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Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2011] FMCA 139 (28 November 2011)

Last Updated: 1 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v QUINCOLLI PTY LTD & ANOR
[2011] FMCA 139

INDUSTRIAL LAW – Alleged breaches of the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth) and a State award – issues of liability – whether the employees were covered by the State award and whether the employer had lodged Australian Workplace Agreements for them considered – allegations of a politically motivated investigation by Fair Work Australia – allegations of a flawed investigation by Fair Work Australia – relevance of the allegations considered.

PRACTICE AND PROCEDURE – Jurisdiction of the Court.


Angus Fire Armour Australia Pty Ltd v Collector of Customs [1988] FCA 339; (1988) 19 FCR 477
Armstrong v Bigeni Contracting Pty Ltd & Anor [2008] FMCA 485
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Conlan as Trustee of two bankrupt estates [2011] FMCA 849
FCU v Kingmill Pty Ltd t/as Thrifty Car Rental (Matter no. IRC6472 of 1997, per Glynn J, 17 December 1999); 94 IR 67
Federated Clerks’ Union of Australia (NSW Branch) v Australian Workers Union [1971] AR (NSW) 419
Forge v ASIC [2004] NSWCA 448; (2004) 52 ACSR 1
Gibbs v Mayor, Councillors and Citizens of City of Altona [1992] FCA 374; (1992) 37 FCR 216
Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
McIver v Healey [2008] FCA 425
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
SZQKE v Minister for Immigration & Anor [2011] FMCA 846
Tucker v Rising Sun Towing Service Pty Ltd 7 IR 75
Ware v O’Donnell Griffin (Television Services) Pty Ltd 1971 AR 18
Yorke & Anor v Lucas [1985] HCA 65; (1985) 158 CLR 61

Applicant:
FAIR WORK OMBUDSMAN

First Respondent:
QUINCOLLI PTY LTD
ACN 003 371 097

Second Respondent:
JUDITH MADGE POTTER

File Number:
SYG 1898 of 2010

Judgment of:
Driver FM

Hearing dates:
7-11 March, 14 & 19 April & 24 May 2011

Date of Last Submission:
15 September 2011

Delivered at:
Sydney

Delivered on:
28 November 2011

REPRESENTATION

Counsel for the Applicant:
Ms C Howell

Solicitors for the Applicant:
Fair Work Ombudsman

Counsel for the Respondents:
Mr McCrudden


Solicitors for the Respondents:
Macquarie Lawyers Burwood

ORDERS

(1) The Court declares that during the period 1 January 2009 to 31 December 2009, Quincolli Pty Ltd contravened the following provisions:
(2) The Court declares that Quincolli Pty Ltd contravened subsection 712(3) of the Fair Work Act 2009 (Cth).
(3) The Court declares that Judith Madge Potter was involved in the contraventions by Quincolli Pty Ltd identified in orders (1) and (2) above within the meaning of s.728 of the Workplace Relations Act 1996 (Cth) and s.550 of the Fair Work Act.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1898 of 2010

FAIR WORK OMBUDSMAN

Applicant


And


QUINCOLLI PTY LTD ACN 003 371 097

First Respondent

JUDITH MADGE POTTER

Second Respondent


REASONS FOR JUDGMENT

Introduction and Background

  1. This is an application under the Workplace Relations Act 1996 (Cth) (“the Workplace Relations Act”) and the Fair Work Act 2009 (Cth) (“the Fair Work Act”) for the imposition of penalties for breaches of the Workplace Relations Act and a NSW state award. The proceedings were commenced by way of an application filed on 27 August 2010 and an amended statement of claim filed on 9 September 2010. The orders sought are set out in the amended statement of claim.
  2. The applicant (Fair Work Ombudsman) alleges that during the period from 1 January 2009 to 31 December 2009 (relevant period), the first respondent (Quincolli Pty Ltd[1]) breached the following:
    1. section 182(1) of the Workplace Relations Act being a term of the Australian Fair Pay and Conditions Standard (AFPCS) by failing to pay 40 employees the minimum hourly rate of pay that was at least equal to the basic periodic rate of pay under the Australian Pay and Classification Scale derived from the terms of the Clerical and Administrative Employees (State) Award (Clerical APCS) for each hour worked;
    2. clause 10.3.3 of the notional agreement preserving the Clerical and Administrative Employees (State) Award (Clerical NAPSA) by failing to pay employees a shift allowance of 17% for hours worked during afternoon shifts;
    1. clause 10.3.6 of the Clerical NAPSA by failing to pay employees at the rate of time and one-half for work performed on a Saturday;
    1. clause 10.3.6 of the Clerical NAPSA by failing to pay employees at the rate of time and three-quarters for work performed on a Sunday;
    2. clause 10.3.6 of the Clerical NAPSA by failing to pay employees at the rate of double time and one-half for work performed on public holidays;
    3. clause 10.4.1 of the Clerical NAPSA by failing to pay employees working in excess of 40 hours per week at the applicable overtime rate of time and one half for the first two hours and double time thereafter;
    4. clause 14.1.1 of the Clerical NAPSA by failing to pay employees a loading of one twelfth of their ordinary rate in lieu of an annual leave entitlement in accordance with the terms of the notional agreement preserving the Annual Holidays Act 1944 (NSW) (AHA NAPSA); and
    5. section 712(3) of the Fair Work Act in that Quincolli failed to comply with a Notice to Produce Records or Documents issued by the Fair Work Ombudsman.
  3. The Fair Work Ombudsman also alleges that the second respondent (Mrs Potter) was involved in each of the breaches by Quincolli outlined above within the meaning of s.728 of the Workplace Relations Act and s.550 of the Fair Work Act and is thereby taken to have contravened the provisions.
  4. The following statement of background facts is derived from the submissions of the parties.
  5. During the relevant period, Quincolli:
    1. was an employer as defined in the Workplace Relations Act and the Fair Work Act[2];
    2. operated the business known as Well Done Contact Centres which includes the inbound call centre located at 21-24/32 Browns Road, South Nowra, New South Wales; and
    1. employed the employees named in Schedule 1 to the Amended Statement of Claim (Employees) as call centre operators. The Employees were each employed on a casual basis.
  6. The Employees were paid in accordance with agreements that were purportedly lodged by Quincolli as Australian Workplace Agreements (AWAs) with the Office of the Employment Advocate (OEA) in February and March 2007.
  7. The Fair Work Ombudsman asserts that no AWA was ever lodged by Quincolli with the OEA[3] in accordance with the Workplace Relations Act and that, by virtue of the duties performed by the Employees, the applicable industrial instrument that covered the Employees during the relevant period was the Clerical NAPSA.
  8. While the respondents claim that AWAs were sent to the OEA in February and March 2007, these AWAs only relate to four out of the 40 Employees[4]. The respondents’ evidence[5] indicates that no AWAs were ever sent to the OEA in respect of the remaining 36 Employees. The Fair Work Ombudsman contends that, on any view, the applicable industrial instrument that covered those 36 Employees during the relevant period was the Clerical NAPSA.
  9. The basic rate of pay, penalties and loadings paid to the Employees during the relevant period were less than those prescribed in the Clerical NAPSA and an underpayment resulted in the amount of $202,057.06. This underpayment has not been rectified.
  10. The application is opposed by the respondents who filed a response on 25 October 2010. That response identifies the following grounds of opposition:
  11. On the final day of the trial of this matter, on 24 May 2011, I agreed to a two stage process for the resolution of the proceedings, with the first stage being a judgment on liability, and the second stage being a decision on any issue of penalty.

The evidence and submissions

  1. The Fair Work Ombudsman relies upon two affidavits by Darren John Lang made on 4 November 2010 and 28 January 2011, the affidavits of Nigel Christian Rory Smith made on 4 November 2010 and 31 January 2011, the affidavit Brian Forbes made on 5 November 2010 and the affidavit of Peter John Schmarr made on 4 November 2010. Mr Lang, Mr Schmarr and Mr Smith were all cross-examined on their affidavits.
  2. The respondents rely upon three affidavits by Mrs Potter made on
    27 October 2010 and two made on 4 January 2011. They also rely upon one paragraph (paragraph 8) of affidavits made by 11 employees of the respondents’ business made in December 2010[6]. One of those employees (Lynette Richardson) gave oral evidence.
  3. I received the following exhibits:
  4. The parties dispute the issues of the application of the Clerical NAPSA to the Employees and the classifications relied upon by the Fair Work Ombudsman. There is a further issue of accessorial liability in relation to Mrs Potter.
  5. The respondents submit that the Fair Work Ombudsman has, fatally to its case, failed to bring substantial or cogent evidence to define the occupations of the workers of the respondents’ business as “clerks” and thus enliven the application of the Clerical NAPSA. Secondly, they contend that the Fair Work Ombudsman, as a best practice or model litigant, has failed to observe the tenets of such practice and caused unnecessary litigation.
  6. Further, the respondents submit that the evidence shows that the Clerical NAPSA does not apply and that the respondents were free to negotiate an industrial agreement. Accordingly the application should be dismissed. They assert that the evidence should contain statements from the workers as to the actual work performed by all affected. Its absence is said to considerably undermine the Fair Work Ombudsman’s contentions.
  7. It is common ground that if the Clerical NAPSA does not apply then there was no underpayment of the Employees. Mrs Potter asserts that she should not be subject to a civil penalty, even if the Clerical NAPSA does apply, due to the usual factors taken into consideration in making a finding of accessorial liability.
  8. The respondents seek the dismissal of the application with costs awarded on an indemnity basis.
  9. The Fair Work Ombudsman relies upon the following closing submissions which point to the hard fought nature of the these proceedings:
  10. The respondents filed closing submissions on 22 August 2011 going to matters of procedure and pleadings, the law in relation to call centres and estoppel. These were supplemented on 15 September 2011.

Consideration

The jurisdiction of the Court

  1. In Conlan as Trustee of two bankrupt estates[62] the Court raised an issue of jurisdiction of fundamental significance to any proceedings before the Court[63]. Relevantly, at [3]-[7] Lucev FM stated:
  2. The issue raised by the Australian Government Solicitor in Altobelli & Ors v Commonwealth has not been tested in those or other proceedings and the Attorney-General has gone on record as saying that the Commonwealth would defend the constitutional validity of the Federal Magistrates Act 1999 (Cth) and the commissions of appointment of Federal Magistrates. The Court’s decision in Fortron Automotive supports the conclusion that there is no constitutional impediment to the exercise of jurisdiction by the Court. While it is appropriate for me to draw the attention of the parties to the issue, I proceed on the basis that the Court has jurisdiction to make orders in the proceedings before it. I have considered whether I should relist the matter and invite submissions from the parties on the issue. I have not done so because I consider that that course would unnecessarily prolong these proceedings and because it would be open to the parties to raise the issue in any appeal, which would probably be a more appropriate forum to address the issue than this Court.

The bona fides of the proceedings

  1. The respondents contend that these proceedings were the result of an improper (and possibly politically motivated) campaign against them by the United Services Union and that the Fair Work Ombudsman’s investigation was fatally flawed. The respondents also contend that the Fair Work Ombudsman has not maintained the proceedings consistently with his obligations as a model litigant.
  2. The Commonwealth has issued Legal Services Directions made under s.55ZF of the Judiciary Act 1903 (Cth) setting out the obligations of agencies bound by the Financial Management and Accountability Act 1997 (Cth), and others conducting litigation on behalf of the Commonwealth, to act as a model litigant. It is the responsibility of the Attorney-General, not the courts, to impose sanctions for non-compliance with the Directions. The courts are, of course, entitled to control their own processes, and the manner in which litigation is conducted may be a factor to take into account in considering issues of costs.
  3. The investigation by the Fair Work Ombudsman was the result of a complaint by a confidential complainant. Much was made at the hearing of this matter about the motivation of the confidential complainant and his identity. The respondents were critical of the Fair Work Ombudsman for not leading evidence from him. In my view, that criticism was not well-founded. Employees and others are entitled to make a complaint to the Fair Work Ombudsman on a confidential basis. That confidentiality is important in order to give employees confidence that they can raise employment issues with the Fair Work Ombudsman without fear of retribution. Secondly, even if the confidential complainant was motivated by malice against the respondents, that would not, in my view, matter. The essential issue in this case is not the motivation of the confidential complainant (or even if his complaint was justified) but, rather, whether the respondents breached the legislation and the NAPSA. Evidence from the confidential complainant would not have assisted the Court to resolve that issue and, indeed, that evidence would, if led, have likely to have been a distraction because the confidential complainant had unrelated concerns about his employment.
  4. The respondents also suggest that there was a political or industrial motivation for the action taken by the Fair Work Ombudsman. Exhibited to Mrs Potter’s affidavit of 7 March 2011 is a file note of a conversation between an employee of the Fair Work Ombudsman and an official of the United Services Union (Rudy Oppitz) on 20 July 2009. The issue of underpayment of staff was discussed as was whether AWAs were in place. Mr Oppitz provided a copy of an AWA being relied upon by the respondents. Mr Oppitz apparently referred to Mr and Mrs Potter as “Liberal supporters” who were “against the new Fair Work legislation”. Mr Oppitz apparently said that “generally call centre staff are award free. However, in this case the call centre staff are administrative and are bound by the award”. The evidence discloses that the United Services Union took a close interest in the investigation by the Fair Work Ombudsman and that there was a high degree of animosity between some officials of the Union and Mr and Mrs Potter.
  5. There is no doubt that the Fair Work Ombudsman’s investigation generated considerable “heat”. Exhibit R3 is an email apparently from the confidential complainant to the then Deputy Prime Minister and Minister for Employment and Workplace Relations dated 11 November 2009. That email is headed “Official Complaint – Attention Deputy Prime Minister’s Office” and, in its terms, is a complaint about the confidential complainant’s contact with the Minister’s Office and officers in her Department (which was probably intended to include the Office of the Fair Work Ombudsman). It is apparent from the terms of the complaint that the confidential complainant was extremely dissatisfied with the investigation into his complaint. Exhibit R1 includes draft correspondence to the General-Secretary of the United Services Union from the Chief of Staff of the then Deputy Prime Minister and Minister for Employment and Workplace Relations. That letter was a response to concerns expressed to the then Deputy Prime Minister about the investigation conducted by the Fair Work Ombudsman.
  6. I accept that there was dissatisfaction on the part of the respondents, the confidential complainant and the United Services Union about the investigation conducted by the Fair Work Ombudsman. That investigation was the subject of a review conducted by Mr John Fleming (Deputy Director of Regional Services and Targeting NSW-ACT in the Sydney office of the Fair Work Ombudsman). Exhibit A7 is a letter from Mr Mark Davidson of the Office of the Fair Work Ombudsman to Ai Group Legal Pty Ltd dated 22 December 2009. That letter advises that the outcome of the review (which had been requested by Ai Group Legal) was that there was a need for further enquiries to be conducted by Fair Work inspectors before a reliable determination could be made. It was implicit that a determination which had been made prior to the review was not reliable. I do not rule out the possibility that there was maladministration in the Office of the Fair Work Ombudsman prior to the review conducted by Mr Fleming. If that were to be the case I do not see it as relevant to the outcome of these proceedings (except possibly in relation to penalty). The determination ultimately made by the Fair Work Ombudsman which has led to these proceedings was made after a thorough investigation as recommended by Mr Fleming. Whatever the genesis of the inquiries undertaken by the Fair Work Ombudsman and whatever pressure was brought to bear during the course of that investigation, it is now for the Court to determine whether the asserted breaches of the legislation and the NAPSA have been made out.

Legislative provisions
Standing and penalties

  1. The Fair Work Ombudsman is a statutory appointee of the Commonwealth appointed by the Governor General by written instrument, pursuant to s.687 of the Fair Work Act and a Fair Work Inspector pursuant to s.701 of the Fair Work Act. On 1 July 2009, the Workplace Relations Act was repealed by the Fair Work Act.
  2. In respect of breaches occurring prior to 1 July 2009, item 11(1) of Part 3 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) provides that the Workplace Relations Act continues to apply on and after 1 July 2009 in relation to conduct that occurred before that date.
  3. Part 5-2 of the Fair Work Act applies to conduct that occurred prior to
    1 July 2009, pursuant to sub-item 14 of Part 3 of Schedule 18 of the Transitional Act and Sub-item 13(1) of Part 3 of Schedule 18 of the Transitional Act gives Fair Work Inspectors the power to make or continue applications under the Workplace Relations Act.
  4. Part 4-1 of the Fair Work Act applies as if items 2 to 8 and 10 to 15 of Schedule 16 of the Transitional Act were provisions of the Fair Work Act. Item 2 deals with contraventions of award-based transitional instruments (which include NAPSAs) and Item 5 deals with contraventions of section 182 of the Workplace Relations Act as it continues to apply.
  5. On 27 March 2006 the Clerical and Administrative Employees State (Award) (Clerical Award) was taken to be replaced by an instrument called a Notional Agreement Preserving State Award (NAPSA)[77].
  6. Pursuant to clause 43(1) of Part 3 to Schedule 8 of the Workplace Relations Act, a NAPSA may be enforced as if it were a collective agreement.
  7. Section 719(1) of the Workplace Relations Act provides that the Federal Magistrates Court may impose a penalty in respect of a breach of an “applicable provision” by a person bound by the provision.
    An “applicable provision” is defined in s.717 of the Workplace Relations Act to include a term of the Australian Fair Pay and Conditions Standard (AFPCS) and a collective agreement. Similarly, for breaches occurring on or after 1 July 2009, s.546(1) of the Fair Work Act provides that the Federal Magistrates Court may order a person to pay a pecuniary penalty if the Court is satisfied that the person has contravened a civil remedy provision[78].
  8. Both the Workplace Relations Act and Fair Work Act provide that the maximum penalty that may be imposed by this court to be, in the case of an individual, 60 penalty units and in the case of a body corporate, 300 penalty units[79]. Both Acts[80] provide that “penalty unit” has the same meaning as in the Crimes Act 1914 (Cth). Section 4AA of the Crimes Act defines “penalty unit” to be $110. Therefore, the maximum penalty that may be imposed by the Court for each breach by a body corporate is $33,000 and $6,600 for an individual.

Relevant provisions regarding workplace agreements

  1. The respondents claim that AWAs were entered into by Quincolli and 16 of its employees in or about early February 2007[81] and that these 16 AWAs were posted to the OEA in two batches on 8 February 2007 and 27 March 2007[82]. The respondents’ evidence discloses that no response was ever received from the OEA by the respondents in relation to the purported AWAs[83]. Should the Court accept that these AWAs were posted in February and March 2007, the Fair Work Ombudsman submits that the AWAs were never actually received by the OEA and therefore were not “lodged” within the meaning of the Workplace Relations Act.
  2. Further, the evidence suggests that no AWAs were ever lodged for those employees who commenced employment with Quincolli after March 2007. The evidence of the respondents indicates that only four[84] out of the 40 Employees[85] had their AWAs posted to the OEA.
  3. Divisions 5 and 6 of Part 8 of the Workplace Relations Act as in force from 27 March 2006 to 30 June 2007 deal with the lodgement and operation of workplace agreements.
  4. Section 347(1) of the Workplace Relations Act as in force at the relevant time provides that a workplace agreement comes into operation on the day the agreement is lodged with the OEA.
  5. Section 344(1) of the Workplace Relations Act provides that a workplace agreement is lodged if the employer lodges a declaration and a copy of the workplace agreement. The declaration lodged by an employer was required to be in the form published by the Employment Advocate[86]. Upon receiving a lodgement, the OEA was required to issue a receipt for the lodgement pursuant to s.345(1) of the Workplace Relations Act.
  6. Section 344(4) of the Workplace Relations Act provides that a declaration is lodged with the OEA only if the declaration is actually received by the OEA. The Note in s.344(4) explains that:
  7. Essentially, this means that the postal acceptance rule[87] does not apply to the lodgement of workplace agreements. The legislation requires “actual receipt” of the document for lodgement to be effective. Lodgement therefore requires a degree of physical acceptance by the person to whom the thing is given and is more than the mere placing or depositing of the object with that person[88]. If sent by post, a workplace agreement is not lodged until it is received by the Employment Advocate.
  8. The Fair Work Ombudsman submits that the absence of any record of the AWAs ever having been received or receipted[89] supports a finding that the AWAs were not in fact received by the OEA. The respondents’ contention that the AWAs were lost, mis-filed or misplaced[90] is not supported by their evidence and improbable given the lodgement systems that the OEA had in place at that time.
  9. AWAs operate once lodged. Accordingly, the Fair Work Ombudsman submits that if the AWAs were not lodged and therefore not in operation, the Clerical NAPSA applied to the employees of Quincolli. I accept that no AWAs in respect of the Employees were lodged in accordance with the legislation.

Breaches of the Workplace Relations Act and the Fair Work Act
Breach of s. 182(1) of the Workplace Relations Act

  1. Part 7 of the Workplace Relations Act (Part 7) is entitled the “The Australian Fair Pay and Conditions Standard”. The stated purpose of Part 7 is to set out key minimum entitlements of employment[91].
  2. The effect of s.182(1) of the Workplace Relations Act is that an employee must be paid a basic periodic rate of pay for each of his or her guaranteed hours that is at least equal to the basic periodic rate of pay that is payable to the employee under the APCS. Quincolli was allegedly required to pay the following rates contained in the Clerical APCS[92] to the Employees during the relevant period:
Classification
Basic rate
Casual loading
Total
Grade 1
$15.34
20%
$18.408
Grade 2
$15.89
20%
$19.07
Grade 3
$16.78
20%
$20.136
Grade 4
$17.87
20%
$21.444
Grade 5
$19.34
20%
$23.208

  1. The evidence[93] in this case establishes that, during the relevant period, the Employees were paid at the following casual hourly rates, which were less than those proscribed in the Clerical APCS:
Classification
Basic rate
Casual loading
Total
Grade 1
$14.31
20%
$17.17
Grade 2
$14.56
20%
$17.47
Grade 3
$14.80
20%
$17.77
Grade 4
$15.06
20%
$18.07

Grade 4 -
Senior Operator
$15.89
20%
$19.07

The Clerical NAPSA

  1. The Fair Work Ombudsman submits that the Clerical NAPSA applied to the Employees on and from 27 March 2006 because the terms of the original state award determined a term or condition of employment of employees of Quincolli in that business immediately prior to 27 March 2006.
  2. The Clerical NAPSA[94] provides relevantly as follows:
  3. The geographic and employer exceptions set out above do not affect Quincolli. The county of Yancowinna embraces Broken Hill and Quincolli is not bound by an employer specific award.
  4. The evidence from both Fair Work Ombudsman[95] and respondents[96] is that Quincolli employed persons to work as call centre operators, known as “agents” to answer inbound calls from a range of clients in a 24 hour, seven days’ a week call centre environment. Some of Quincolli’s clients included local councils, State Emergency Services and after hours’ doctors surgeries.
  5. The duties undertaken by the Employees involved receiving inbound calls on the telephone, or occasionally short-wave radio, and responding to such calls in accordance with various procedures which were communicated to the Employee on their computed screen[97]. The response provided by an Employee was dependent upon the nature of the call received and involved, among other things, providing advice, providing product information, giving directions, assisting with emergency calls, and arranging tradesmen and security personnel[98]. The Employees were required to log the calls they received and then follow-up or escalate the call if necessary, for example by forwarding details of the call to the client or contacting the client by phone to relay a message.
  6. The meaning of the phrase “employed in any clerical capacity whatsoever” expressed in the Clerical NAPSA, has been widely interpreted by the courts[99]. The Fair Work Ombudsman submits that given the broad construction of clause 34 above, the work performed by the employees at the call centre falls within the terms of the Clerical NAPSA.
  7. I accept that submission. While the Employees of the respondents are more properly described as call centre operators rather than clerks, their duties are fundamentally clerical in nature. The services provided by the respondents relieve their clients of the need to employ their own clerical staff to receive and respond to telephone calls, facilitating the provision of information, services and goods. I have no doubt that the respondents’ Employees, if they had been employed directly by the clients of the respondents, would have fallen within the purview of the Clerical NAPSA in the performance of their duties. They did not fall outside the coverage of the NAPSA simply because they were engaged by a company to which others chose to contract out certain of their clerical support functions.

Breaches of the Clerical NAPSA

  1. I accept the Fair Work Ombudsman’s submissions on the breaches of the NAPSA which, on the evidence, have been established. Much was made during the trial of this matter about the allocation of grades under the NAPSA to the respondents’ Employees. It is true that the allocation of grades under the NAPSA by the Fair Work Ombudsman was somewhat arbitrary. It is also true that there is not an easy or direct correlation between the indicative tasks relating to the various grades under the NAPSA and the employment grades applied by the respondents in their business. However, the NAPSA grades applied by the Fair Work Ombudsman as a result of the lengthy investigation are, in my view, a reasonable, and probably the best available, approximation of the relevant NAPSA grades. Further, I accept that all of the Employees were properly graded above grade 1 under the NAPSA. Even if all of them had been graded at grade 2, underpayments would have been established.
  2. Clause 10.3.3 of the Clerical NAPSA deals with payment for hours worked by employees during afternoon shifts. An “afternoon shift” is defined in subclause 10.2.1 of the Clerical NAPSA to mean any shift finishing after 7pm and at or before 11pm. Where a casual employee works shifts finishing between 7pm and 11pm, the employee must be paid a loading of 17 per cent in addition to their casual hourly rate. During the relevant period, Quincolli only paid a 10 per cent loading for all hours worked during afternoon shifts.
  3. Clause 10.3.6 of the Clerical NAPSA deals with payment for hours worked by employees on Saturdays. Where a casual employee works ordinary hours on a Saturday, the employee must be paid at the rate of time and one-half of their casual hourly rate of pay. [100]. During the relevant period, Quincolli only paid a $1.00 loading for all hours worked on Saturdays between the hours of 7am and 8pm. Further loadings of 10 per cent and 20 per cent were paid in respect of hours worked on Saturdays between 8pm and midnight and midnight to 7am respectively.
  4. Clause 10.3.6 of the Clerical NAPSA also deals with payment for hours worked by employees on Sundays. Where a casual employee works ordinary hours on a Sunday, the employee must be paid at the rate of time and three-quarters of their casual hourly rate of pay. During the relevant period, Quincolli paid all Employees, regardless of their classification, only a flat rate of $21 per hour for all hours worked on Sundays between the hours of 7am and 8pm. Further loadings of 10 per cent and 20 per cent were paid in respect of hours worked on Sundays between 8pm and midnight and midnight to 7am respectively.
  5. Clause 10.3.6 of the Clerical NAPSA further deals with payment for hours worked by employees on public holidays. Where a casual employee works ordinary hours on a public holiday, the employee must be paid at the rate of double time and one-half of their casual hourly rate of pay. During the relevant period, Quincolli paid all Employees, regardless of their classification, only a flat rate of $21 per hour for all hours worked on public holidays between the hours of 7am and 8pm. Further loadings of 10 per cent and 20 per cent were paid in respect of hours worked on public holidays between 8pm and midnight and midnight to 7am respectively. All hours worked on Good Friday and Christmas Day were paid at a flat rate of $25 per hour.
  6. Clause 10.4.1 of the Clerical NAPSA deals with overtime loadings. Where an employee works in excess of 40 hours per week, the employee must be paid at the applicable overtime rate of time and one half for the first two hours and double time thereafter. During the relevant period, Quincolli only provided those Employees who worked overtime time off in lieu at the casual hourly rate.
  7. Clause 14.1.1 of the Clerical NAPSA deals with an employee’s entitlement to annual leave and makes reference to the Annual Holidays Act 1944 (NSW) (AHA). Clause 4(3)(b)(ii) of the AHA is a term of the Clerical NAPSA and provides that employees must be paid a loading of one twelfth of their ordinary rate in lieu of their annual leave entitlement. Quincolli failed to pay the 1/12th loading in lieu of annual leave to any Employee.
  8. The table below provides an overview of the entitlements, expressed as an hourly rate, that Employees performing work consistent with the NAPSA classifications of Grades 2 to 4 were entitled to receive under the Clerical NAPSA compared to what they were actually paid by Quincolli under their purported agreement.
Rate paid pursuant to Well Done Agreement
Entitlement under the Clerical NAPSA
GRADE 2
Casual hourly rate
$16.66
$19.07
Afternoon shift
$18.33
$22.31
Saturday shift
$17.66
$28.61
Sunday shift
$21.00
$33.37
Public holiday
$25.00
$47.68
Overtime
Time off in lieu @ $16.66
$28.61 first 2 hours then $38.14 thereafter
Loading in lieu of Annual leave
$0
$1.59


GRADE 3

Casual hourly rate
$17.16
$20.14
Afternoon shift
$18.88
$23.56
Saturday shift
$18.16
$30.21
Sunday shift
$21.00
$35.25
Public holiday
$25.00
$50.35
Overtime
Time off in lieu @ $17.16
$30.21 first 2 hours then $40.28 thereafter
Loading in lieu of Annual leave
$0
$1.68



GRADE 4

Casual hourly rate
$17.66
$21.44
Afternoon shift
$19.43
$25.08
Saturday shift
$18.66
$32.16
Sunday shift
$21.00
$37.52
Public holiday
$25.00
$53.60
Overtime
Time off in lieu @ $17.66
$32.16 first 2 hours then $42.88 thereafter
Loading in lieu of Annual leave
$0
$1.79

The involvement of Mrs Potter in the Workplace Relations Act and Clerical NAPSA contraventions

  1. Section 719 of the Workplace Relations Act and s.546 of the Fair Work Act empower the Court to impose penalties upon persons who have contravened civil remedy provisions.
  2. Section 728 of the Workplace Relations Act and s.550 of the Fair Work Act provide that persons “involved” in a contravention of a civil remedy provision are to be treated as having contravened those provisions, and therefore liable to the imposition of penalties pursuant to s.719 of the Workplace Relations Act and s.546 of the Fair Work Act.
  3. The Fair Work Ombudsman submits that Mrs Potter, was involved in the contraventions within the meaning of s.728 of the Workplace Relations Act (during the period 1 January 2009 to 30 June 2009) and s.550 of the Fair Work Act (during the period 1 July 2009 to
    30 December 2009) by being directly or indirectly, knowingly concerned in or party to the contraventions within the meaning of s.728(2)(c) of the Workplace Relations Act and s.550(2)(c) of the Fair Work Act.
  4. The authorities[101] show that in order for a person to have accessorial liability under s.728 of the Workplace Relations Act (or s.550 of the Fair Work Act), he or she must be a knowing participant or in other words:
    1. must have knowledge of the essential facts constituting the contravention;
    2. must be knowingly concerned in the contravention;
    1. must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient under s.728(2)(c) in cases of wilful blindness; and
    1. need not know that the matters in question constituted a contravention.
  5. The Fair Work Ombudsman submits that Mrs Potter was involved in the Workplace Relations Act and Clerical NAPSA contraventions of Quincolli, because she:
    1. is, and was during the relevant period, a director and sole secretary of Quincolli[102];
    2. had the active day to day management and control of the Employees[103];
    1. was the person responsible for determining and setting wage rates and conditions for the Employees[104];
    1. was aware that the Employees were required to be covered by an award or agreement, considered the application of the Clerical NAPSA in October 2006 and formed the view that it did not apply to the Employees[105];
    2. engaged in a consultation process with the Employees during the period August 2006 to January 2007 regarding the creation of workplace agreements[106];
    3. was the person responsible for allegedly forwarding 16 AWAs to the Office of Employment Advocate on 8 February 2007 and 27 March 2007[107];
    4. failed to follow up the lodgement of the workplace agreements even though no reply or receipt was ever received from the OEA and advised the Applicant more than two years later that “We just assumed they had been properly processed”;
    5. was aware that Quincolli had unregistered agreements and contacted the Ai Group on 8 July 2009 to seek advice[108];
    6. contacted the Workplace Authority on 22 July 2009 seeking advice as to the correct industrial instrument covering the Employees[109]; and
    7. was first advised by the Fair Work Ombudsman on 16 October 2009 and on a number of occasions after that date, that the Clerical NAPSA applied to the Employees[110].
  6. I accept those submissions. Mrs Potter attempted to present herself under cross-examination as confused, inexperienced in industrial matters and as a victim of a maliciously inspired investigation. She was, however, not an impressive or reliable witness in relation to the workplace agreements allegedly put in place. She did impress me as a very experienced, astute and hard nosed businessperson with an impressive grasp of her own business. She made deliberate and conscious decisions as to the payment of the Employees that would benefit the business. She sought advice as to the liabilities of the business and attempted (albeit ineffectually) to contract out of any award coverage. She was determined and tenacious in resisting the investigation of the Fair Work Ombudsman when she realised it posed a threat to the arrangements she had sought to put in place to minimise the labour costs of the business.

Breach of s.712(3) of the Fair Work Act

  1. Part 5-2 of the Fair Work Act proscribes the extent of the compliance powers of Fair Work Inspectors to ensure adherence with the Fair Work Act and/or a fair work instrument.[111]
  2. In order for inspectors to determine whether the Fair Work Act or a fair work instrument is being complied with, s.712(1) if the Fair Work Act provides inspectors with the power to require persons to produce relevant records or documents. The exercise and enforcement of this power is essential to the efficacy of the compliance provisions.
  3. Section 712 of the Fair Work Act provides:
  4. On 5 July 2010, Inspector Darren Lang issued a notice to produce (Notice) pursuant to s.712(1) of the Fair Work Act. The Notice required Quincolli to produce the following records or documents[112]:
  5. The Fair Work Ombudsman does not press the failure to provide legal advice, but does press the failure to provide all other records or documents requested in the Notice.
  6. The records or documents were due by 5.00pm on 19 July 2010 and Quincolli was accordingly given 14 days’ notice by which to comply, as stipulated under s.712(2)(c) of the Fair Work Act.
  7. The penultimate paragraph of the Notice stated “Failure to comply with this Notice, without reasonable excuse, is a contravention of subsection 712(3) of the Act and may attract a maximum penalty $33,000 in respect of a body corporate of $6,600 in respect of an individual”.
  8. No records or documents were received from Quincolli on or before
    19 July 2010. On 20 July 2010, the Fair Work Ombudsman received a letter from the respondents advising that the Notice would not be complied with and then on 26 July 2010, the Fair Work Ombudsman received a letter from the respondents dated 21 July 2010 setting out the reasons for not complying with the Notice[113]. Those reasons, in summary, were that the request was onerous, the documents sought did not exist in “written form”, all relevant documents had already been provided, nothing further would alter the course that the Fair Work Ombudsman had embarked upon, the company would not be able to pay any penalty imposed and that the complaint and investigation had damaged the reputation of Mr and Mrs Potter and was vindictive.
  9. The Fair Work Ombudsman disputes that the reasons provided by the respondents in their letter dated 21 July 2010 constitute a reasonable excuse under s.712(4) of the Fair Work Act and submits that Quincolli had in its possession at the time the Notice was served, documents of the kind required to be produced under the Notice.
  10. Documents provided by the Ai Group[114] reveal that Mrs Potter, on behalf of Quincolli, was corresponding with the Ai Group throughout July 2009 in relation to the application of the Clerical NAPSA to Quincolli. The evidence also discloses that Mrs Potter contacted the Workplace Authority and Fair Work Australia in July 2009 seeking information on award coverage[115] and made file notes of these conversations[116].
  11. The Fair Work Ombudsman therefore submits that Quincolli failed without reasonable excuse to produce any records or documents (other than legal advice), relating to whether or not the Clerical NAPSA applied to the business of Quincolli.
  12. I accept that submission. Quincolli was uncooperative in the investigation by the Fair Work Ombudsman and did its best to frustrate the investigation, both by challenging the conduct of it and withholding information that would assist it.

The involvement of Mrs Potter in the Notice to Produce contravention

  1. The Fair Work Ombudsman further submits that Mrs Potter had an involvement in the contravention of s.712(3) by Quincolli failing to comply with the Notice to Produce, because she:
    1. was the addressee of the Notice and was required, as a Director of Quincolli with access to such records, to produce the records or documents specified in the Notice;
    2. was served the Notice by registered post and signed the delivery confirmation upon the receipt of the Notice;
    1. wrote a letter to the Fair Work Ombudsman dated 16 July 2010 advising that the Notice would not be complied with;
    1. wrote a letter to the Fair Work Ombudsman dated 21 July 2010 advising of the reasons for not complying with the Notice;
    2. was the addressee of the letter dated 12 August 2010 from the Fair Work Ombudsman further requesting that the records or documents be produced by 20 August 2010; and
    3. had access to the records or documents of the type requested in the Notice and has now included some of those records requested in the respondents’ evidence[117].
  2. I accept that submission. Mrs Potter was the controlling mind of Quincolli, at least insofar as it dealt with the Fair Work Ombudsman’s investigation. She took a calculated decision not to comply with the Notice to Produce, which was consistent with her hostile attitude to the investigation by the Fair Work Ombudsman.

The Court’s approach to determining penalty

  1. As was agreed at the end of the trial of this matter, I will hear the parties before ruling on the imposition of penalties. It is appropriate, however, at this stage to set out the basic principles that apply to the fixing of penalties under the legislation.
  2. There is authority from the New South Wales Court of Appeal to the effect that in a civil penalty proceeding a Court should approach the determination of the contravention issue and penalty in a two stage process[118]. In Forge, the Court of Appeal concluded that while a person might waive the right to a separate hearing on penalty, it is incumbent upon the relevant tribunal to draw the right specifically to the person’s attention and incumbent upon an applicant in such proceedings to draw the Court’s attention to that issue[119]. The Fair Work Ombudsman did so in this case.
  3. Bearing those issues in mind, and consistently with the submissions of the Fair Work Ombudsman, the following principles should be taken into account in determining the question of appropriate penalty.
  4. The first step for the Court is to identify the separate contraventions involved. Each breach of each separate obligation found in the Workplace Relations Act and Fair Work Act in relation to each employee is a separate contravention[120].
  5. Secondly, the Court should consider whether the breaches arising in the first step constitute a single course of conduct[121].
  6. Thirdly, to the extent that two or more contraventions have common elements, this should be taken into account in considering what is an appropriate penalty in all the circumstances for each contravention. The Respondents should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to what the Respondents did[122]. This task is distinct from and in addition to the final application of the “totality principle”[123].
  7. Fourthly, the Court should consider the appropriate penalty for the single breach(es) and, if relevant, each group of contraventions, taking into account all of the relevant circumstances.
  8. Finally, having fixed an appropriate penalty for each group of contraventions or course of conduct, the Court should take a final look at the aggregate penalty, to determine whether it is an appropriate response to the conduct which led to the breaches[124]. The Court should apply an “instinctive synthesis” in making this assessment[125]. This is what is known as an application of the “totality principle”.
  9. The factors relevant to the imposition of a penalty under the Workplace Relations Act have been summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 (Pangaea), [26]-[59], as follows:
    1. the nature and extent of the conduct which led to the breaches;
    2. the circumstances in which that conduct took place;
    1. the nature and extent of any loss or damage sustained as a result of the breaches;
    1. whether there had been similar previous conduct by the defendant;
    2. whether the breaches were properly distinct or arose out of the one course of conduct;
    3. the size of the business enterprise involved;
    4. whether or not the breaches were deliberate;
    5. whether senior management was involved in the breaches;
    6. whether the party committing the breach had exhibited contrition;
    7. whether the party committing the breach had taken corrective action;
    8. whether the party committing the breach had cooperated with the enforcement authorities;
    1. the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
    1. the need for specific and general deterrence.
  10. This summary was adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080, [14]. While the summary is a convenient checklist, it does not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion: Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550, [11]; Merringtons at [91] per Buchanan J.

Conclusion

  1. On the evidence, Quincolli contravened the provisions outlined at [2] above. On the evidence, Mrs Potter had knowledge of the Clerical NAPSA, decided to make workplace agreements for its employees yet failed to ensure that these agreements were actually lodged with the relevant authority. Mrs Potter was advised by the Fair Work Ombudsman during its investigation that the Clerical NAPSA applied to Quincolli. Mrs Potter was at all times the controlling mind of Quincolli and was involved in the contraventions, within the meaning of s.728(2) of the Workplace Relations Act and s.550(2) of the Fair Work Act. I will make declarations reflecting the Court’s findings on liability.
  2. I will hear the parties as to penalty and costs.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Driver FM


Date: 28 November 2011

[1] Formerly known as Well Done Group Pty Ltd.
[2] Affidavit of Darren John Lang (Lang Affidavit) sworn 4 November 2010 at [6].
[3] Lang Affidavit at [28] and affidavit of Brian Forbes affirmed on 5 November 2010 at [17]-[26].
[4] Amy Farnham, Christine Kiely, Leanne Laverty and Lynette Richardson.
[5] Affidavit of Judith Madge Potter made on 4 January 2011 (Potter Affidavit #2) at [20]-[21] and [25]-[28].
[6] The deponents are Leigh Williams, Kellie Maree White, Doonan Stewart, Robyn Margaret Wearn, Avis Frances Sampson, Lynette Richardson, Leanne Karen Laverty, Christine Mary Kiely, Vivien Jones, Amy Rose Farnham and Linley Dorothy Brumerskyj.
[7] Pages 16 to 22 of the respondents’ submissions.
[8] Paragraph 49, page 22 of the respondents’ submissions.
[9] Paragraph 12 to 55 of the Amended Statement of Claim.
[10] Respondents’ submission at [41], [44], [48].
[11] Respondents’ submission at [49].
[12] See [60].
[13] See for example Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409 at 415; Waterboard v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497.
[14] See for example Fair Work Ombudsman v Centennial Financial Services FMCA [2010] 863 (15 November 2010 pars 152–162.
[15] Paragraph 1 and 2(b) of the respondent’s submissions.
[16] Paragraph 2(a).
[17] Paragraphs 28 to 47 of the final submissions.
[18] Paragraph 87 to 89 of the respondents’ submissions.
[19] Paragraph 63 of page 26 of the respondents’ submissions.
[20] Schedule C to applicant’s final submissions.
[21] Paragraph 39 of the final submissions in relation to indicative tasks and paragraphs 16 to 25 in relation to the grading of employees.
[22] Paragraph 78 to 81 of the respondents’ submissions.
[23] (2001) 106 IR 217
[24] Paragraphs 70 to 78 of the Respondents’ submissions.
[25] [2010] FCA 756 at paragraph 26.
[26] Paragraph 70 of page 29 of the respondents’ submissions.
[27] Pages 28 to 31 of the respondents’ submissions.
[28] Respondent’s submission par. 81
[29] Respondent’s submission par. 81
[30] Paragraphs 77 to 81 of the final submissions.
[31] See pages 45 to 48 of the Respondents’ submissions.
[32] Paragraph 161, 178, 179 and 134[sic] on pages 59 and 60 of the respondents’ submissions.
[33] Pages 38 to 44 of Tab 12 of Exhibit DL1 to the affidavit of Darren Lang sworn on 4 November 2010 (Exhibit DL1).
[34] Pages 7 to 19 of Tab 12 of Exhibit DL1.
[35] Pages 48 to 49 of Tab 12 of Exhibit DL1 .
[36] For example, the classification of Lynette Richardson as a Grade 4 as she was employed as a team leader/supervisor. See Inspector Lang’s calculation explanation at Tab X of Exhibit DL1.
[37] [2010] FMCA 315 (21 May 2010)
[38] Paragraph 5 [sic] of page 70 of the respondents’ submissions.
[39] Paragraph 10 and 11 of the affidavit of Brian Forbes affirmed on 5 November 2010.
[40] Paragraph 5 and 6 of the affidavit of Brian Forbes.
[41] Paragraph 15 and 16 of the affidavit of Brian Forbes.
[42] Paragraph 12 of page 7 of the respondents’ submissions.
[43] Paragraph 113.
[44] Paragraph 8 of the affidavit of Darren Lang sworn on 5 November 2011.
[45] Paragraph 17 of the affidavit of Darren Lang sworn on 5 November 2011.
[46] Paragraph 10 of page 5 and paragraph 11 of page 6 of the respondents’ submissions.
[47] Paragraph 13 of page 7 of the respondents’ submissions.
[48] Amy Farnham, Christine Kiely, Leanne Laverty and Lynette Richardson.
[49] T 8.3.11 p42.35 – 44.36
[50] The respondents advised the applicant that Ms Farnham had been ill and returned home and that Ms Laverty had left the court and was not contactable.
[51] Respondents’ submissions par. 17
[52] Respondents’ submission par. 9(b)
[53] Paragraph 30 of page 12 and paragraph 31 of page 13 of the respondents’ submissions.
[54] Respondents’ submission par.30
[55] Paragraph 2 of page 1 of the respondents’ submissions.
[56] As asserted by the respondents in par. 6
[57] http://www.fairwork.gov.au/guidancenotes/GN-1-FWO-Litigation-Policy.pdf
[58] Paragraph 6 of page 3 of the respondents’ submissions.
[59] Respondents’ submission pars 35 and 36
[60] See DL1 Tab 31, letter second respondent to Inspector Lang
[61] Par. 41
[62] [2011] FMCA 849
[63] In Fortron Automotive Treatments Pty Ltd v Jones & Ors (No 4) [2011] FMCA 854 the Court considered the issues further and found no jurisdictional impediment.
[64] Chris Merritt “Suit puts ‘court’s decision at risk’”, The Australian November 2, 2011, page 3.
[65] Hansard, Senate, 1 November 2011, pages 96-98.
[66] SZQKE v Minister for Immigration & Anor [2011] FMCA 846.
[67] “the Federal Magistrates Litigation”.
[68] “JP Act”. Under s.4(1) of the JP Act a “Judge means, amongst other things, “a Justice or Judge of a federal court (other than the Federal Magistrates Court)”.
[69] “FM Act”.
[70] FM Act, s.8.
[71] FM Act, s.8(4).
[72] Evidence Act 1995 (Cth), s. 154
[73] “Judiciary Act”.
[74] Legal Services Direction 2005, Appendix B, cl.1.
[75] Legal Services Direction 2005, Appendix B, cl.2.
[76] Legal Services Direction 2005, Appendix B, Note 2.
[77] See Part 3 of Schedule 8 to the Workplace Relations Act.
[78] See table in s.539 of the Fair Work Act and item 16 Schedule 16 of the Transitional Act for list of civil remedy provisions.
[79] Section 719(4)(a) of the Workplace Relations Act and s.546(2) of the Fair Work Act.
[80] Section 4 of the Workplace Relations Act and s.12 of the Fair Work Act.
[81] Affidavit Judith Madge Potter located behind Tab B of folder of affidavits filed on 5 January 2011 (Potter Affidavit #2), at [15].
[82] Potter Affidavit #2 at [16]-[19].
[83] Potter Affidavit#2 at [22].
[84] Amy Farnham, Christine Kiely, Leanne Laverty and Lynette Richardson.
[85] Potter Affidavit #2 at [20]-[21] and [25]-[28].
[86] Subsections 344(2) and (3) of the Workplace Relations Act.
[87] See the Evidence Act 1995 (Cth), s.160.
[88] Angus Fire Armour Australia Pty Ltd v Collector of Customs [1988] FCA 339; (1988) 19 FCR 477, 489.
[89] Lang Affidavit at [28] and affidavit of Brian Forbes affirmed on 5 November 2010 at [7]-[26] (Forbes Affidavit).
[90] Potter Affidavit #2, at [22].
[91] Section 171(1) of the Workplace Relations Act.
[92] Tab 16 of Exhibit DL1 to the Lang Affidavit.
[93] Document entitled “Australian Workplace Agreement” located at page 3 behind Tab 4 of Exhibit WDG1 to Affidavit of Judith Madge Potter sworn 4 January 2011 (Potter Affidavit #1); Affidavit of Judy Potter affirmed on 27 October 2010 at [8]; Affidavit of Peter John Schmarr sworn 4 November 2010 at page 24 (Schmarr Affidavit).
[94] Tab 15 of Exhibit DL1 to the Lang Affidavit.
[95] Schmarr Affidavit at [10]-[13] and the annexure marked “PS3”; Lang affidavit at [11]-[16] and documents located behind Tabs 3 to 5 of Exhibit “DL1”.
[96] Potter Affidavit #2 at [39(a)].
[97] Annexure marked “PS-3” to the Schmarr Affidavit.
[98] Affidavit of Amy Farnham affirmed on 2 December 2010 at [8]; Affidavit of Christine Kiely affirmed on 3 December 2010 at [8]; Affidavit of Leanne Laverty affirmed on 2 December 2010 at [8]; Affidavit of Lynette Richardson affirmed on 3 December 2010 at [8].
[99] FCU v Kingmill Pty Ltd t/as Thrifty Car Rental (Matter no. IRC6472 of 1997, per Glynn J, 17 December 1999); Ware v O’Donnell Griffin (Television Services) Pty Ltd 1971 AR 18; Federated Clerks’ Union of Australia (NSW Branch) v Australian Workers Union [1971] AR (NSW) 419, Sheldon J; Tucker v Rising Sun Towing Service Pty Ltd 7 IR 75.
[100] Subclause 5.5 provides that shift loadings and overtime are payable in addition to the casual hourly rate of pay.

[101] Yorke & Anor v Lucas [1985] HCA 65; (1985) 158 CLR 661 at pp 666 and 667; Armstrong v Bigeni Contracting Pty Ltd & Anor [2008] FMCA 485 at 23.
[102] Lang Affidavit sworn on 4 November 2010 at [6].
[103] Lang Affidavit at [25] and page 5 of record of interview located behind Tab 12 of Exhibit DL1.
[104] Lang Affidavit at [25] and page 5 of record of interview located behind Tab 12 of Exhibit DL1.
[105] Lang Affidavit at [25] and page 22 of record of interview located behind Tab 12 of Exhibit DL1.
[106] Potter Affidavit #2 Potter at [12].
[107] Potter Affidavit #2 at [16]-[21];
[108] Page 6 of documents produced by Australian Industry Group on 20 July 2010 located behind Tab 26 of Exhibit DL1 to Lang Affidavit.
[109] Lang Affidavit at [39].
[110] Affidavit of Nigel Smith affirmed on 4 November 2010 at 14 paragraph.
[111] Section 670 and 682 of the Fair Work Act.
[112] Lang affidavit sworn on 4 November 2010 at [40]-[43].
[113] Lang affidavit sworn on 4 November 2010 at [45], [46] and [49].
[114] Lang affidavit sworn on 4 November 2010 at [47] and documents behind Tab 26 of Exhibit DL1.
[115] Lang affidavit sworn on 4 November 2010 at [39]; Potter Affidavit #2, at [22].
[116] See file notes located behind Tab 12 in Exhibit WDG1 to Potter Affidavit #1.
[117] File notes appearing at Tab 12 of Exhibit WDG1 of First Potter affidavit.
[118] Forge v ASIC [2004] NSWCA 448; (2004) 52 ACSR 1 at 93 [426] per McColl JA.
[119] Forge, at 92-3 [419]-[442] per McColl JA.
[120] Gibbs v Mayor, Councillors and Citizens of City of Altona [1992] FCA 374; (1992) 37 FCR 216 at 223; McIver v Healey [2008] FCA 425 at [16] (unreported, Federal Court of Australia, 7 April 2008, Marshall J).
[121] Subsection 719(2) of the Workplace Relations Act and s.557(1) of the Fair Work Act.
[122] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [46] (Graham J) (unreported, Full Court of the Federal Court of Australia, 20 February 2008, Gray, Graham and Buchanan JJ) (Merringtons).
[123]Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [41]- [46] (Stone and Buchanan JJ) (unreported, Full Court of the Federal Court of Australia, 7 May 2008, Gyles, Stone and Buchanan JJ) (Mornington Inn).
[124] See Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 at [30] (Tracey J) (Kelly); Merringtons, supra at [23] (Gray J), [71] (Graham J) and [102] (Buchanan J).
[125] Merringtons, supra at [27] (Gray J) and [55] and [78] (Graham J).

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