WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2019 WAIRC 00138

DELIVERED : Wednesday, 6 February 2019

FILE NO. : M 120 OF 2018

CLAIMANT

AND

Dalche Enterprises Pty Ltd (ACN: 618909041)

Respondent

Legislation : Fair Work Act 2009 (Cth)
Migration Act 1958 (Cth)

Case(s) referred to
in reasons : Miller v Miller (2011) 242 CLR 446

  Williamson v Bumford (2016) WAIRC 190

Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886

Wright v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 887

Hussein v Secretary of the Department of Immigration & Multicultural Affairs (No 2) [2006] FCA 1263

Fair Work Ombudsman v Bosen Pty Ltd & Anors (unreported)

Fair Work Ombudsman v Shafi Investments Pty Ltd [2012] FMCA 1150

Gnych v Polish Club Limited [2015] HCA 23

Williamson -v- Richard and Joanne Bumford, Balayage Hair Studio [2016] WAIRComm 186

Ghimire v Karriview Management Pty Ltd and Sharma v Karriview Management Pty Ltd [2018] FCCA 2157

Tran v Hoang Trang Family Trust and Phi and Mai Family Trust Trading as Lido Restaurant [2018] WAIRComm 85

Result : Judgment for the claimant

Representation:

Claimant : Ms N. Gill (in person)

Respondent : Mr D. Cheema (director)

REASONS FOR DECISION

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by his Honour)

Introduction and Summary

1         ‘Narrogin Curry Palace’ opened for business on 30 August 2017 with Ms Gill working in the business as the cook. Dalche Enterprises Pty Ltd (the Company) was the tenant of the premises from which the business operated and contributed some capital towards the commencement of the business. The Company also nominated itself as the employer of Ms Gill on an application to the Department of Immigration and Border Protection (DIBP), seeking a visa for Ms Gill pursuant to the Regional Sponsored Migration Scheme (the Regional Visa Application). Included with the Regional Visa Application was a document entitled, ‘Employment Contract’ (the Employment Contract Document or ECD). The ECD commenced by stating:

This document outlines the terms of contract of employment proposed by Mr Daljeet Cheema [and] Navdeep Gill [for the position of] Full Time Cook [with a commencement date of] 30 August 2017 [for] at least 2 years from the date of Visa Grant.

2         Mr Daljeet Cheema is the sole director of the Company. The content of the ECD resembles an unremarkable written contract of employment including terms on hours, penalty rates, remuneration (of $47,965 per annum) leave and termination. The ECD ends by stating, ‘I accept the offer of employment and agree to the terms and conditions as stated in this contract’. The ECD was signed by Mr Daljeet Cheema and Navdeep Gill on 16 August 2017 (albeit, inexplicably, Mr Daljeet Cheema signed adjacent to ‘Employee’ and Ms Gill adjacent to ‘Employer’). Narrogin Curry Palace ceased trading and Ms Gill ceased working on 23 October 2017.

3         Ms Gill alleges that the ECD accurately records the terms of a contract of employment between herself and the Company and that, in breach of that contract, the Company made no salary payments to her notwithstanding her work in the Narrogin Curry Palace. If proven, the breach would be a breach of an obligation imposed by the Fair Work Act 2009 (Cth) (FW Act) (s 323) which obligation is also a ‘safety net contractual entitlement’ under the FW Act (s 139(1)).

4         Ms Gill also alleges that the Company failed to give the minimum required period of notice of termination of employment required by the FW Act (s 117) and made no payments on account of accrued annual leave as required by the FW Act (s 90). Ms Gill seeks orders for amounts that the Company was required to pay because of a safety net contractual entitlement ($15,019.03 unpaid salary) or because of the FW Act ($922.26 in lieu of notice of termination and $622.52 in accrued annual leave.) If Ms Gill’s allegations are proven, the Court has jurisdiction to make the orders that she seeks in these small claim proceedings: FW Act, s 548(1A).1

5         The Company’s response to Ms Gill’s claim is twofold.

6         First, the Company disputes that the ECD accurately reflects the whole of the contractual arrangements between the parties. The Company alleges that the ECD was created pursuant to an oral agreement made in the period December 2016 – April 2017 between Mr Baljeet Cheema, on behalf of the Company, and Ms Gill. Under the oral agreement:

• the Company promised to take the steps necessary to assist Ms Gill to obtain a visa pursuant to the Regional Visa Application including leasing of premises for the business and making application to the DIBP;
• Ms Gill promised to assume responsibility for running the business and to meet all the expenses of the business;
• after a reasonable time, the Company would sell the business to Ms Gill.

7         If the oral agreement is proven, the Company had no obligation make salary payments adverted to in the ECD because any work being done by Ms Gill in the Narrogin Curry Palace was not being done as employee of the Company. The effect of the agreement alleged by the Company is that, as a matter of law, any work done by Ms Gill was being done as a party to a joint venture between Ms Gill and the Company or as an independent contractor to the Company. Either way, the effect of the Company’s case is that Ms Gill is not a national system employee and her claim under the FW Act must fail for want of jurisdiction (s 5, s 13).

8         I am satisfied that Ms Gill did engage in the hours of work as alleged in her originating claim. In support of this finding, I rely upon the uncontradicted evidence of Ms Gill and Mr Santveer Thind describing the work performed by Ms Gill and the documents adduced in evidence consistent with the Narrogin Curry Palace trading over the relevant period.

9         The issue for me to determine is whether the Ms Gill has proven, on the balance of probabilities, that she was an employee of the Company on terms contained in the Employment Contract Document.

10      For oral reasons to be delivered by me at the time of publication of this written summary2, I have concluded that Ms Gill was an employee of the Company on terms contained in the ECD subject to the application of the doctrine of rectification to record the Company as Ms Gill’s employer in place of ‘Daljeet Cheema’.

11      Secondly, the Company observes that ‘a contract whose making or performance is illegal will not be enforced’: Miller v Miller (2011) 242 CLR 446 [24], quoted in Williamson v Bumford (2016) WAIRC 190. The Company alleges that work done by Ms Gill, a non-citizen, between August - October 2017 in the Narrogin Curry Palace contravened the conditions of her visa. The work was said to be an instance of the performance of a contract that was made illegal. It is an offence under the Migration Act 1958 (Cth) (Migration Act) for a non-citizen to contravene visa conditions that prohibit or restrict the visa holder from working (s 235). It is also an offence for an employer to allow a non-citizen to contravene the same visa conditions (s 245AC) ). The Company argues that Ms Gill’s claim to unpaid salary based on a contract of employment for work that is a contravention of a visa condition is unenforceable. The Company also argues that the statutory entitlement of employees to a minimum required period of notice of termination of employment (s 117) and to payments on account of accrued annual leave (s 90) provided by the FW Act is qualified as a result of the creation of the offence under the Migration Act for non-citizens to contravene visa conditions that prohibit or restrict the visa holder from working.

Two issues arise for my determination.

12      First, whether the Company has proven, on the balance of probabilities, that Ms Gill’s claim includes a claim for work done when she contravened a condition of her visa by working in the period August-October 2017?

13      For oral reasons to be delivered by me at the time of publication of this written summary, I have concluded that insofar as Ms Gill’s claim is based upon working more than 40 hours per fortnight for the period to 30 September 2017, it is a claim done for work that was in breach of her Student (Temporary) Visa conditions. The Company knew of and allowed Ms Gill to engage in this breach of her visa conditions. I have also concluded that insofar as her claim is based upon work after 30 September 2017, Ms Gill’s Bridging A (Subclass 010) Visa was not subject to any conditions that limited her right to work for the Company.

14      Secondly, I must determine the effect upon an (otherwise good) claim under the FW Act where proof of the claim involves proof of conduct which may involve offences by Ms Gill under the Migration Act (contravening a visa condition) and the Company (allowing work by a person in breach of a visa condition).

15      For oral reasons to be delivered by me at the time of publication of this written summary, I have concluded that, properly construed, the Migration Act, does not prohibit her claim insofar as it is based upon her contract of employment with the Company or preclude her claim under the FW Act.3

M. FLYNN

INDUSTRIAL MAGISTRATE

1 This court has jurisdiction in a small claim proceeding to make orders for a claim based upon a contravention of section 323 of the FW Act where, as in Ms Gill’s claim for salary in this case, the claim concerns a ‘safety net contractual entitlement’, see: Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886; Wright v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 887.

2 A transcript of the oral reasons, once completed, will be available to the parties.

3 When delivering those reasons, it will be convenient to use the following terminology:

‘Hussein No 2’ is Hussein v Secretary of the Department of Immigration & Multicultural Affairs (No 2) [2006] FCA 1263; 155 FCR 304; 92 ALD 89; (2006) 157 IR 405

‘Bosen’s case’ is Fair Work Ombudsman v Bosen Pty Ltd & Anors at 33 (unreported, Magistrates Court of Victoria, Industrial Division, 21 April 2011, Magistrate Hawkins)

‘Gynch’s case’ is Gnych v Polish Club Limited [2015] HCA 23 (17 June 2015)

‘Shafi Investments case’ is Fair Work Ombudsman v Shafi Investments Pty Ltd [2012] FMCA 1150

‘Balayage Hair Studio case’ is Williamson -v- Richard and Joanne Bumford, Balayage Hair Studio [2016] WAIRComm 186 (5 April 2016)

‘Ghimire’s case’ is Ghimire v Karriview Management Pty Ltd and Sharma v Karriview Management Pty Ltd [2018] FCCA 2157 (16 August 2018)

‘Melbourne Uni Law Review Article on 7-Eleven’: Berg, Laurie; Farbenblum, Bassina --- ‘Remedies for Migrant Worker Exploitation in Australia: Lessons from the 7-Eleven Wages Repayment Program’ [2018] MelbULawRw 3; (2018) 41(3) Melbourne University Law Review 1035

‘Lido Restaurant case’: Tran v Hoang Trang Family Trust and Phi and Mai Family Trust Trading as Lido Restaurant [2018] WAIRComm 85.