facts, which includes the following.

15    Pursuant to the Labour Hire Agreement, Construct provided workers to Hanssen to work at sites controlled by Hanssen. Before commencing the work referred to below, each of the workers signed the ASA provided to them by Construct.

16    At all relevant times, Hanssen was a builder at a construction site at 189 Adelaide Terrace, East Perth. It required the workers and all other workers on the site to register the hours that they were in attendance on the site by clocking in at the commencement of each shift and clocking out at the end of each shift using an electronic system; kept computer-generated records of the hours worked by each worker based on the electronic system; paid Construct a charge-out rate for each hour worked by the workers pursuant to the Labour Hire Agreement; and engaged the following persons who, among other things, supervised the workers on the site: Denby Jackson, site supervisor and Stephan Rush, supervisor.

17    During the period 14 July 2016 to 14 October 2016, the workers worked at the site during the following periods: Ms Lee, 19 August to 27 September 2016; Ms Kemp, 30 August to 14 October 2016; Mr James, 14 July to 14 October 2016.

18    Two of the workers, Ms Lee and Ms Kemp, were minors when they were first engaged by Construct. Ms Kemp turned 18 during the period that she was engaged by Construct.

19    During the relevant times, Construct paid each of the workers a flat hourly rate. In the case of Ms Lee the rate was $16 per hour. Ms Kemp’s rate was $17 per hour. Mr James’s rate was initially $23 per hour, but increased to $25 for the period 3 to 14 October 2014.

20    It was also agreed that none of the workers issued invoices to Construct.

21    Each of the workers recorded their hours via “time allocation sheets”, verified by electronic clock-in/clock-out records, and Construct paid each worker weekly, by electronic funds transfer, for the hours they worked.

22    Construct:

(1)    each week withheld and subsequently remitted income tax to the Australian Taxation Office on behalf of each of the workers in accordance with a notice of variation of withholding requirements from the Australian Taxation Office;

(2)    paid superannuation on behalf of each of the workers in accordance with the superannuation legislation, which amounts were remitted monthly; and

(3)    each week issued each of the workers with a “Payment Advice”, setting out their hours, rate, total gross payment and net payment paid, tax withheld and amount remitted to superannuation.

23    None of the workers tendered for the work.

24    Each of the workers carried out labouring and/or trade work including but not limited to the following:

(1)    Ms Lee: lagging, pipework, insulation , silicone and cabinet protection.

(2)    Ms Kemp: silicone detailing, window protection, grouting and waterproofing.

(3)    Mr James: doing scaffolding work and obtaining scaffolding licences.

25    Each of the workers performed work at Hanssen’s sites under supervision, was required to perform their work personally and was unable to delegate their work to any third parties.

26    Ms Lee and Ms Kemp used their own boots and their own high visibility shirts. All other tools and equipment were supplied at site by Hanssen;

27    Mr James used his own boots, his own high visibility shirt and his own basic tools. All other tools and equipment were supplied at site by Hanssen.

28    The FWO adduced affidavit evidence from each of the workers and the mother of Ms Lee and Ms Ieasha Kemp (Mrs Tammy Kemp). Each of them was cross-examined.

29    Construct adduced evidence from Mr John van der Plas, Mr Todd Marshall and Ms O’Grady. Unsurprisingly, other than dealing with specific facts concerning the workers in this case, their evidence about the procedures adopted by Construct and Hanssens, and the contractual arrangements, was relevantly identical to the evidence led in VID 1191. Each of them was cross-examined.

30    Mr Blackburn submitted that evidence of the workers’ subjective understanding of the contractual documentation and the like is inadmissible. He did, however, agree that the fact that Ms Kemp and Ms Lee were minors at the relevant time “may be a factor to be considered in the totality of the circumstances along with all of the other factors”.

31    I will allow the evidence to which objection was taken, on the basis that it is relevant to the question, and only to the question, of the totality of the circumstances to be evaluated. For reasons that I will explain later, it seems to me that, in the light of the way that the FWO puts his case in that regard, little turns on the evidence to which objection was taken in any event.

32    I will summarise below the nature of the evidence adduced by both parties, although, as will become apparent, aside from the fact that Ms Lee and Ms Kemp were minors at relevant times, the facts are not relevantly distinguishable from those in VID 1191.

Evidence of Ms Tammy Kemp

33    Mrs Kemp swore two affidavits, dated 8 March and 15 May 2019. Her husband, Mr Steve Kemp, worked at Hanssen as a gyprock contractor, and in 2016 had done so for 11 years. On 8 August 2018, Mrs Kemp drove Ms Jessika Lee to Construct’s offices, who on the way told her she was very nervous, and unsure of what to expect. Ms Lee was interviewed by John van der Plas. Mrs Kemp’s affidavit continued:

7     I recall that Jessika’s interview with John lasted about 30 minutes. At one point during the interview, John called out to me. I cannot recall his exact words, only that he was asking in substance whether Jessika had an existing tax file number and superannuation account. I said that I did not believe that she had either of these things.

8.    At the conclusion of the interview, I left the Respondent’s Office with Jessika. In the car ride on the way home, I recall that Jessika said to me in substance that she had completed some paperwork, and that John had said to her that she was successful in getting the job.

9.    I recall asking her what paperwork John had asked her to sign. I recall that Jessika was unable to tell me what documents she had signed, and that she could not recall the names of the documents. However, because she hadn’t mentioned anything about a contract, I didn’t get concerned.

34    On 26 August 2016, Mrs Kemp drove Ms Ieasha Kemp to Construct’s offices. She too told her mother that she was very nervous, and unsure of what to expect. Again, Mrs Kemp did not accompany her daughter to the interview. Her affidavit continued:

13.    At the conclusion of the interview, Ieasha and I left the Respondent’s Office. In the car ride on the way home, I recall that Ieasha said to me in substance that she had completed some paperwork, and that John had said to her that she was successful in getting the job.

14.    I recall asking her what paperwork John had asked her to sign. I recall that Ieasha mentioned a work safety assessment, but that she could not recall what else she had signed. Again, because she hadn’t mentioned anything about a contract, I didn’t get concerned.

35    In her 15 May affidavit, Mrs Kemp said the following:

9.    In my First Affidavit, at paragraphs 7 and 12, I said that each interview lasted about 30 minutes. By this, I mean the time that both Jessika and Ieasha were meeting with John one-on-one. I still believe this to be correct. However, if I included the time that John took to introduce himself to each of us, the time that we were in the Office might have been longer, perhaps 40 minutes.

10.    At the conclusion of each of the interviews, neither Jessika nor Ieasha were carrying any documents.

Evidence of Ms Jessika Lee

36    Ms Lee swore two affidavits, sworn 8 March and 15 May 2019 respectively.

37    Ms Lee said that in August 2016, when she was 16 years old, Ms Lee asked her step-father, Mr Steven Kemp, if he could help her find a job. He arranged for an interview with Construct, and told Ms Lee that she would need a “white card”, which she obtained online on 7 August. She described her interview with John van der Plas relevantly as follows:

15.    At the start of the meeting, I recall that John explained the interview process to me. I cannot now recall exactly what he said but he said something like, “This is not a formal interview. You already have the job and we are just signing you off on the formalities.”

16.    During the interview (though I cannot now recall at what point), John showed me the following documents:

(a)    Administrative Service Agreement (ASA);

(b)    Construct – Frequently Asked Questions; and

(c)    Construct – Guide to Working at a Glance.

…I was not given copies of these documents during or after the interview.

17.    I cannot now recall what John said to me about these documents but I do recall that he spoke about them very quickly. I also recall thinking that I did not know or understand any of what John was reading and I was not sure what the ASA was. I did not ask any questions about the documents as I was too scared and wanted to get the job.

18.    I also do not recall signing the ASA but I have now been shown a copy … by the Applicant’s lawyers in preparing this affidavit and recognise the signature as my own.

19.    During the meeting, I recall that John asked me in substance if I had a superannuation account. I did not know so he either left the room or opened the door (I cannot now recall) and asked my Mum. He then asked me to fill out a form for my superannuation.

20.    I also recall that John asked me about my tax file number but I did not have one at that time. I think he said to me something like, “You will need to get a tax file number within the first two weeks of working on site”… I recall only completing Section A of the form during the interview and I was not provided with a completed form after the meeting.

21.    To the best of my recollection, we did not speak about the job and what I would be doing on site during the meeting.

22.    The meeting finished after about 30 minutes. At the end of the meeting, I recall John saying to me something like, “I will text you with details about the job soon. On site you will have to wear high-vis, a hard hat and steel capped boots. You will get the hard-hat on site but need to purchase the other items.” I cannot now recall if John told me where to purchase these items.

38    During cross-examination, Ms Lee agreed that the interview probably lasted for about an hour (at T 290, line 37), and that there were a number of things about the interview that she did not recall (at T 290, line 5).

39    In Ms Lee’s second affidavit, of 15 May 2019, she added the following to her account of the interview:

Interview with the Respondent

7.    I recall that when the interview started, John put a number of documents in front of me. I recall that as I started to read them, he started to summarise points out loud. I recall John handed me a pen and pointed to where I was expected to sign on each of the documents that required a signature.

8.    John never said anything to me about me being able to take any of the documents away to review. I didn’t feel like there was any opportunity for me to do so.

9.    Given John had already told me that my mother wasn’t allowed into the meeting, I didn’t consider that the documents were important.

    …

11.    John never said anything to me about me having an ability to reject work. I recall John telling me the hours of work on site were worked on Monday through Saturday and that it was expected I would work those days.

12.     At the end of the interview, John put all the documents into a folder. John did not offer to provide me with a copy of the documents.

The rate of pay

13.    John did not discuss the rate of pay, or the ability to obtain increases to the rate of pay, during the interview.

40    Ms Lee also gave evidence that following the interview she bought a high-vis top and steel boots. On 18 August 2016, she received a text message from John van der Plas about commencing work, which included her rate of pay. The next day, she started work at 189 Adelaide Terrace, East Perth (the Hanssen Site, referred to elsewhere as the Concerto Site). She said the following about her induction:

30.    At about 7:00am on 19 August 2016, I recall that [a man called] Denby took the pre-start meeting in the lunch room. The meeting went for a few minutes.

31.    At the end of the meeting, Denby asked me, and five others, to join him in the site office in the basement for an induction (Induction).

32.    I recall that we were given a piece of paper (though I cannot now recall from who) with a number of questions on it about safety. I specifically remember that the test repeated a number of questions that I was asked in my White Card test and one of the questions asked if there should ever be ladders near windows. I cannot now recall what the other questions were about.

33.    I completed the test and I think I gave it to Amy O’Grady ... I was not given a copy of the test or and do not recall signing or being given any other documentation at the Induction.

34.    During the induction (though I cannot now recall the exact time), I recall that a woman named Amy (I cannot now recall her last name) said to us in substance that we were not allowed to use our mobile phones while working on the Hanssen Site unless we were on our lunch break or needed to contact her or Denby directly, and our mobile phones had to be fully tucked away.

35.    Once everyone had finished the test, I recall that Amy said to us in substance that she was going to show us where the tool shed was located. We then walked to the tool shed and Amy introduced the group to a man who I think was named George. I do not know who he worked for on the Hanssen Site.

36.    I recall that either Amy or George (I cannot now recall who) then said in substance that if we ever needed tools or gear that was big or expensive, like a ladder, we had to go to the tool shed, ask George what we needed and then sign the item out.

 37.    At this time, I recall that George handed me a hard hat.

38.    After Amy showed us the tool shed, she introduced me to Raphaela Ruchti (Raphaela) and said in substance that I would be working with Raphaela doing lagging pipework on the Hanssen Site. I cannot now recall who Raphaela worked for. Raphaela told me something like, “you will be working with me for the week until you get used to working on your own and know what you are doing”.

41    Ms Lee continued:

39.    On the same day, Raphaela showed me how to wrap insulation around a pipe. I recall that I needed training as I had never done this work before. I did not have any qualifications in this work except my White Card. By the end of the first day, I knew what I was doing but I continued working with Raphaela for a few more weeks. I recall that during this time, Raphaela would sometimes inspect my work (though cannot now recall when or how many times she inspected my work).

40.    While I was working on the Hanssen Site, I reported to Amy most mornings (though I cannot now recall from what date). I recall that Amy would ask me in substance where I was up to in my work and she would then tell me what jobs needed to be done. Some days I would carry on the lagging from the previous day and other days Amy would get me to start on a new task, such as, cleaning, cabinet protection or wall insulation.

41.    After I spoke with Amy each morning, I recall going to speak to Raphaela about the task that Amy had asked me to complete and Raphaela would then tell me what tools I would need. I would then go to the tool shed on the Hanssen Site and get the tools I needed for the day. For example, when I was on lagging duties, I would get a Stanley Knife and tape from the tool shed each morning.

42.    Throughout the week, I recall that Amy would check in with me to see if I was doing my work correctly. If I was not doing my work properly, I recall that Amy would say to me something like, “Can you please go back and re-do that section to fix it?”

43.    Each level of the Hanssen Site had to have lagging installed on the pipes. Sometimes, if I did not finish a level, Amy would say to me in substance that I had to stay back and finish the level or I would be fired.

44.    Because I was scared of being fired, I stayed back at work until about 6:30 pm a number of times to finish a level of lagging. I recall that Amy and Denby would always be sitting in the Site office whenever I stayed back.

45.    After a few weeks of working with Raphaela doing lagging pipe duties, I was moved to cleaning (though I cannot now recall the exact date). I recall that Amy said to me in substance that Raphaela and I were moving too quickly and we had caught up to the work being done by the plumbers so we could not do any more lagging. Amy then gave me five different sized brushes and asked me to dust proof each level of the building, including the ceiling of each level. I had to lean over a lot to do this work to make sure there was no dust in any of the cracks.

46.    The next day, I came back to work and continued cleaning in the morning. At lunchtime, I said to Amy something like, “Amy, it hurts my back to do this work. I was in a car accident and have a bad back.” Amy responded by saying to me something like, “If your back is bad don’t work here. Go home.”

47.    I cannot now recall the exact details but, after my conversation with Amy, I asked someone else on the Hanssen Site (though I cannot now recall who or when) if I could be placed in another role and I was then moved to insulation.

48.    I worked in insulation for a few days to a week. I worked alongside a man of Asian descent but I never spoke to him and do not know his name. I recall that Amy briefly explained to me how to do wall insulation but I cannot now remember if she checked on my work.

49.    After I finished the wall insulation work, I recall that Amy asked me in substance to move on to cabinet protection as no one was performing the work and it needed to be done. I remember that I had to work alongside a woman (though I cannot now recall her name and do not know who she worked for). At this time, I recall that the woman showed me how to protect the cabinets. In particular, the woman showed me how to cut out pieces of cardboard to the size of the cabinet doors and then stick the cardboard to the doors to protect them.

 50.    I cannot now recall how long I performed cabinet protection for.

Hours of work

51.    At the induction on 19 August 2016, I recall that Denby said to me something like, “Work hours are Monday - Thursday: 7:00 am to 4:45 pm; Friday 7:00 am to 3:45 pm and Saturday 7:00 am to 12:00 pm. You clock off by giving your fingerprint at the sensor every day. If you can’t work for some reason you have to let me know in advance by text.”

52.    During my time working on the Hanssen Site, I recall thinking that if I did not work the set hours I feared I would be fired by Denby. I held this view because I recall that Denby would read out at the pre-start meetings text messages sent to him from workers who could not attend work for personal reasons. I presumed these were not acceptable excuses for not coming in and therefore resulted in me feeling like I would be fired if I did not come in for a personal reason. I also recall thinking that I could not choose the days I worked or not turn up at work unless Denby said it was ok because Steve said to me (though I cannot now recall when) in substance that Denby fires people easily.

42    During cross-examination, Ms Lee conceded that the latest she ever stayed was in fact 4:59pm. (at T 296, line 31).

43    In respect of her pay and how it was determined, Ms Lee said that she was paid $16 an hour for the hours that she worked. She never issued an invoice to Construct and never asked for a pay rise “as I did not think I was allowed to and I thought I was being paid well”.

44    As to her understanding of her right to delegate tasks, refuse work, and take leave, Ms Lee gave the following evidence:

60.    At the Hanssen Site, I never asked if I could delegate my tasks to anyone else and no one ever told me that I could. I thought I was an employee of Construct to do my jobs allocated to me. I did not think I was my own boss making any decisions.

61.    I only refused work given to me once …

Taking leave

62.    I took about three or four days off during my time working for the Respondent on the Hanssen Site. I took one day off when I had my kidney infection and a day off for my driving test or driving lesson (I cannot now recall which). When I took these days off, I would ring or text Denby in the morning to tell him I could not come in. To the best of my recollection, Denby had said to me previously (though I cannot now recall when) that I had to contact him before 7:00am if I was ever going to miss a day or be late to the Hanssen Site.

63.    I was not paid for the time that I took off work and I did not ask to be paid. I was also not asked to source a replacement worker for these days.

45    Ms Lee gave the following evidence about finishing up:

64.    On or about 17 September 2016, I had a conversation with Amy where I told her in substance I would have to leave on time on 18 September 2016 as I had an appointment straight after work. I recall that Amy said to me in substance that this was okay and that I could leave.

65.    On or about 18 September 2016 at 4:50 pm, I recall receiving a phone call from Amy (as I had just left the Site to go to my appointment) and had a conversation with Amy where she said to me in substance that my job was terminated. Our conversation was of the following effect:

Amy said: Have you finished your work on the level?

I said: No, but I have to go as I have an appointment to get to this afternoon at 5:00 pm in West Perth at the Licencing Centre. I can’t finish the work this afternoon because I can’t stay back late. I told you yesterday.

Amy said: You have to finish your work. Please don’t bother coming back tomorrow if you can’t finish it.

66.    Later that day, I called Denby and I recall asking him something like, “Why did Amy fire me”. I cannot now remember exactly what Denby said in response but he said to me in substance that it was a decision made by both him and Amy and he had come to the decision after a number of incidents had occurred at the Hanssen Site.

46    During cross-examination, Ms Lee agreed that her last day of work was 27 September 2016 and that because she had not been at work the previous day she could not have had the claimed conversation with Ms O’Grady about leaving on time the following day.

Evidence of Ms Ieasha Kemp

47    Ms Kemp gave evidence in her affidavit of 8 March 2019 that in August 2016 her step-father (Steve Kemp) put her in touch with Mr van der Plas. On 24 August 2016, she received a text message explaining how to obtain a white card, which she obtained. She attended an interview at Construct’s offices on 26 August, when she was then 17 years old.

48    Ms Kemp gave the following evidence about her interview:

Interview with the Respondent

10.    On 26 August 2016, my mother, Tammy Kemp, drove me to the Respondent’s offices located at 64 Canning Highway, Victoria Park for my interview with the Respondent. I recall entering the Respondent’s offices alone, and being interviewed by John. I recall feeling very nervous, but John said to me something like:

‘Don’t worry, this isn’t an interview; you’ve already got the job and this is just us getting all the paperwork in order.’

11.    John’s comments made me feel at ease; I recall feeling excited that I had secured a job.

12.    During the meeting, I recall that John had a copy of the ASA, the “Contractor Safety Induction” (Safety Induction), and a copy of a document entitled “Construct – Most Frequently Asked Questions” (FAQs) in front of him on his desk. John spoke to me about the content of the ASA, the Safety Induction, and the FAQs during the meeting (although I cannot now recall exactly what he said) ...

13.    To the best of my recollection, I felt very confused and I did not understand most of what John said to me when he was talking about the ASA, the Safety Induction, and FAQs. I recall that I did not want to say anything to John about my lack of understanding because I believed that I had just secured my first job. Based on those things that I did understand, which was that I was going to be working on a construction site and being paid an hourly rate for that work, I understood it to be a contract of employment.

14.    I don’t recall John saying anything about the hours of work, though I recall that my Dad had told us what the hours of work would likely be (that is, Monday through Saturday). John made no mention of me being allowed to accept work with other contractors.

15.    I recall that John then said to me in substance that I needed to supply my own work wear [being steel capped boots, and a high-vis shirt]. …

16.    I also recall that once John had finished talking, he asked me to read and sign the ASA. I recall that John specifically pointed to the areas on the page that he wanted me to sign, and I didn’t feel like there was any opportunity to take it away for further review. I read through the document, and recall that there was a lot that I did not understand in it. But, again, because I believed that I had just secured my first job, I did not want to say anything, and so I signed the ASA.

17.    At the end of the meeting, John collected the ASA from me, and placed it into a folder on the desk. I was not provided a copy of the ASA. I got up, thanked John, and left the office.

…

19.    On or around 2 September 2016, I received a text message from John containing information relating to the construction site that I was to be working on, being 189 Adelaide Terrace, East Perth (Site) [the Concerto site]. I do not recall seeing or hearing from John again...

49    Ms Kemp gave the following evidence about commencing work:

21.    At or around 7:00 am [on 3 September 2016], I recall walking into a room on Site and saw approximately four people (I do not know their names) seated around a table in the centre of the room, none of whom I recognised. I also saw a woman (I cannot now recall her name) seated behind another desk which had a computer and some paperwork on it. I took a seat at the table; I did not speak to anyone.

22.    A short time later, I saw the woman get up from her desk, and hand out paperwork to all of the people seated at the centre table (though I cannot now recall what the documents were labelled or how many documents were provided to us). I recall reading the documents given to me, but that I did not understand most of what was in them.

23.    As I was reading through, the woman started to explain the content of the documents to the group, and whilst I cannot recall the exact words she said, I recall that she discussed safety clothing, not leaving ladders near windows, and the need to sign in and out of the Site each day. I don’t recall anyone telling me what the hours of work would be, nor do I recall any discussion about me being able to work for other contractors.

24.    Once everyone had finished signing the paperwork, the same woman who had initially handed out the documents, collected them again. To the best of my recollection, I did not receive a copy of the documents that I had signed during or after the meeting.

25.    The final aspect of the Site induction was being provided with a time code. Each person was given their own unique code. I recall that the woman said to the group in substance that:

(a)    when signing in and out of the Site, each worker was required to place their finger on a scanner, and enter the time code; and

(b)    the purpose of the time code was to record the hours that each person worked on Site.

26.    At the end of the pre-start meeting, I recall that each person in attendance was assigned to a “team” on Site. I was assigned to the “silicone team”.

27.    At this time, Denby Jackson (Denby), the Site supervisor, introduced himself to me. I recall that one of the first things Denby said to me was “there are no mobile phones on site unless you’re ringing your supervisor, or it’s an emergency”.

28.    As Denby was walking me out of the Site induction and onto the Site proper, I recall him saying to me (though I cannot now recall the exact words) that the “silicone team” performed three main tasks, being:

(a)    silicone sealing and grouting;

(b)    window protection;

(c)    water proofing.

I had never performed any of these tasks before.

50    Ms Kemp gave the following evidence about the jobs she performed and the nature and level of the supervision engaged in by others over her work:

33.    After my first day, I recall working largely unsupervised on Site. If there was ever a time I thought I had not completed a task correctly, or I was having issues with my work, I would speak to the Asian lady, and she would tell me if something was wrong, or if I needed to fix things.

34.    My work involved me filling in gaps in the joins between the walls and the ceiling, and the walls and the floor, with silicone. I also started to do “grouting” work, which was very similar to “silicone sealing”. I recall that Amy would tell me that I needed to complete particular targets or amounts, something along the lines of “X meters per hour”, though I cannot now recall what these targets or amounts were.

35.    I recall that from time to time, a supervisor, Amy O’Grady (Amy), would tell me that I wasn’t going as fast as she would like, and that I wasn’t reaching the goals on the Site. By that, I took it to mean I was working slowly. Amy never showed me an alternative way of doing things, she just told me that I needed to work faster to hit the particular targets or amounts.

…    

37.    The last of the three tasks I was required to perform was “window protection”. This seemed to me to be a slightly more intense task than the others. This was because anytime I did “window protection”, I was required to attend a meeting with all of those workers who were to be involved and the supervisor, Stephen Rush (Stephen), to clarify the scope of work, and each person’s role.

38.    I had never done “window protection” work before. I recall that I was shown how to do it by Amy. I recall anytime I needed help with “window protection” work, including applying extra tape, Amy would assist me.

39.    I recall that at the end of any day where “window protection” tasks had been undertaken, Stephen would inspect the window, and mark down the amounts of window that had received protection. I do not recall ever being told what he was doing this for.

40.    I used my mobile phone on the Site from time-to-time, mostly to send texts to Jessika to arrange to eat our food on breaks; my mum, to let her know my finish times; or a supervisor. I recall that one time whilst I was waiting for the elevator to take me up to start “window protection” work, Denby saw me using my mobile phone and said something like “get off your phone”.

51    She gave the following evidence about her rates of pay and hours worked:

41.    I was paid for the time that I was on Site, which was recorded by me using my fingerprint and time code on the Site’s sign in/out system. I was not paid in accordance with the work that I completed, and I never issued an invoice.

42.    Payment for the hours that I had worked was put into my bank account on a weekly basis by electronic funds transfer. At the time, I was not concerned about calculating the rate I received against the hours I had worked, or the amount deducted for tax or superannuation - I was just happy that I was receiving money. I do not recall ever receiving a payslip whilst I worked on the Site. I have reviewed the copies of my payslips that were provided to me... They are true and accurate copies of my payslips.

43.    The hours of work were set on the Site, being:

(a)    Monday through Thursday, 7:00 am to 4:45 pm;

(b)    Friday, 7:00 am to 3:45 pm; and

(c)    Saturday, 7:00 am to 12 noon.

44.    I knew that I needed to be at work for those hours and on each of those days because it was mentioned in the Site induction, and because any day that I was not going to be on Site, I needed to notify Denby. I recall that people I worked with on the Site had explained to me that you needed to notify Denby if you weren’t coming in on a particular day. I discuss this in more detail at 49 to 53 below.

45.    My Dad also kept a similar routine of work hours, and he would often drive Jessika and me to work, though there were [times] I would often drive myself. Any time that I did drive myself, I would park at one of the nearby car parks and pay anywhere between $10 and $15 for a day ticket. I recall that Jessika told me that if we handed the parking tickets to the office administration team on Site, we would be reimbursed $10 for each ticket we had to pay. I recall that I only asked to be reimbursed for parking once or twice.

46.    If there was ever a time where I was unable to complete particular work scopes within my shift, for example, if a room or area had other trades moving in to work on the next day, I recall that it was recommended to me by people in my area that I stay back to complete my work. This meant that I would sometimes work on Site until 6:00 pm (though I cannot now recall on what dates or how many times I had to stay back late).

47.    If there was ever a time I didn’t know how to perform a particular task, I would speak to a supervisor on the Site, sometimes the Asian lady, or Amy.

48.    I was paid $17 per hour for all the hours that I worked on Site. I never considered asking for a pay rise on Site; I was inexperienced, and did not feel like I was performing to a level that warranted it.

52    During cross-examination, Ms Kemp conceded that she could have been mistaken about working until 6 o’clock.

53    Ms Kemp gave the following evidence about taking leave:

49.    In the event that I ever needed time off, which might have meant me starting late, leaving early, or me being unable to work a whole day, I was required to text or call Denby either the night before, or early that day. I recall that I took some time off whilst on Site, including:

(a)    two days because of personal illness; and

(b)    three days which I used to celebrate my 18th birthday.

50.    I recall that when I took sick days, I sent text messages to Denby early in the morning, at or around 5:00 am, letting him know that I would not be on Site on that particular day. I did not receive payment for each of the days that I was sick, and I was not required to source a replacement worker. I have since changed my phone number, and no longer have these text messages.

51.    I recall that when I took the days to celebrate my 18th birthday, I spoke directly to Denby beforehand. We had a conversation to the following effect

Me: I’d like to take some time off.

Denby: What days do you want?

Me: I’d like to take three days off, from Thursday, 13 October through Saturday, 15 October.

Denby: What do you need it for?

Me: It’s for my birthday.

Denby: Oh, for your birthday... a big birthday then. I’ll get you a form.

52.    I recall that both Denby and I were required to sign a form that identified the days that I would not be at work. I was not given a copy of the signed form.

53.    I did not receive payment for each of the days I took to celebrate my 18th birthday, and no one asked me to source a replacement worker.

54    In her affidavit of 17 May 2019, Ms Kemp added the following in respect of her interview:

8.    I recall that shortly after the interview started, John put a number of documents in front of me. There was one copy of the documents – John had the copy at first, and then handed them to me.

9.    I recall that he summarised points from each document out loud. I can’t recall exactly, but at most, I would say he spent no more than a couple of minutes talking to each document.

10.    I recall that when he was done summarising the documents, he requested that I complete my safety questionnaire, and that he would leave the room to allow me to do so. John handed me a pen and pointed to where I was expected to sign on each of the documents he wanted me to sign, asked me to read through the safety questionnaire, and then left the room.

11.    Throughout the interview, John never said anything to me about me being able to take any of the documents away to review. I didn’t feel like I could ask to take the documents away to review.

12.    As I said in paragraphs 12 and 13 of my First Affidavit, I recall signing the Administrative Services Agreement (ASA) which referred to me being an “independent contractor”, however I don’t recall it being discussed. I understood that I was going to be working on a construction site and being paid an hourly rate.

13.    John never said anything to me about me having an ability to reject work, or about me being allowed to accept work with other contractors.

14.    At the end of the interview, John collected up all of the documents from the table. John did not offer to provide me with a copy of the documents.

15.    My interview with John lasted approximately 30 minutes.

Evidence of Mr Lyall Reece James

55    Mr James was engaged by Construct in September 2015. At the time, he was 19 years old.

56    In around September 2015, a friend of Mr James told him about Construct. He offered to give him a high-vis shirt, a hard hat and some steel-capped boots, told him that he would need a “white card” and gave him the mobile phone number of Mr John van der Plas, of Construct.

57    On 21 September, Mr James obtained his white card, and contacted John van der Plas. They then had the following discussion:

I said: I’m a friend of Jake Roberts who works with you, and he has given me your number. I’m just calling to see if there are any jobs available?

John said: Yeh, there are. What tickets do you have?

I said: I’ve got my white card.

John said: What experience do you have?

I said: I haven’t done construction work before, except for some bricklaying work for a relative.

John said: OK. Why don’t you come in for an interview; I’ll set one up in the next couple of days.

58    On 23 September, Mr James went for an interview at Construct’s office, where he met with Mr Todd Marshall. Mr James, in his affidavit affirmed 8 March 2019, said the following about his interview:

10.    …Todd and I had a conversation that lasted approximately 30 minutes, very general in nature, where we mostly discussed my background. I recall Todd being particularly interested in my involvement in “freerunning”, and an injury I sustained to my knee as a result (an ACL tear) which required surgery and a full knee reconstruction.

11.    I recall that toward the end of the interview, Todd handed me a copy of the ASA and some other documents, including a medical declaration, tax file number declaration, and superannuation fund details, and said words to the effect:

‘This is our standard agreement. Just give it a read, and sign it if you’re happy with it, and then we’ll get you to fill out some other forms so you can get paid.’

…

12.    I recall Todd handed me a pen and pointed to where I was expected to sign. I didn’t feel like there was any opportunity for me to take it away. The ASA referred to me being an “independent contractor”, however I didn’t think anything of this because at the time, I didn’t know what an independent contractor was, and I’m still not sure I completely understand. I read through the ASA, and signed it.

13.    As it was my first job in the construction industry, I believed that Todd’s comment, being that the ASA was their “standard agreement”, meant that I worked for the Respondent and that they would pay me to do construction work.

14.    Toward the end of the interview, Todd and I had a conversation to the following effect:

Todd said: So what is your availability to work on weekends?

I said: Pretty good. I don’t have anything on.

Todd said: And what about safety at work - what does that mean to you?

I said: I guess it means not getting hurt, and not doing anything stupid.

Todd said: Sure. Well, on these sites, you need to wear all the right PPE, like high-vis shirts, safety boots, hard hat, that sort of thing.

I said: I have all of that stuff already.

Todd said: OK. Well, we’ll give you a call.

I said: Would it be possible to work on the Maylands job with my friend, Jake Roberts?

Todd said: Ah, I’m 50:50 on that one, but I’ll see what I can do for you.

15.    After I left the interview, it wasn’t clear to me whether I had actually secured a job. This is because the interview had ended with Todd saying he would call me. I recall sending a text message to Jake and telling him about the interview, and how I thought it went. Jake replied saying it was most likely that I’d gotten the job. I no longer have a copy of this text message.

59    During cross-examination, Mr James confirmed that he was given documents throughout the meeting and that he and Mr Marshall spoke about free-running “in between as I was reading the documents” (at T 313, line 9). In a second affidavit, of 15 May 2019, he also stated that “Todd never said anything to me about me having an ability to reject work. In fact, on the basis of Todd’s comments during the interview, I felt it to be quite the opposite.”

60    Mr James commenced work as a labourer on the “Unison site” at 2 Tenth Avenue in Marylands on 12 October 2015. He gave the following evidence about starting work:

18.    … I recall that the pre-start meeting was conducted by the Site Manager, Denby Jackson (Denby) …

…

20.    Denby provided all of the new starters with paperwork that, as best as I can recall, included the “site rules” (Site Rules), and a safety induction test. Denby also showed us a document on the wall which I recall had the names and pictures of people working on the Unison Site, including managers, supervisors and first aid attendants, and all of their phone numbers. Denby told us to save his phone number so that we could contact him with any issues, including if we were going to be late to work, or were unable to come in to work at all.

21.    The Site Rules stated, amongst other things, that mobile phones weren’t allowed to be used during work hours. I can recall Denby telling us all that unless it was contacting another person on the Unison Site for work-related issues, or it was an emergency, anyone using a mobile phone would be fired.

22.    I recall that Denby told us that the regular hours of work were:

(a)    Monday through Thursday, 7:00 am to 4:45 pm;

(b)    Friday, 7:00 am to 3:45 pm; and

(c)    Saturday, 7:00 am to 12 noon.

Denby told us all that we could take two half-hour breaks, one at 9:30 am, and the other 1:00 pm. I worked these hours and took these breaks…

23.    Jake had already told me that the regular hours of work from Monday through Saturday were mandatory, but that sometimes the finish time on a Saturday would change on the day, meaning some days it would be earlier and some days it would be sometimes later. Jake also told me that the break times often shifted as well, meaning you could work through a break time to take it at a later time, however the length of the break was always 30 minutes.

61    Mr James gave the following evidence about his work, his supervision while at the Unison Site, both by Todd Marshall and Amy O’Grady, as well as conversations he had about his pay:

25.    At the conclusion of Denby’s Unison Site walk, I was introduced to a Supervisor, Amy O’Grady (Amy). Amy told me that my first task would be “floor grinding” with a “floor sander”. I had never done this work before, but Amy provided me with some training. I performed this work for the better part of the day, and undertook some general cleaning duties for the remainder.

26.    Amy would check my work. I recall she would walk around the Unison Site with a clipboard and would often write things down after checking the work I had done, or speaking to me generally. If there were issues with my work, for example if there was an area within a room that had rough patches or bumps, Amy would ask me go back and re-do the task. I was never provided a copy of what she wrote down.

27.    Todd met me at the conclusion of my first day on the Unison Site. I recall he checked that I was wearing the correct clothing, asked me how the day had been, and asked what work I had done that day and whether I had enjoyed it. I recall that I responded that I had been doing floor sanding, and that I had enjoyed it. I recall that Todd had a form, and was ticking things as we spoke. I did not see the form, and was not provided with a copy.

28.    After the first day, I only saw Todd on the Unison Site from time-to-time, generally when there were new workers starting. He would always say hello, and ask me how I was going.

29.    I recall that on the Unison Site, I had heard that people got a pay rise once they reached a particular age, being 20 years of age. I would hear this during conversations with colleagues during my breaks. When I turned 20 years of age, I stopped Todd and asked him whether it was true, and whether I would get one. Todd told me that it was true and asked me what age I was, and then I recall he wrote something down on a piece of paper. I was not provided a copy of what he wrote down, but I recall that shortly after, my pay rate increased increase from a flat amount of $20 per hour to $22 per hour.

30.    Each day that I worked, I was required to attend the pre-start meeting, which continued to be run by Amy. Generally speaking, Amy would tell me what tasks I needed to do. However, after a few months on the Unison Site, I felt comfortable just going to teams that I knew needed help. For example, if the bricklayers needed help, I would approach them offering my assistance; if they said yes, I would work with them. I don’t recall Amy ever having an issue with this approach, however if Amy ever came to me asking me to assist with a specific task, I would always go with her and do the task she requested.

31.    During my time on the Unison Site, I performed a number of general labouring tasks, all of which were new to me, including:

(a)    Floor sanding;

(b)    Grinding, using a hand grinder;

(c)    Landscaping and gardening; and

(d)    General cleaning.

62    In January 2016, Mr James was told that he, and others, would be moved to new Construct site at 269 James Street in Northbridge (the Linq Site). He continued to work there in more or less the same fashion and under the same conditions as he did at the Unison Site.

63    In May 2016, Mr James was told that he would be moved to a new construction site at 189 Adelaide Terrace in East Perth (the Concerto Site). Again, he continued to work in more or less the same fashion and under the same conditions as at the Unison Site, although “[t]he main difference was that in the early stages there was little or no scaffolding work being done, so I was not assisting with the scaffolding tasks.”

64    During his time at the Concerto Site, he asked Denby Jackson about a pay rise. His pay rate then increased to $23 per hour. He also gave evidence that he was more frequently asked to stay back late because of late deliveries of scaffolding equipment.

65    While at the Concerto Site, Mr James went about getting his “scaffolding tickets”. Construct paid for it. He was paid $100 for each day that he was doing that training. When he commenced work again at the site, he began doing scaffolding work, and then, following another conversation with Denby, received another pay rise, to $25 per hour.

66    Mr James finished work at the Concerto Site in December 2016. He later found work through Construct at the “Aire Construction Site” for two weeks in May-June 2017.

67    Mr James gave the following evidence in respect of taking time off:

74.    In the event that I ever needed time off, which might have meant me starting late, leaving early, or me being unable to work a whole day, I was required to text or call Denby either the night before, or early that day. I recall that Denby told me this in the Unison Site induction, and it was also in the Site Rules which were issued to me at that the commencement of each new site, and that I was required to read.

…

76.    I recall that when I took the days because of personal illness, I would send text messages to Denby early in the morning, around 7:00 am, letting him know that I would not be at work on that particular day. I did not receive payment for each of the days that I was sick, and I was not requested to source a replacement worker.

John van der Plas

68    Mr John van der Plas gave evidence in his affidavit of 1 May 2019 that he has worked for Construct since 22 September 2003. Between August 2016 and 2018, Mr Wieske was his direct supervisor, however during this time Mr van der Plas was in charge of the day-to-day running of the business.

69    Mr van der Plas gave evidence in respect of Construct’s approach when engaging minors, as follows:

Minors

54.    It is not Construct’s normal practice to engage workers under the age of 18.

55.    I have reviewed Construct’s records to determine how many minors were engaged in 2016-2017 and are presently engaged. Only 6 minors were engaged as independent contractors by Construct, including Ieasha Kemp and Jessika Robinson-Dernie, in 2016 and 2017. Only one minor is presently engaged by Construct.

56.    We would normally only engage a worker under the age of 18 as requested by their parents, who are known to us because they are usually subcontractors of our construction clients or were previously independent contractors through Construct.

70    Mr van der Plas also gave evidence in respect of his interviewing Ms Lee (née Robinson-Dernie) and Ms Kemp:

Jessika Robinson-Dernie

57.    I have reviewed the Registration Form that I completed on 8 August 2016 to refresh my memory. That form indicates that Jessika was referred to Construct by Steven Kemp who I believed was Jessika’s father. Steve Kemp in 2016 and at the time of swearing this affidavit, was and is a subcontractor to Hanssen and has worked for many years as a ceiling flushing plasterer …

58.    I recall that Steve Kemp had called me sometime in early-August 2016 to let me know that he had spoken to Darren Linton, a site administrator at Hanssen’s Concerto site, who had suggested that Steve contact Construct to get Jessika work. I also remember receiving a call from Tammy Kemp, who I know is Jessika’s mum and Steve’s wife, after the call from Steve. During that call, she said Jessika was looking for work and confirmed that Steve had spoken to one of the Hanssen supervisors on the Concerto site. I recall Tammy saying that she was keen to get Jessika out of school but needed to have her in work before she could leave school. I told Tammy to have Jessika come into our offices for an interview at 10:00 am on Monday, 8 August 2016.

59.    After receiving the calls from Steve and Tammy, I recall that I telephoned Denby Jackson at the Concerto site to check whether he or Darren Linton had spoken with Steve about Jessika working at the site. Denby confirmed that he had spoken to Steve and would try to find Jessika a job.

60.    I recall Jessika attending Construct’s offices on 8 August 2016 because she came in with her mother, Tammy, and a toddler was in the care of Tammy. I introduced myself to Tammy and Jessika and invited Jessika to come into the interview room where I could conduct the interview and where she would be able to complete the safety induction test along with the other relevant documents. I don’t recall whether Tammy asked if she could sit in on the interview. If she had asked, I would have responded by saying we’ll be doing a one on one interview as there was also a safety induction test that Jessika needed to complete on her own.

…

62.    I don’t recall but it is possible I did say words to the effect that Jessika had a job already as I had already spoken to Steve Kemp and confirmed with Denby Jackson, that there was work for her. However, even though Jessika already had work lined up, she was still required to attend a formal interview and to go through the process, which included having the way Construct operates explained to her and completing the safety induction test and other documents, before I was prepared to engage her as a contractor. Every interview I conduct is a formal interview. If Jessika hadn’t completed the documents or failed to complete or understand the safety induction questions, she would not have been offered work through Construct on the Hanssen site. For example, if I had identified that she had a previous injury or had been involved in a car accident and was unable to do manual labour, I would have completed the interview but for her own safety and that of other contractors, I would not have recommended to Hanssen that she be offered work.

63.    Although I do not recall what I specifically said during the interview, I would have gone through the same process with Jessika as every other interview I complete and with the same detail as I have described above. After my general introduction to the process where I explained how I would conduct the interview, consistent with my usual practice, I would have advised Jessika that there were a series of documents that she would have to read and complete. I then provided Jessika with the following documents:

(a)    The FAQs. I would have given the FAQ document to Jessica saying that the document would explain and answer any questions she may have about working through Construct, and how we operate as a contracting agency. I would have told her that the FAQ is for her to read and she can take it home to keep, as it has Construct’s and each of the Client Representatives’ contact details for her reference.

(b)    The Guide. I would have taken Jessika through the document dot-point by dot-point including detailing how Construct is a contracting agency and how workers are engaged as self-employed independent contractors. I would have told Jessica to read and to take the Guide home with her as I have always done and continue to do;

(c)    The Contractor Safety Induction Booklet. As is my general practice, I would have asked Jessika to read the “Safety Induction Questionnaire” document and to answer the questions using the Booklet for the required answers and not to hesitate to ask me any questions she may have. I would have said she needed to complete the “Acknowledgement” on page 9 of the Booklet to confirm she had read and understood the safety requirements…

(d)    The ASA. Consistent with my general practice, I would have taken Jessika through this document and explained that the document detailed the terms and conditions of her engagement as an independent contractor. … ;

(e)    The Medical Declaration Form. … When preparing this affidavit I have reviewed this [form] and I note on the second page of that document is the Privacy Declaration signed by Jessika and where she has filled out her emergency contact details. Jessika signed and dated the document and chose to have her superannuation paid into Construct’s default superannuation fund;

(f)    The Tax File Number Declaration form. ...

64.    In going though these documents I would have followed my standard practice of explaining the contents of each document carefully, especially considering that Jessika was young and just out of school. I would have said to her if there is anything you don’t understand or have any questions feel free to ask at any time.

65.    During my interview with Jessika, as was my standard practice, I would have asked Jessika a series of questions and I recorded my answers on Construct’s “Interview Questions” form...

66.    The meeting would have gone for about an hour, possibly even a little longer, as having conducted many interviews over the years I know that an interview takes at least an hour to complete. As I have said above, the introduction of all of the documents alone takes approximately 20 minutes, the completion of the safety induction questions takes the applicant the best part of 30 minutes, and the reading of and completion of the general documentation including the ASA and Medical Declaration form and obtaining the applicant’s banking and superannuation details takes approximately 20 minutes.

67.    Jessika’s interview did not include a drug test.

68.    After the interview, I completed the back of the Interview questions, ticking:

(a)    the box noting that I had issued Jessika for her records a copy of the FAQ and the Guide;

(b)    the box noting that I had taken Jessika through the Safety Induction Booklet and that she had completed the Safety Induction Questionnaire.

69.    After the interview, I arranged for one of Construct’s administration staff to enter Jessika’s details in our applicant database.

70.    On 12 August 2016, I received a text message from Tammy advising me that she had sent me an email with a copy of Jessika’s White Card... Soon after the first text, I received another text message from Tammy where she advised me that Jessika asked her to let me know that she was ready to work as of Monday if there was any work available, as well as thanking me for all my help...

71.    As I knew that Steve Kemp had spoken to Denby Jackson about Jessika obtaining work at the Concerto site, I rang Denby to confirm that I had interviewed Jessika and she was available and ready to work if there was any work available. Denby advised that he could start Jessika as a lagging trainee. As was my general practice, I created a Job Order form following that telephone discussion.

72.    After completing the Job Order form, I telephoned Tammy to advise her of the offer of the work that was available for Jessika at the Concerto site. I recall that Tammy said that she would send me a text with Jessika’s mobile number for me to send her the details directly and she also asked me to send the same text to her mobile in case Jessika didn’t receive it. I recall that Mrs Kemp said that Jessika had just got a new mobile phone.

73.    After I received Jessika’s mobile number, I called Jessika with the offer of work as trainee lagger. She verbally accepted the offer over the phone and I said that I would send her a text message confirming the details. As Jessika had accepted the work, I completed the Job Order form and sent Jessika a text message confirming the site details. Jessika later confirmed she understood when she replied to my text...

74.    On 18 August 2016, I was copied into an email sent by Mr Marshall to the Concerto Site Office confirming that Jessika would be starting working on the site on Friday, 19 August 2016...

75.    I do not recall having any involvement with Jessika after she agreed to accept the work offered to her on the Concerto site until I received a text message from Tammy on 29 September 2019 advising that Jessika had lost her position at Concerto...

…

77.    The hours recorded as worked on Jessika’s Payment Advices are based on the hours Construct received from Hanssen’s site administration. …

78.    Once Construct receives the record of hours worked from Hanssen the hours are processed and recorded by payroll. The necessary tax deductions are withheld and the Superannuation guarantee levy of 9.5% is applied. Payments are recorded and sent to Bank for Electronic Funds Transfer every Wednesday morning. Every contractor has their Pay Advice sent to their email unless they have advised Construct to send via post.

Ieasha Kemp

79.    On 24 August 2016, I received a missed call to my mobile followed by a text message from Tammy Kemp advising me that her other daughter, Ieasha Kemp (Ieasha), was interested in getting work through Construct. I responded to the enquiry by telling Tammy to get Ieasha to text me as soon as she had obtained her White Card and I sent her a copy of an electronic business card for Paragon Corporate Training so Ieasha could obtain her White Card. Later that day, I received a further text message from Tammy advising that Ieasha had already completed and paid for the White Card course. I responded by saying that I would arrange an interview with Ieasha at 1 :30pm on Friday, 26 August 2016, and I asked for Tammy to arrange for Ieasha to send me a copy of her resume by email ...

80.    On 25 August 2016, I received an email from Ieasha attaching her resume…

81.    On 26 August 2016 I completed a Registration Form for Ieasha prior to her interview ... I would have filled out as much of that form as I could have completed after receiving Ieasha’s email and I would have completed the rest of the form during our interview later that day.

82.    I remember Ieasha attending Construct’s offices on 26 August 2016 for her interview because she also came in with her mother. I greeted Tammy and introduced myself to Ieasha and invited her into the interview room.

83.    While I recall Ieasha attending the interview, I do not recall specifically the words I said. I don’t recall saying to Ieasha words to the effect that she already had “a job”. I doubt I would have said that because, unlike Jessica, no offer of work for Jessica had yet been confirmed from any of the Hanssen sites or any other of our construction clients.

84.    It is also unlikely that I would have said “This isn’t an interview’’ as the reason I had asked her to attend Construct’s office was to interview her. I do, however, remember saying something like “your sister didn’t have a problem with her interview and you have no reason to be nervous.”

85.    After my general introduction to the process where I explained how I would conduct the interview, consistent with my usual practice, I would have advised Ieasha that there were a series of documents that she would have to read and complete. I then provided Ieasha with each of the documents that I had provided Jessica. Consistent with my standard practice, I would have provided them in the same order, starting with the FAQs, the Guide and the Contractor Safety Induction Booklet, and with the same explanation. …

86.    During the interview, consistent with my standard practice, I would have asked Ieasha a series of questions and recorded my answers on Construct’s “Interview Questions” form. …

87.    For the same reasons I have said above, the meeting would have gone for about an hour. Ieasha’s interview did not include drug testing.

88.    After the interview, I completed the back of the Interview questions, ticking:

(a)    The box noting that I had issued Ieasha for her records a copy of the FAQ and the Guide; and

(b)    The box noting that I had given and taken Ieasha through the Safety Induction Booklet and that she had completed the Safety Questionnaire.

89.    After the interview, I completed the general comments on the interview observation document and placed the documents in my document tray and noted I was still waiting for Ieasha’s White Card.

90.    On 29 August 2016, Tammy sent me a text message advising that Ieasha’s White Card had arrived and a copy of the card was attached to the same message. ... After I received Ieasha’s White Card from Tammy to complete her documents and interview process. I arranged for one of Construct’s administration staff to enter Ieasha’s details in our applicant database.

91.    After receiving the text message form Tammy, I was aware that a Job Order was open from Denby Jackson at the Concerto site for a Silicon trainee. I advised Mr Marshall that I had recently interviewed an applicant who would be suitable for that job.

92.    After my discussion with Mr Marshall, I recall that I telephoned Tammy to advise her that I had found work for Ieasha if she wanted the job. Following my call, I sent Ieasha and Mrs Kemp a text message confirming the job and site details for Ieasha starting the next day. Ieasha later replied via text to confirm she received my text message. ... I then completed the open Job Order form.

93.    Later that day, I was copied into an email sent by Mr Marshall to the Concerto site office confirming that Ieasha would be starting working on the site on Tuesday, 30 August 2016….

94.    I do not recall having had any further involvement or further contact with Ieasha while she worked on the Concerto site.

71    During cross-examination, Mr van der Plas agreed that he would only have spent about two minutes explaining the ASA (at T p 346, line 5).

Todd William Marshall

72    Mr Todd William Marshall is employed by Construct as a Client Representative, and has been since June 2006.

73    He gave the following evidence about the rates of pay Construct offers workers, how these can be negotiated, and how workers are paid:

21.    The rates which Construct pays workers on Hanssen sites are usually first set by us prior to the contractor starting on site and are based on a framework agreed between Construct and Hanssen. It is Construct’s pay rate framework, and we also pay contractors working for other builders the same or similar rates.

22.    It is Construct’s policy that all our individual contractors are free to negotiate an increase to their pay rate directly with their client supervisor on site. I constantly have discussions on site with Construct’s contractors about an increase to their pay rates, and I tell them to speak with their supervisor. Further, contractors are advised when they are first interviewed for work that they are able to request a pay rate increase directly from the builder, which is detailed in the terms of the Administrative Services Agreement at sections 3(d) and 5(a).

23.    Construct pays workers weekly, with the money in the workers’ accounts usually by Wednesday afternoon, depending on which bank the contractor uses. I tell contractors that the money will be in their accounts guaranteed by Thursday.

24.    We pay the workers even if the builder is late in paying or doesn’t pay us. We’ve had builders owing us thousands (I am not privy to the exact information or amount) of dollars and we’ve had to work out arrangements for them to pay us. Even if a builder is behind paying us, we have still paid the workers on time.

74    Of the purpose of the site visits he conducts, and his behaviour in conducting such visits, he gave the following evidence:

25.    The primary reason I attend site to meet with new contractors is to check that they have received a site induction from the builder, have the correct PPE, that there are no safety issues pertaining to what they are doing, that if there are any problems they know who to ask, that they understand what their task or role is on site and that they are receiving instruction from their leading hand in relation to performing their work safely and efficiently.

26.    Each time I attend the site and meet with a newly placed contractor, I complete a check list form... Some of the form is completed in the Construct office from the interview documents, that way I know what further details I need to obtain from the worker on the site. When I catch up with a contractor on site, I fill out the form as I stand with the contractor and I ask them the questions on the front of the form. The contractor is able to see the form as I fill it out and can see what boxes I am ticking. I don’t hide the form from the contractor. Often, other contractors will come over while I am filling a form out with a new contractor because they want to see what the new guy is getting paid per hour. The section headed ‘Acknowledgements’ is also seen by the contractor as I go through the questions with them. The ‘Acknowledgements’ section is there to confirm that the contractor understands their role and their responsibilities on the site. I tick each of the points off under the heading ‘Acknowledgments’ after reading the sentence out to the contractor.

27.    While I am conducting site inspections, I do not exercise any control over the jobs that are being performed by the contractors. I don’t tell contractors what work to do or which job to perform, because it is not my role and I’m not engaged by the builder on the site as a supervisor of the works being performed by the contractor. I do recall that on an early site visit many years ago, when I first started working for Construct, I did show a contractor how to knock out a retaining wall with a sledge hammer. When I got back to the Construct office Mr Wieske expressly told me to never tell or show the contractors how to do their work.

28.    While I don’t exercise any control over the jobs that are being performed by contractors, I do have a duty of care to ensure that contractors work safely and that includes wearing the appropriate PPE. If a contractor isn’t wearing the appropriate PPE on site or is working in a high risk job without the appropriate tickets or licences, I will instruct them to put on the right PPE but, as I have said above, I will not instruct them how to perform any jobs. I’ll go and tell their supervisor that the worker shouldn’t be doing the high risk job if they don’t have the appropriate licence to do so. In section 4(c) of the ASA it lists supplying labour in a ‘safe’ manner as one of the contractor’s responsibilities. Wearing the right PPE for the task would be included in that.

75    He gave the following evidence about the interview process he says he has used since 2006:

31.    After speaking to an applicant on the phone, where I ask the applicant a series of questions about their background, if I find them to be suitable I arrange a time for an interview. I also explain briefly how Construct works as an administrative business and that we engage workers as independent contractors, and that they should set aside at least an hour for the interview as I need to take them through several documents.

32.    During that initial telephone call, I complete some of Construct’s “Registration Form”... At a minimum I will record the applicant’s first and last names, mobile phone number, whether they have a White Card and whether they are prepared to submit to a drug test. I ask the drug test question because although it was not until about September 2017 that Construct introduced its own drug testing, some of our clients have been conducting their own on site drug testing for many years.

33.    Following my initial call to the applicant, I’ll send them a text message to confirm the address of Construct’s offices and the time of the interview. I use text messages a lot to communicate with applicants, contractors and client contacts.

34.    I conduct my interviews as follows.

35.    At the start of the interview with the applicant, I will ask the applicant to provide me with any further details I need to fill out the Registration Form that I may not have obtained when I first contacted the applicant to arrange the interview. I complete the Registration Form myself. I do not give the applicant the Registration Form to complete.

36.    The first document I give to the applicant in the interview is our ‘Guide to work at a glance’ (Guide)… I explain exactly how we, as a subcontract agency operate. I say that we are a contracting agency and that we administer the arrangement between the worker and the builder. I say our workers are “independent contractors”. I say that we are not an employment agency and if they as a worker accept work, they will not receive standard employment benefits. If the worker has some experience with contracting, I say it is similar to ABN subcontracting but you don’t need an ABN and we administer the placement.

37.    If the worker does not have any upfront questions, I then navigate my way around the Guide, explaining each heading and dot-point and I then answer any questions the applicant may have about what we do. Under the heading “Benefits” I explain that the applicant has the choice to accept or reject any offer for work. Most applicants are usually interested in the ‘the bottom line’, that is, they want to know their rate, how much they will take home in their pay and how often they are going to be paid. In answering that or similar questions, I tell the worker that if they are good at their work, they can directly negotiate a rate increase with their supervisor on site. Depending on the applicant’s experience, that is, whether they have a trade or are looking for general labouring work, I may tell them their likely rate. If an applicant has answered a specific job advertisement I will confirm the advertised rate range for that work. For example, a labourer is now likely to be paid $25 per hour. If a client’s site supervisor has referred the applicant to Construct to obtain work, the applicant will sometimes tell me a rate which they have been told and I’ll then confirm that rate with the site supervisor after the interview.

38.    I’m often asked at this stage of the interview “when will my rate go up?” My standard answer is that it is not like a government job, where after three months or a year you may be reviewed and you’ll get a pay increase, rather a pay increase is performance based. I tell the applicant that if the applicant’s supervisor thinks the work he or she is doing is good, the supervisor will advise Construct to pay a higher rate. I also tell the applicant they can negotiate directly with the supervisor whenever they like. I tell the applicant that they can take the Guide home with them. I will also sometimes ask a supervisor to think about giving one of our contractors a rate increase if I think they are worth more based on their experience and output compared to other workers on the site.

39.    I then point the applicant to and take them though the “Frequently Asked Questions” document (FAQ). ... After giving the applicant the FAQ, I ask the applicant whether they have any questions. I tell the applicant numerous times throughout the interview that if they have a question, please ask and I’ll address it. If they do have a question, I’ll answer it with reference to the Guide and the FAQ. If they do not have any questions, I make sure that they take possession of both the Guide and FAQ and I then take them to the next document.

40.    I then show them the “Contractor Safety Induction” booklet and explain its purpose, remove the “Questionnaire” and “Acknowledgement” which are stapled to the Contractor Safety Induction booklet, and I explain their purpose and how to fill them out...

41.    I then leave the applicant in the interview room for at least 10 to 15 minutes to work through the Safety Induction documents and Questionnaire. During that time, I may get a phone call and often check my emails. If this happens, I may leave the applicant for longer than 15 minutes to fill-out their paperwork.

42.    While out of the interview room, I take a photocopy and scan of their photo identification, White Card and any other certificates or licences.

43.    When I return to the room, I go through the Safety Induction Questionnaire answers with the applicant. I then sign the Acknowledgement as a witness and review the applicant’s answers, discussing any questions that they didn’t understand or answered wrong. Until I am confident that they have understood the questions and Construct’s safety requirements, I do not take the applicant to the next document.

44.    I then show the applicant the ‘Medical Declaration’ form and explain what it is and how to fill out both sides... On the back of the Medical Declaration form there is a Privacy Declaration for the applicant to complete and space for them to provide their bank account, superannuation and emergency contract details. If the applicant does not understand how to fill-out the form, I mark the form with an “X” or a line where they need to tick a box or provide details.

45.    I then take the applicant through the “Administrative Services Agreement” (ASA)... I again explain and reiterate how Construct operates as a contracting agency. I explain that the document summarises how the worker is a contractor, and that the ASA details each of the contractor and Construct’s responsibilities. I explain that the ASA is not a binding contract because the contractor does not have to accept any work when it is offered to them by one of Construct’s Client Representatives, and that they are able to work for anyone else after signing the form. I highlight the applicant’s responsibilities. I say that we require them to do a good day’s work and we will pay them for that day. I tell the applicant that they have no obligation to work through Construct for any set period of time. I say “officially” a worker should give 4 hours’ notice if they no longer want to work through Construct but it won’t matter if they don’t. I explain that by signing the ASA they are agreeing that they will only be paid for the hours that they work, and they’re not entitled to sick pay or annual leave. I tell the worker that the engagement is on a day by day basis and that any work offered could be for one day or longer, depending on how they perform their work for our clients and the availability of ongoing work.

46.    After I have taken the applicant through the ASA I again ask them if they have any questions.

47.    I then hand the applicant the “Tax file number declaration” form and often fill-out questions 5-9 on the right hand side of the form for the applicant after asking them questions...

48.    If the applicant is not an Australian or New Zealand Citizen, I have them fill out an ‘Authority to Obtain Details of Work Rights Status’ form...

49.    After going through those documents, I then again leave the applicant alone for about 5 to 10 minutes to read and complete the ASA, Medical Declaration form, the Tax file number declaration form and the Authority form (if required).

50.    I then return to the interview room, review the above three or four documents and sign the ASA as a witness. Unless they have elected on the back of the Medical Declaration form to go with Construct’s default superannuation fund – Australian Super, I then hand them the “Superannuation Standard choice form” and discuss that form with them...

51.    I am now also required to fill out a “Drug Screen Chain of Custody” form and have the applicant sign that document to have them give consent and guide them to the toilet where I conduct the drug test. As far as I can recall we started testing in September 2017. Prior to September 2017 we didn’t conduct drug tests as part of our standard procedure.

52.    After I have reviewed the bundle of forms completed by the applicant, I then go through the questions listed on the “Interview Questions” form. ... Where it asks about ‘any pre-existing conditions’ I have a conversation with the applicant about their sporting activities or whether they have had any previous car or work accidents. After filling out the form, I tell the applicant that that concludes the interview and I shake the applicant’s hand and wish them well.

53.    I rarely promise anyone a job or definitive start time at the interview, unless the applicant has been referred by a supervisor of one of our clients.

54.    Prior to the introduction of drug testing, the whole interview would usually take about 45 to 60 minutes. It is my practice to take the applicant through each document and regularly ask whether they have any questions. This means previously all of my interviews took at least 45 minutes. My interviews now take even longer due to the drug test procedure and may take as long as 90 minutes.

55.    After the applicant has left, I then go and fill out the reverse side of the “Interview Questions” form under the heading “Interview Observations” with my thoughts and observations regarding the applicant. On rare occasions, if I have had many interviews in one day, I may fill this part of the form out a day or so later.

56.    The above process that I have detailed is the process that I follow for all of my interviews with applicants that want to work through and obtain work from Construct.

76    Mr Marshall gave the following evidence about his interview with Mr James:

57.    I recall interviewing Lyall James (Lyall) in September 2015. Before the interview, I remember Jake Roberts who worked as a contractor through Construct at the Unison site in Maylands, with his uncle Glen, telling me that his mate Lyall was available to work. I was primarily looking after the Unison site in 2015.

58.    I cannot recall calling Lyall to set up the interview but I would have called him at some point... I would have arranged that interview by phone. I do not recall how I came to have Lyall’s phone number.

59.    I do not recall whether or how much of the Registration Form I filled out when talking to Lyall on the phone, however, it is likely that, consistent with my general practice, I would have asked Lyall some questions on the phone and filled-out some of the front of the form when asking him to come in for an interview. In that discussion with Lyall I would also have explained Construct’s business including that Construct provides a service as a contractor administration business and that Construct’s workers are contractors not employees.

60.    Even though I had arranged for Lyall to come in for an interview, I would still have sent him my standard text message confirming the date and time of our interview. I have searched my mobile phone and I am unable to find a copy of that text message, I think I got a new phone around September 2016.

61.    While I recall interviewing Lyall because we talked for a while about his ambition to become a parkour free-running action movie star and because he was friends with Jake Roberts, I do not recall specifically what was said. However, after our discussions about parkour and after asking some general introductory questions, consistent with my usual practice, I would have completed the Registration Form if I didn’t get all of the required information over the phone initially and I would have advised Lyall that there were a series of documents that he would have to read and complete. I then provided Lyall the following documents:

(a)    The Guide… As is my general practice, I would have explained this document to Lyall and said that he could take and keep a copy of the document for his records;

(b)    The FAQs document… As is my general practice, I would have explained this document to Lyall and said that he could take and keep a copy of the document for his records;

(c)    The Contractor Safety Induction booklet … I would have explained to Lyall that he needed to read the document to ensure that he understood workplace safety on construction sites;

(d)    The Contractor Safety Induction Acknowledgement… I witnessed this document;

(e)    The Contractor Safety Induction Questionnaire…

(f)    The Medical Declaration Form and Privacy Declaration…

(g)    The ASA... As is my general practice, I would have explained this document and then asked Lyall sign the form. I witnessed his signature;

(h)    The Tax File Number Declaration form... Section A was completed by Lyall during the interview;

(i)    The Superannuation Standard Choice form...

62.    I would have gone through all of these documents and explained them in the same way as described above between paragraphs 34 and 56.

63.    After I had explained all of the documents to Lyall, I would have given him an opportunity to answer the questions in the Safety Induction Questionnaire while I went and took a photocopy of his identification... At this point of my interview, I would also usually take a copy of the applicant’s White Card and any other tickets or licences. However, at the time of the Lyall’s interview, he did not have his physical White Card with him.

64.    At the end of our interview, I asked Lyall the standard questions and recorded my answers on Construct’s “Interview Questions” form...

65.    I cannot recall the exact length but it was likely that my interview of Lyall went for at least an hour, possibly longer given the number of documents I explained and the time I would have given Lyall to complete the documents.

66.    At the end of the interview, I would have informed Lyall that I would be happy to offer him work if and when the next job became available.

67.    After the interview process, I entered Lyall’s details into the Construct contractor database.

Ms Amy O’Grady

77    Ms O’Grady gave evidence in an affidavit of 5 May 2019. Ms O’Grady works as a finishing foreman (as an independent contractor) with Hanssen, having worked in that role since November 2017.

78    She gave the following evidence of her role in relation to Construct.

7.    The process which I followed for obtaining workers from Construct usually involved the following steps:

(a)    first I would identify a need for labour on site. I would usually speak to the Site Foreman to agree on the labour that is required;

(b)    once this was agreed I would then contact a representative from Construct to enquire whether they had anybody available that they could supply to the site;

(c)    Construct would then let me know if they had a worker available at that time or whether they needed to recruit someone. This would usually be done by phone;

(d)    Construct would tell me about the worker they proposed to send to the site; and

(e)    if I had no concerns about the worker Construct had proposed, Construct would then send an email to the site administrative staff (copying me in) to confirm the worker’s start date on the project and their rate of pay.

79    She gave the following evidence in respect of the Hanssen construction project known as the “Concerto Project”:

10.    The contractors engaged on site were a mixture of subcontractor companies who engaged their own workers, and individuals working for themselves through their own companies and who were engaged directly by Hanssen. Other workers were supplied by labour hire companies such as Construct.

11.    Some individuals on the site wore uniforms from their own companies, and these were usually those engaged through the larger contractors such as the electrical contractors or framers. No one wore a Hanssen uniform. None of the workers provided by Construct wore a uniform either.

…

Work performed on the Concerto project

17.    Work on the project commenced at 7.00 am from Monday through to Saturday. Everybody on site had to attend a pre-start meeting in the smoko room in basement 1. All contractors were required to attend that meeting, without exception. At the pre-start meeting, the Site Foreman, Denby Jackson, would go through the main things happening on site that day and identify any issues that had arisen over the previous day that workers needed to be aware of. He would also discuss any safety issues.

18.    After the pre-start meeting, everyone then disbursed into groups (usually by trade) directed by a Leading Hand. The Leading Hands reported to the various foremen on the site. Some workers didn’t report to a Leading Hand and would report to a Foreman.

19.    From Monday to Friday the lunch break was then taken between 1.00 pm and 1.30 pm, which was an unpaid break.

20.    From Monday to Friday everybody then usually clocked off at 4.45 pm, except for Friday, when the clock off time was 3.45 pm. On Saturday the clock off time was 12.00 noon. The site was, however, open from Monday to Saturday until 6.00 pm if further work was needed to be done that day. No contractors were allowed to remain on site after the scheduled clock off time unless supervised by a Foreman or Leading Hand.

21.    There is one situation of which I am aware when workers including Construct workers might stay later than the site closing time of 6.00 pm, Monday to Saturday. If a delivery came in late and a crane was off-loading materials the relevant Foreman or Leading Hand and any required workers would stay until the materials had been off-loaded.

…

Direction of workers

28.    When the Construct workers first arrived on site, they were given an induction by Hanssen. The first step was to be given a site safety induction form that set out:

(a)    important site details such as site hours, break times, regular meeting times and contract (sic) phone numbers;

(b)    site rules (that stated that any breach of site rules will result in disciplinary action);

   (c)    a site safety induction records form, to be completed by the worker;

   (d)    safety procedures;

(e)    a site induction test form, containing questions to test their knowledge after reading the site rules and safety procedures. Along with the site safety induction form the worker was given the Hanssen Construction Occupational Induction Booklet. This booklet was to be taken away with them after the induction. After completing the form, the worker was shown around the site by whoever was giving the induction. There would then be a drug test. Finally they would go to site storeroom and collect the relevant safety gear before being taken to their Leading Hand before commencing work.

30.    All of the site and safety rules and procedures that the workers from Construct were required to follow were in the information that was provided to them at the Hanssen induction. These rules applied to all workers on the site.

31.    It was of paramount importance to Hanssen for all the workers on site to follow directions and the site and safety rules. This was because the directions and rules were designed to protect their own safety and the safety of their colleagues. The site and safety rules themselves made this clear. It was reinforced by reading out the site and safety rules at the induction, to make sure the workers were aware of the rules and the reasons for them.

32.    When the Construct workers were on the Concerto Project site, the responsible Hanssen Leading Hand or Foreman would direct the workers in performing their work.

33.    Ultimately everyone on site worked under Hanssen’s supervision. I would have no hesitation in telling a member of a subcontractor’s team what to do or to go home if they did not comply with Hanssen’s directions.

34.    If a worker on the Concerto Project wanted to take a holiday the site rules required the worker to give Hanssen one week’s notice. This was important because if the worker was not going to be at work as expected then Hanssen would need to organise cover or a replacement so that the work program would not be held up.

35.    In some cases it was not possible for a worker to give Hanssen a week’s notice because the absence was unforeseen, for example because the worker was sick or another job had come up. For workers who were under my supervision, including Construct workers, I told them that if there was any change to their schedule that meant they could not come to work on any particular day, they needed to let me know as soon as possible, so I could organise a replacement or cover. This happened very regularly on the Concerto Project. In most cases it was possible to cover the absence by using an existing contractor to carry out the absent worker’s scheduled work. On some occasions, however, I would need to arrange another contractor from one of the labour hire companies, including Construct.

80    Ms O’Grady also gave evidence in response to the affidavit of Ms Lee:

38.    I refer to paragraph 42 of Ms Robinson-Dernie’s affidavit. This paragraph refers to the part of my role of directing Ms Robinson-Dernie about the work that she was required to perform, and to check in regularly with her to see how she was going and to make sure her work was up to standard. I recall that on a few occasions after checking her work I had to say something to her like, “Jessika, your lagging work is not to the standard required. You must go back and do it properly.”

39.    I refer to paragraph 43 of Ms Robinson-Dernie’s affidavit. I do not recall ever saying to Ms Robinson-Dernie that she would be fired unless she stayed back to finish a level. I do recall asking Ms Robinson-Dernie to stay back on occasion, however, I do not recall ever threatening to fire any worker, including Ms Robinson-Dernie, if they did not agree to stay back.

40.    I refer to paragraph 44 of Ms Robinson-Dernie’s affidavit. I do not recall her ever staying back until 6.30 pm to finish lagging work, let alone doing so “a number of times”. I refer to Ms Higgs’ Affidavit and, in particular, the Hanssen clock in/clock out records for Ms Robinson-Dernie in Annexure “T J-56” at pages 396-7 of the Affidavit. Those records show that during the period Ms Robinson-Dernie was working on the Concerto site the latest she is recorded as having stayed back is 4.59 pm, on the last day she which she worked, 27 September 2019. This is consistent with my recollection.

41.    I refer to paragraph 45 of Ms Robinson-Dernie’s Affidavit. I recall Ms Robinson-Dernie being moved from lagging to cleaning, and that I continued to be responsible for directing her and checking her work. However, I do not recall giving her 5 different types of brushes and I do not recall asking her to dust proof the ceiling as Ms Robinson-Dernie swears in this paragraph.

42.    I refer to paragraph 46 of Ms Robinson-Dernie’s Affidavit. This paragraph does not accurately describe what happened and what was said. On the day in question Ms Robinson-Dernie said to me something like, “Amy, I am in a lot of pain and I can’t do my sweeping work”. I don’t recall any mention of a car accident. In response I said something like “Jessika, you should go home and rest if your back is in pain. You should seek medical attention. You should also not return until you are fully recovered as you may do more harm to your back.”

43.    I refer to paragraph 65 of Ms Robinson-Dernie’s Affidavit. I do not recall this telephone conversation with her, although it is possible that it happened. Ms Robinson-Dernie says in her Affidavit that the telephone conversation was on 18 September 2019. I note that this was a Sunday, and the site was not open and I did not go onto the site on a Sunday, so Ms Robinson-Dernie must be mistaken about the date of the alleged conversation.

44.    What I do recall is that it was my responsibility to tell Ms Robinson-Dernie that she was no longer required by Hanssen on the Concerto Project, but I cannot recall whether that occurred face-to-face or by phone or exactly the date and time of the conversation. I do recall that the reason for Hanssen making this decision was a number of incidents involving Ms Robinson-Dernie, from which Hanssen concluded that she was unreliable and her work and attitude generally were not up to the required standard. The following is a summary of the various incidents that led to Hanssen’s decision:

(a)    Ms Robinson-Dernie would leave site on a regular basis without letting me, or anyone else in a position of responsibility on site know;

(b)    On one such occasion, Ms Robinson-Dernie left site without clocking out and I heard from other workers that she had gone to a bar with some of the older workers. I recall telling Ms Robinson-Dernie’s step-father about this incident;

(c)    On an almost daily basis, while doing my rounds, I discovered that Ms Robinson-Dernie was not in her allotted work area and I could not reach her on her phone. I, therefore, had to search the site for her to make sure she was safe and to get her back to work to ensure her allocated work would be done efficiently;

(d)    In most of these cases I would find her chatting with male workers on a different level and area of the building;

(e)    On one occasion, after searching the site for Ms Robinson-Dernie, I saw her walking down some stairs. When I called out her name she ran very fast down the stairs giggling. I tried to follow her but could not find her and assume that she left the site to avoid me.

The fwo case

81    Mr French adopted the CFMMEU’s submissions in VID 1191 and, sensibly, did not seek to repeat Mr Irving’s detailed submissions advanced on behalf of the union.

82    Like the CFMMEU in VID 1191, the FWO’s principal case is founded on the proposition that Construct had either control, or a right of control, over the workers, because they were contractually bound to Construct to obey Hanssen’s directions. (Construct’s case, of course, is that Hanssen, not it, controlled all aspects of the worker’s work at site, and that it was Ms O’Grady and others working for Hanssen who told the workers what work to do, and when and how they were to do it. Construct says that it had no control over the way that the workers carried out their work, and that that they were free to work when they pleased).

83    The FWO emphasises, as matters of fact, that after the workers commenced work:

(1)    they were required to “clock-in” and “clock-out” using an electronic thumbprint system;

(2)    Hanssen kept computer generated records of the hours worked by each of the workers based on the electronic system referred to above;

(3)    the workers also recorded their hours via “time allocation sheets” which were verified by the electronic record referred to above;

(4)    Hanssen sent the records of the time worked by each of the workers to Construct;

(5)    Construct then paid each of the workers for the hours they worked and pay slips recording the payment were produced;

(6)    Construct issued invoices to Hanssen for the work provided by the workers, based on the their hours of work; and

(7)    Hanssen paid Construct in accordance with the invoices sent by Construct.

84    Further, the FWO relies on the fact that Hanssen supplied Ms Lee and Ms Kemp with all the tools and equipment that were required to work, other than boots and a high visibility shirt which they purchased for themselves. The same is true of Mr James, save that he also purchased a “podger spanner” for $50.

85    He also points to the fact that the workers provided unskilled labour and that they had to be trained for all of the tasks they performed.

86    Parts of the evidence adduced from Ms Lee and Ms Kemp were called in aid of the FWO’s submission that Mrs Kemp’s daughters did not subjectively understand the legal concept of “independent contractor”, and that, as a result, the terms of the ASA, in particular, should be given less weight in “the application of the overall totality principle and the multiple-indicia test”. It was also put on the basis that their lack of understanding is relevant “because [it] inform[s] how the parties conducted themselves subsequently on the site” (at T 265, line 43), and thus goes to the question of control.

87    Mr French also submitted that because Ms Lee and Ms Kemp were “straight out of school” a more significant explanation of the ASA than otherwise may have been given was required (at T 541, line 46), and that the 20 minutes that Mr van der Plas agreed he had spent explaining that document to them was “cursory and insufficient to get real engagement from the workers in terms of knowing and understanding of what they were doing” (at T 554, line 23). It was also said to be relevant to the multiple-indicia test that the workers were not provided with a copy of the ASA, in particular in circumstances where it was “the one document that really spelled out the workers’ right to negotiate a pay increase” (at T 554, line 41).

88    Mr French also submitted that the notion that the workers were free to accept and reject work “was not part of the practical arrangement between the parties” and that in circumstances where they were struggling to find work anywhere, it was unrealistic to expect that they could hold themselves out to another employer (at T 546, line 28). It was also submitted that “primacy” should be given to “the evidence of the … workers that they were expected to work those hours [5.5 days per week] and had to seek permission to divert from that” (at T 549, line 7).

89    Otherwise, very little was said by the FWO to turn on any factual differences between the case of Mr McCourt in VID 1191 and that of the three workers the subject of this proceeding. Ultimately, the fact that they were minors was said by the FWO to go to the question of whether they were running their own businesses. As Mr French put it in his closing oral submissions (at T 545, lines 38-44):

It was because of the factual context, they were clearly – they were demonstrating a lot of behaviours that indicate they were not intending to run their own business … that were apparent to Construct when they were interviewing. They were driven there by their mother … Mr van der Plas was liaising with their mother about – just immediately prior to them starting work, via text messaging…

90    The submission continued in the following exchange between me and Mr French:

HIS HONOUR: Am I right in remembering that they got the inside running for the position because Mr Kemp worked for the labour hire company?

MR FRENCH: Yes. That’s my understanding. There was some cross-examination about ---

MR BLACKBURN: He worked for Hanssen.

MR FRENCH: Sorry?

MR BLACKBURN: He worked for Hanssen.

MR FRENCH: Yes, he worked for Hanssen.

HIS HONOUR: I see.

MR FRENCH: Yes. So there some inside running. And we say that goes to – not necessarily to a huge extent, but demonstrating that they were

HIS HONOUR: No, it’s just one of the – just explains how it came to be.

MR FRENCH: Demonstrating that they weren’t champing at the bit to set up their own business. But it’s – we put it no higher than that.

HIS HONOUR: Go ahead. I follow.

MR FRENCH: And then what followed, so coming back to what occurred on site, we say they worked the regular hours that were set in the job order. That they did not divert from that. And we say that this idea that there was – they were free to accept and reject work … was not part of the practical arrangement between the parties. Notwithstanding that it might have been included as a term of the ASA, though we say that that document should be – the importance of that document should be diminished given the circumstances.

HIS HONOUR: They were struggling to find work so they got the inside running with ---

MR FRENCH: Yes.

HIS HONOUR:--- Mr Kemp and Hanssen. And you say, well, in those circumstances the realistic prospect of them holding themselves out to some other employer would be unrealistic.

MR FRENCH: Yes. And further, the practical – what practically occurred on site reinforces that …

91    Mr French also sought to emphasise the youth and inexperience of Ms Lee and Ms Kemp, in the following submission (at T 549, lines 7-15):

We say that’s to be given primacy in that the evidence of the parties or the evidence of the workers that they were expected to work those hours and had to seek permission to divert from that that it supports and consolidates that account, an account, we say, would loom large in the mind of a young worker on a worksite for the first time in the case of the two women. And even in the case of Mr James, on a construction site, working his first construction job. Furthermore, there was evidence from both Mr James and – just on this permission point – and I believe it was Ieasha – to the effect that there was – they thought they had to seek Denby Jackson’s permission.

….

92    The following submission was put in respect of all three workers (at T 547, lines 1-5):

I think in the case of all three workers – and I think this is salient, your Honour – that their age and inexperience did play into how they conducted themselves on site in terms of their deference to their supervisors and in terms of what we say – that they, effectively, sought the permission of the supervisors when they needed a day off.

93    Otherwise, in the end, much of the factual evidence about the length of the interviews, the extent to which the terms of the various documents were explained by Construct, and the minutiae of detail concerning work practices at Hanssen’s sites did not set the FWO’s case apart from that made by the applicants in VID 1191.

RELEVANT LEGAL PRINCIPLES

94    The relevant legal principles are set out at VID 1191 at [115]-[129]. I will not repeat them here.

consideration

95    The FWO did not dispute that Construct intended to engage each of the workers as independent contractors, and he, like the CFMMEU in VID 1191 disavowed any suggestion of sham or pretence.

96    I will not repeat what I said in VID 1191 in relation to the express terms of the ASA, in particular, about the statements about the status of the workers as independent contractors. I will also not repeat what I said about the issues of control, ([134]-[147]), running a business ([148]-[157]), mode of remuneration ([158]-[159]), provisions of tools and equipment ([160]-[163]), integration into the organisation ([164]-[165]), the right to negotiate increases ([166]), taxation and superannuation ([167]-[168]) and the absence of paid leave and other employee entitlements ([169]). My observations and reasons in those paragraphs apply equally here, because, as I have observed, ultimately the FWO did not rely on any particular differences between his case and that involving Mr McCourt in VID 1191, other than those referred to above at [84]-[88].

97    In the end, the case put on behalf of the FWO was the same case advanced on behalf of the CFMMEU in VID 1191, save for the submissions recorded at [81]-[93] of these reasons.

98    It may be accepted that the fact that Ms Lee and Ms Kemp were minors, and had never had a job before, is sufficient in the circumstances of this case to establish that neither of them was running their own business. But for reasons I have explained in VID 1191, it was obvious on the facts there that Mr McCourt also did not operate a business on his own account. He, like Ms Lee and Ms Kemp (and Mr James for that matter), was an unskilled labourer, who had never set up a separate business.

99    In those circumstances, the fact that the workers, like Mr McCourt, did not operate a business on their own account is one indicator in the context of the multi-factorial approach, that he was an employee, for the reasons I explained in VID 1191 at [148]-[157].

100    To the extent that Mr French submitted that because all three workers were young and inexperienced, they were, as a matter of practical reality, unable to take time off when they wanted to, two things should be said. First, that is not consistent with the evidence concerning Ms Kemp, who asked for and was allowed time off to celebrate her 18th birthday. Secondly, even assuming the point to be a good one, it would weigh only slightly in the balance, and would not, and does not, cause me to reach a view different to the conclusions I expressed at [170]ff on my reasons in VID 1191.

101    Further, as Mr Blackburn submitted, there is no evidence from any of the workers in this case that Construct (as opposed to Hanssen) exercised any relevant control over them.

disposition

102    For the reasons set out above, the workers were not employees of Construct. The Award does not apply to him, so the allegations of breach and for damages made in the proceeding by the FWO do not arise.

103    The proceeding is to be dismissed.

Associate:

Dated:    6 November 2019