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[2026] NSWIC 37
General information, not legal advice.
Industrial Court
2026-07-13
Paingakulam J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ahmed v Jazaa Accountants Pty Ltd [2026] NSWIC 37
Hearing dates: 10-11 March 2026
Date of orders: 13 July 2026
Decision date: 13 July 2026
Before: Paingakulam J
Decision: (1) I direct the parties to file consent orders giving effect to my decision, or if agreement cannot be reached, to file competing orders within 7 days.
(2) I will hear the parties as to the pecuniary penalties to be imposed on the First Respondent and the Second Respondent.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Application for recovery of money and orders for civil penalties — Underpayment of wages — Failure to pay accrued annual leave and long service leave — Breaches of the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) — Owner involved in contraventions — Orders made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Fair Work Act 2009 (Cth)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Fair Work Regulations 2009 (Cth)
Cases Cited: Australian Education Union v Victoria (Department of Education and Early Childhood Development) (2015) 255 IR 341; [2015] FCA 1196
Bakers Delight Holdings Ltd v Fair Work Ombudsman [2025] FCAFC 144
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Construction, Forestry, Mining and Energy Union v Clarke v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87
Dietrich v Dare (1980) 54 ALJR 388
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Fair Work Ombudsman v Make Dough Enterprises (In Liq) [2024] FCA 1432
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258
Fair Work Ombudsman v Woolworths Group Ltd [2025] FCA 1092
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
Ghimire v Karriview Management Pty Ltd (No 2) (2019) 290 IR 331; [2019] FCA 1627
Pacesetter Homes Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1994) 57 IR 449
Physiotherapy Services (No 2) [2025] FCA 146
Re McGee; Re Inquiry into Elections for Offices within Transport Workers Union and the Victorian Branch thereof (1992) 41 IR 27
Siddiqui v Thomas and M Irfan Pty Ltd t/as Mowbray
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Woolworths v Kelly (1991) 22 NSWLR 189
Category: Principal judgment
Parties: Nafees Ahmed (Applicant)
Jazaa Accountants Pty Ltd (First Respondent)
Jawwad Khan (Second Respondent)
Representation: Counsel:
J Pen (Applicant)
M Sahade (Respondents)
Solicitors:
Redfern Legal Centre (Applicant)
Shaheen Legal (Respondents)
File Number(s): 2025/204605
Publication restriction: Nil
After a four-month period of unpaid work experience in the business of Jazaa Accountants Pty Ltd (Jazaa) owned and operated by Muhammad Jawwad Khan (Mr Khan), Nafees Ahmed (Mr Ahmed) was a paid employee from 1 June 2023 until 8 July 2024. Mr Ahmed seeks orders for civil penalties against Jazaa in respect of a series of alleged breaches of the Fair Work Act 2009 (Cth) (FW Act) and Fair Work Act Regulations 2009 (Cth) (FW Regulations) by Jazaa arising from this employment. Mr Ahmed also seeks the recovery of monies together with interest up to judgment. Mr Ahmed seeks similar orders against Mr Khan in addition to an order that Mr Khan was a person involved in those same contraventions.
A number of the alleged breaches of the FW Act were not contested by Jazaa and Mr Khan. The principal issues to be determined by these proceedings are:
Was Mr Ahmed an employee or a volunteer trainee for the purposes of obtaining work experience in the period between 8 February 2023 and 31 May 2023?
Did Mr Ahmed work the hours during his employment as alleged?
Did Jazaa or Mr Khan require Mr Ahmed to make a payment of $15,000 towards the cost of a sponsorship visa?
I have determined that Mr Ahmed was an employee between 8 February 2023 and 31 May 2023. In respect of Mr Ahmed’s claim for compensation, I proceed on the basis that Mr Ahmed worked the alleged hours from 8 February 2023 until 8 July 2024 in that capacity. I find that he was not provided with pay slips, or his annual leave and superannuation termination pay entitlements. However, I dismiss the allegation that Jazaa and Mr Khan required Mr Ahmed to make a payment of $15,000 towards the cost of a sponsorship visa.
On 28 May 2025, Mr Ahmed filed an Application for Recovery of Money and/or Civil Penalties against Jazaa (initial application). The initial application sought orders pursuant to ss 44 (in respect of breaches of ss 62 and 90(2)), 293, 323, 535, 536, 539, 546, and 550 of the FW Act and FW Regulations, as well as the Superannuation Guarantee (Administration) Act 1992 (Cth) and s 100 of the Civil Procedure Act 2005 (NSW) (CPA). The initial application also sought an order that Mr Khan was involved in the contraventions alleged against Jazaa and an order that he would be jointly liable for civil penalties imposed in respect of those breaches.
On 9 October 2025, Mr Ahmed filed an Amended Application seeking orders pursuant to ss 539, 546 and 550 of the FW Act that Jazaa pay pecuniary penalties in respect of breaches of ss 44 (in respect of breaches of ss 62 and 90(2)), 116B, 293, 323, 325(1), 535 [1] , and 536 [2] of the FW Act and regulations 3.42(1), (3), and/or (4) of the FW Regulations. In addition, Mr Ahmed is seeking orders pursuant to ss 545(3) and 550 of the FW Act that Mr Khan was involved in Jazaa’s contraventions and pecuniary penalty orders in respect of those same breaches. Mr Ahmed seeks a further order that Jazaa and Mr Khan are jointly liable to pay him the total amount of $31,732.75 comprised of:
the sum of $23,106.56 for unpaid wages;
the sum of $4,621.90 for unpaid accrued annual leave; and
the sum of $4,004.29 for unpaid superannuation (noting that Mr Ahmed received a payment from Jazaa in the amount of $4,265.75 for his accrued superannuation entitlements on 1 September 2025).
Finally, Mr Ahmed seeks an order that the respondents pay interest up to judgment pursuant to s 100 of the CPA and s 547 of the FW Act.
Mr Ahmed’s claim is multifaceted and includes: the nature of his engagement with Jazaa in the period February 2023 to 31 May 2023; the hours he was required to work during his various periods of employment with Jazaa; the alleged underpayment of wages; the respondents’ alleged failure to provide him with pay slips or access to other compulsory employee records; and the respondents’ alleged failure to pay him superannuation and his accrued annual leave entitlements at the end of his employment.
Mr Ahmed has identified three claim periods regarding his employment with Jazaa, as follows:
From about 8 February 2023 to 30 May 2023 [3] (First Claim Period);
1 June 2023 to 30 June 2024 (Second Claim Period); and
1 July 2024 to 8 July 2024 (Third Claim Period).
44 Contravening the National Employment Standards
An employer must not contravene a provision of the National Employment Standards.
Note: This section is a civil remedy provision (see Part 4 -1).
62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full - time employee--38 hours; or
(b) for an employee who is not a full - time employee--the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
90 Payment for annual leave
…
(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
116B Employer’s obligation to make superannuation contributions
An employer must make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee.
293 Contravening a national minimum wage order
An employer must not contravene a term of a national minimum wage order.
Note: This section is a civil remedy provision (see Part 4 - 1).
323 Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
Note 1: This subsection is a civil remedy provision (see Part 4 - 1).
325 Unreasonable requirements to spend or pay amount
(1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee’s money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:
(a) the requirement is unreasonable in the circumstances; and
(b) for a payment--the payment is directly or indirectly for the benefit of the employer or a party related to the employer.
Note: This subsection is a civil remedy provision (see Part 4 - 1).
535 Employer obligations in relation to employee records
(1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
Note: This subsection is a civil remedy provision (see Part 4 - 1).
(2) The records must:
(a) if a form is prescribed by the regulations--be in that form; and
(b) include any information prescribed by the regulations.
Note: This subsection is a civil remedy provision (see Part 4 - 1).
(3) The regulations may provide for the inspection of those records.
Note: If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.
(4) An employer must not make or keep a record for the purposes of this section that the employer knows is false or misleading.
Note: This subsection is a civil remedy provision (see Part 4 - 1).
(5) Subsection (4) does not apply if the record is not false or misleading in a material particular.
536 Employer obligations in relation to pay slips
(1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
Note 1: This subsection is a civil remedy provision (see Part 4 - 1).
…
(2) The pay slip must:
(a) if a form is prescribed by the regulations--be in that form; and
(b) include any information prescribed by the regulations; and
(c) not include any information prescribed by the regulations in relation to paid family and domestic violence leave; and
(d) comply with any requirements prescribed by the regulations in relation to the reporting of paid family and domestic violence leave.
Note 1: This subsection is a civil remedy provision (see Part 4 - 1).
Note 2: If an employer fails to comply with subsection (1) or (2), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.
(3) An employer must not give a pay slip for the purposes of this section that the employer knows is false or misleading.
Note: This subsection is a civil remedy provision (see Part 4 - 1).
(3A) A pay slip is not false or misleading merely because it complies with regulations made for the purposes of paragraph (2)(d).
(4) Subsection (3) does not apply if the pay slip is not false or misleading in a material particular.
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision
…
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Records — inspection and copying of a record
(1) For subsection 535 (3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.
Note: Subregulation (1) is a civil remedy provision to which Part 4 - 1 of the Act applies. Division 4 of Part 4 - 1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
…
(3) If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must:
(a) make the copy available at the premises within 3 business days after receiving the request; or
(b) post a copy of the employee record to the employee or former employee within 14 days after receiving the request.
Note: Subregulation (3) is a civil remedy provision to which Part 4 - 1 of the Act applies. Division 4 of Part 4 - 1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
(4) If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request.
(a) make the copy available at the premises; or
(b) post a copy of the employee record to the employee or former employee.
Note 1: Subregulation (4) is a civil remedy provision to which Part 4 - 1 of the Act applies. Division 4 of Part 4 - 1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
The Industrial Court has the power to make the orders sought by the applicant in respect of the alleged underpayments pursuant to s 545(3) of the FW Act.
Section 546 of the FW Act governs the Court’s ability to impose a pecuniary penalty on a person that has contravened a civil remedy provision.
Mr Ahmed relies on his two affidavits sworn 11 December 2025 and 20 February 2026 in which he gave evidence of the circumstances by which he came to be employed by Jazaa and his interactions with Mr Khan in the course of that employment.
Mr Ahmed was born in Pakistan. He came to Australia in 2015 on a student visa. On completing his studies in June 2019, he transferred to a temporary graduate visa and returned to Pakistan between 2020 and 2022. He came back to Australia in 2022 and worked as an Uber driver while he attempted to secure work as an accountant.
Mr Ahmed’s evidence was that on 2 or 3 February 2023, he was introduced to Mr Khan by a friend he had studied with, Absar Ahmed Siddiqui (Mr Siddiqui), who told him that Mr Khan was looking for people to start immediately in his new accounting firm. Mr Ahmed stated that, at a lunch attended by the three men, Mr Khan told him that he was looking for a full-time accountant to work for him on a long-term basis, but that he could not afford to pay that person until June 2023, when the business would be busy.
Mr Ahmed’s evidence was that he told Mr Khan that he was looking for a full-time long-term role. Mr Ahmed further stated that he agreed to the arrangement because he wanted to get experience as an accountant in Australia and that, if he was paid from June 2023, he considered the opportunity to be a good one.
Mr Ahmed stated that Mr Khan, as the only other paid employee of Jazaa, was his manager during the entirety of his employment. Mr Khan provided him with instructions about the work he was to do and the timeframe in which that work was to be completed. Mr Ahmed further stated that Mr Khan was responsible for paying him and that the payments which he received were paid from a bank account in Mr Khan’s name.
A number of the allegations are based on an Excel spreadsheet created by Mr Ahmed for the purposes of these proceedings, setting out the hours that he worked between February 2023 and July 2024. Mr Ahmed’s evidence was that he had no contemporaneous records of the hours that he had worked for Jazaa, that he did not now recall the exact hours or dates that he had worked and that, in November 2024, he set up a spreadsheet setting out the hours that he had worked on different days to the best of his recollection at that time. That spreadsheet records him as having worked a total of 3,081.5 hours for Jazaa.
Mr Ahmed stated that, between 8 February 2023 and 31 May 2023 (First Claim Period), he worked approximately 20 hours per week for Jazaa, reporting directly to Mr Khan and that he also worked as an Uber driver to support himself, as he did not receive payment from Jazaa. Mr Ahmed stated that he worked from 2pm to 5:30pm or 6:30pm during that period, performing tasks that assisted Jazaa to earn an income, using a laptop provided by Jazaa that gave him access to the firm’s accounting software. During the First Claim Period, Mr Ahmed worked on income and financial statements, as well as preparing income and GST tax documents for clients of Jazaa.
Mr Ahmed stated that in May 2023, he asked Mr Khan for a loan, because he needed money and that Mr Khan paid him $2,000 which he understood to be a payment in recognition of the unpaid work that he had been doing for Jazaa. Mr Ahmed stated that he was not told that the money was a loan and did not agree to receiving the money on that basis.
From 1 June 2023 to 30 June 2024, Mr Ahmed performed similar work and also began contacting the Australian Taxation Office (ATO) on behalf of Jazaa’s clients. His evidence was that he typically worked about 53 hours per week, Monday to Friday from 9:30am to between 6pm to 9pm. However, Mr Ahmed stated that the workload was particularly high in the months of June and July, coinciding with the end of the financial year and during that period he worked until anywhere from 11pm to 1am. Mr Ahmed’s evidence was that he worked the additional hours out of a concern that he would lose his job if he refused to do so, and that there was an implied expectation that he would work the additional hours as necessary to meet the workload allocated to him. Mr Ahmed stated that he was paid weekly during that period a total of $44,440 and that he received a further $1,200 over that period in “random extra amounts” of cash when performing large amounts of overtime. Mr Ahmed did not keep contemporaneous records of the hours that he worked or the cash payments that he received and stated that he has subsequently attempted to reproduce that information to the best of his recollection.
Mr Ahmed stated that in the third week of June 2024, Mr Khan asked him to work 7 days per week from 9am to 12am for an additional $500 per week. Mr Ahmed stated that he declined to do the weekend work but that he agreed to do the additional hours from Monday to Friday. He therefore worked from 9am to 12am on weekdays in the period 1 July 2024 to 5 July 2024. Again, Mr Ahmed stated that he did not keep a contemporaneous record of the hours that he worked and has since recorded them to the best of his recollection.
Mr Ahmed stated that he did not receive any pay slips during the period that he was employed by Jazaa. He acknowledged that, in about October 2023, Mr Khan asked him if he would generate his own pay slips if he were given access to Jazaa’s Xero account, used for keeping employee records. His account is that he said that he would prefer Jazaa to do it and that he did not receive any pay slips thereafter during the period of his employment.
Mr Ahmed further stated that he was not paid during periods of annual leave and sick leave throughout his employment and that, on 11 July 2025, he received a payment of $2,173.54 representing his unused annual leave. Mr Ahmed stated that he believes the correct figure is $4,621.90.
Mr Ahmed gave evidence that he did not receive any superannuation payments during his employment and that he received a payment of $4,265.75 on 1 September 2025 on that account. Mr Ahmed further stated that he believes the correct figure is $9,340.70.
Mr Ahmed gave an account of a conversation that he had with Mr Khan in around October or November 2023, during which Mr Khan agreed to sponsor him to remain in Australia, because he told Mr Khan about his intention to move to Western Australia to obtain the benefit of state sponsorship opportunities on offer at that time. Mr Ahmed stated that he had two or three further conversations with Mr Khan on the subject between November 2023 and June 2024, during which Mr Khan made “vague comments” about the relatively low cost of sponsorship with Jazaa when compared with another organisation.
Mr Ahmed gave evidence of a lunch that he had with Mr Khan and a neighbouring migration agent, Aftab Syed (Mr Syed), in late June 2024, during which the migration agent told him that he had a good opportunity to work for and be sponsored by Jazaa. He stated that, on returning to the office after the lunch, Mr Khan told him that sponsorship would cost $15,000 and that he could make the payment to the migration agent by way of instalments if he did not have the money to make the payment upfront. Mr Ahmed’s evidence was that he told Mr Khan that he was not interested in paying for his sponsorship and that he would seek employment elsewhere.
Mr Ahmed stated that he resigned from his employment on 8 July 2024, effective immediately following receipt of an abusive telephone call from a client of Jazaa in the preceding days. Mr Ahmed stated that he raised the matter with Mr Khan and was upset by the lack of care shown by Mr Khan about his wellbeing in dealing with the issue. Mr Ahmed stated that he was overwhelmed and stressed by the work situation and did not attend work on 8 July 2024, instead providing Mr Khan with an email resignation “due to the impact of the unsafe work environment on my health”. Mr Ahmed gave an account of Mr Khan’s immediate request for the repayment of the $2,000 and his agreement to repay it notwithstanding that he understood it to be a payment in respect of work which he performed during the training period.
Finally, Mr Ahmed gave evidence of the attempts that he made following his resignation to obtain employment records including pay slips and a letter setting out the dates that he worked for Jazaa together with his duties in that role. Mr Ahmed gave evidence about the repeated requests made by Mr Khan for the repayment of the $2,000 which was paid to him in May 2023. He provided evidence of the “purported pay slips” which he received on 11 July 2025 which he claimed understate his hours of employment. Mr Ahmed also gave evidence of the payments that he received by way of annual leave and superannuation, to which I have already referred. Mr Ahmed stated that Jazaa’s failure to provide him with the required employment records prevented him from applying for a state nominated visa at the expiry of his temporary graduate visa. Mr Ahmed further stated that he has obtained a visa specifically to enable him to bring the instant proceedings against Jazaa and Mr Khan.
In evidence in chief at hearing, Mr Ahmed gave an account of his conversation with Mr Khan before he commenced working at Jazaa. His account was that, during that conversation, Mr Khan had told him that he would not be paid for the training period and that he would be paid from June 2023, when he commenced full-time work.
In cross-examination, Mr Ahmed accepted that it was made clear to him from the outset that he would be working on an unpaid basis until June 2023, that he was gaining experience during that period and that he thought it was a good opportunity to obtain paid work from June 2023. Mr Ahmed stated that he was asked to attend the office for three to four hours a day during that period. However, he also accepted that he worked as an Uber driver throughout the training period and that the Uber driving often impacted upon the hours that he was able to attend work at Jazaa.
Mr Ahmed accepted that the only other employee of Jazaa during the training period was Mr Khan, who would teach him what he was doing. Mr Ahmed denied that, when Mr Khan was busy, he would simply surf the internet, check emails or sell games. He maintained that when he was at work, he used the internet for work purposes only.
| Dates | Minimum wages | Hours worked | Correct pay | Correct superannuation | | 1 July 2022 - 30 June 2023 | $21.38 | 484 | $10,347.92 | $1,086.53 | | 1 July 2023 - 30 June 2024 | $23.23 | 2,530 | $58,771.90 | $6,464.91 | | 1 July 2024 - 30 June 2025 | $24.10 | 67.5 | $1,626.75 | $187.08 | | Total | | | $70,746.57 | $7,738.52 |
Ms Feldman-Gubbay’s affidavit also annexes calculations made by the Fair Work Ombudsman’s (FWO) annual leave calculator which corroborate her annual leave calculations.
The first letter which Ms Feldman-Gubbay received from the respondents’ solicitor included admissions that Mr Ahmed was owed payment for three weeks’ unused annual leave and that his superannuation payment was also outstanding. The second letter contained an admission that Mr Ahmed had not been paid for 89 hours of work, asserted that proper records had been maintained and attached an Excel spreadsheet created by Jazaa setting out what were said to be the relevant calculations.
In cross-examination, Ms Feldman-Gubbay conceded that the hours worked by Mr Ahmed shown in her Excel spreadsheet were based on Mr Ahmed’s recollection as there were no contemporaneous records available. She accepted that the figures differed from those recorded in the pay slips, which were provided to her well after the calculation was done. Ms Feldman-Gubbay stated that no calculations had been made based on the information from the pay slips provided as Mr Ahmed’s instructions were that they did not correctly record the hours that he had worked.
Mr Khan stated that Jazaa commenced operation in January 2023. At the time he was the only employee as Jazaa could not afford to employ any additional persons. He gave evidence that his wife sometimes helped him with administrative tasks.
Mr Khan’s evidence was that in 2023 he was contacted by Mr Siddiqui who advised that his friend, Mr Ahmed, was looking for work experience to improve his prospect of obtaining a permanent residency visa. Mr Khan’s evidence was that he advised Mr Siddiqui that he had just started his accounting firm and was in no position to take on employees.
Mr Khan stated that in early February 2023, Mr Siddiqui contacted him to say that Mr Ahmed wished to meet him. He agreed to meet with Mr Ahmed and Mr Siddiqui. At that meeting, Mr Ahmed told him that he was looking for work experience so that he could apply for a visa to stay in Australia. Mr Khan’s evidence was that he told Mr Ahmed and Mr Siddiqui that he had commenced his business in January 2023 and was not in a position to hire staff. Mr Khan stated that Mr Ahmed advised that he was happy to work as a volunteer as he needed the experience to be able to apply for a skills visa, and that he could come into Jazaa’s office before or after his Uber shifts. Mr Khan stated that he told Mr Ahmed that he could come into the office whenever he was free, but that he would not be paid. Mr Khan’s evidence was that Mr Ahmed stated that he understood this and that he was only after work experience.
Mr Khan stated that, between 20 February 2023 and 1 June 2023, Mr Ahmed would come into Jazaa’s office to observe his work. His evidence was that Mr Ahmed would come in mid-morning or afternoon and leave before 5pm and that Mr Ahmed had access to Jazaa’s computer which he used for his own personal affairs. Mr Khan stated that Mr Ahmed did not have access to the accounting software during this period, other than on 8 March 2023, when he asked Mr Ahmed to enter a client onto the system, in order to give him some experience with using it. Mr Khan stated that he did not mind Mr Ahmed coming and going from Jazaa’s premises as he was busy and did not need any help.
Mr Khan stated that in May 2023, Mr Ahmed asked him for a loan of $2,000 to pay back another loan. Mr Khan’s evidence was that he agreed to give Mr Ahmed the loan, and that he told Mr Ahmed that the loan would need to be repaid when he was asked to do so. Mr Khan stated that Mr Ahmed agreed to this arrangement.
Mr Khan stated that, in early June 2023, he spoke with Mr Ahmed about the hours he was working for Uber and that Mr Ahmed told him that he preferred to work for Uber in the evenings and late at night because it was busier. Mr Khan stated that he then offered Mr Ahmed part-time employment at Jazaa, and they agreed that Mr Ahmed would work from 9:30am to 1:30pm each day, starting on 5 June 2023.
Mr Khan stated that during the period from 5 June 2023 to 30 June 2024, Mr Ahmed would usually arrive at 9am and would leave at 1:30pm for his Uber shift. Mr Khan stated that a few weeks after Mr Ahmed started working part-time, he began arriving late, sometimes at mid-morning or lunch time, and eventually began arriving in the early afternoon. He stated that Mr Ahmed explained that he was tired from working for Uber the previous night and that Mr Ahmed nevertheless completed the agreed four hours of work each day before leaving to do his next Uber shift.
Mr Khan stated that, during this period, Mr Ahmed asked him for money to meet his rental payments. Mr Khan’s evidence was that he gave money to Mr Ahmed in cash, and that he continued to pay Mr Ahmed his full wages. In addition, Mr Khan stated that, after Mr Ahmed finished work for Jazaa at around 1:30pm, he was permitted to use Jazaa’s computer for personal use, which included selling games online.
Mr Khan stated that during a conversation with Mr Ahmed in early June 2023 about Mr Ahmed working part-time, he told Mr Ahmed that he would be responsible for recording his hours because he would be using this information in his visa application. He explained that this included maintaining an accurate record on Xero of the hours that he had worked, maintaining payroll records of the staff at Jazaa, generating pay slips for Jazaa employees and ensuring that client records were entered into the system. Mr Khan’s evidence was that he told Mr Ahmed that he did not expect or want him to work overtime and that Jazaa was not in a position to pay him overtime.
Mr Khan stated that Mr Ahmed would never tell him when he was sick or taking a holiday. Rather, he would simply not attend work, and he would not provide any explanation for his absence upon his return.
Mr Khan stated that throughout Mr Ahmed’s employment he repeatedly asked Mr Ahmed to provide him with his superannuation fund details, but that Mr Ahmed did not do so until after his resignation. Mr Khan stated that once Mr Ahmed had provided his superannuation fund details, he made a payment into Mr Ahmed’s superannuation account.
Mr Khan stated that in July 2024 he was in the office with another client when he overheard Mr Ahmed yelling on the telephone and telling the caller (who he later found out was a client of Jazaa’s) that he was the only person available to assist him. Mr Khan said that he instructed Mr Ahmed to put the caller on hold or inform him that Mr Khan would return his call, but Mr Ahmed refused to do so. After the call ended, Mr Khan asked for the caller’s name and called the client back. Mr Khan stated that the client told him that he was unhappy with how Mr Ahmed had spoken to him and asked not to deal with Mr Ahmed in the future.
On 8 July 2024, Mr Ahmed did not attend work and sent a message to Mr Khan advising that he was sick. Mr Khan stated that, late that evening, he received Mr Ahmed’s resignation by email. Mr Khan stated that he attempted to contact Mr Ahmed to find out the reasons for his resignation, but Mr Ahmed blocked all attempts to contact him. Mr Khan stated that he sent an email request for Mr Ahmed to return the office keys and that after Mr Ahmed had resigned, clients informed him that Mr Ahmed had been making negative comments about him and Jazaa.
At hearing, Mr Khan corrected his affidavit evidence and stated that Mr Ahmed was working full-time, rather than part-time in the period 1 July 2024 to 8 July 2024, and left work at 5.30pm. In cross-examination, Mr Khan accepted that Mr Ahmed had wanted to work for him to enable him to apply for a permanent residency visa and that they had agreed that there would be an initial period when Mr Ahmed was not paid. He stated that he offered Mr Ahmed paid part-time work from June 2023, and that the arrangement was that Mr Ahmed would work as a volunteer until then. Mr Khan stated that during the initial work experience period, Mr Ahmed did not have fixed hours of work, and that he would simply turn up when he was available. Mr Khan stated that he was content to let Mr Ahmed come and go as he pleased and use Jazaa’s computer during that period.
Mr Khan maintained that in the period between 8 February 2023 and 31 May 2023, he only gave Mr Ahmed a single task and the rest of the time he was simply showing Mr Ahmed the various aspects of the business. Mr Khan stated that during this period, Mr Ahmed never worked four hours on one day.
Mr Khan stated that he gave Mr Ahmed $2,000 as a loan and that he did not say the money was for the training period. Mr Khan’s account was that he told Mr Ahmed that the money was to be repaid when he was able to do so.
Mr Khan accepted that Mr Ahmed became an employee of Jazaa in June 2023. He accepted that he had controlled Mr Ahmed’s working hours and the transfer of his wages. He maintained that production of the pay slips had been Mr Ahmed’s responsibility. He accepted that he had access to the company’s books and records but that he had not produced them as part of his evidence in chief and that his evidence was instead based on his recall.
Mr Siddiqui’s affidavit evidence was that he had known both Mr Ahmed and Mr Khan for several years and that, following COVID-19 Mr Ahmed met with him on several occasions and said that he was seeking permanent residency in Australia for which he required work experience in his field of study. Mr Siddiqui’s evidence was that Mr Ahmed asked him whether he knew anyone who could provide him with practical experience while he continued to support himself by Uber driving. Mr Siddiqui stated that he then spoke to Mr Khan on Mr Ahmed’s behalf and that Mr Khan stated that his business was in its infancy and not yet in a financial position to employ staff. Mr Siddiqui stated that he relayed this information to Mr Ahmed who responded that he was willing to attend Jazaa’s office on an ad hoc basis to gain experience on a voluntary basis.
Mr Siddiqui further stated that, after a period of time, Mr Khan offered employment to Mr Ahmed which Mr Ahmed accepted. Mr Siddiqui recounted Mr Khan contacting him on several occasions thereafter to ascertain Mr Ahmed’s whereabouts. Mr Siddiqui also gave evidence of Mr Khan contacting him to attempt to arrange a discussion to resolve an issue that had arisen between Mr Khan and Mr Ahmed, that he did so, and that Mr Ahmed stated that he was unwilling to meet with Mr Khan to discuss the matter.
A number of the allegations are based on the spreadsheet made by Mr Ahmed for the purposes of these proceedings, setting out the hours that he worked between February 2023 and June 2024. Jazaa challenged the accuracy of that evidence. I accept that, in November 2024, Mr Ahmed would recall that he generally worked from Monday to Friday during that period. However, I cannot be satisfied, even on the balance of probabilities, that Mr Ahmed worked the hours recorded in his spreadsheet. In the period February to May 2023, Mr Ahmed was Uber driving to support himself, as he was not being paid. He accepted that his Uber driving impacted upon his attendance at the Jazaa office. I do not accept that, in November 2024, in the absence of any records, Mr Ahmed could recall the hours that he worked on a daily basis during that period. Similarly, I do not accept that his November 2024 recollection of the overtime that he worked, to the half hour, on a particular day from June 2023 to 30 June 2024 (other than when he worked on public holidays) would be sufficient to satisfy me to the requisite standard of the accuracy of that evidence.
However, I do accept that in November 2024, Mr Ahmed would recollect the extraordinary hours that he worked in the first week of July 2024. In that regard, I also note that Mr Khan did not challenge the hours which Mr Ahmed stated that he had worked in a contemporaneous email. Mr Khan’s response to that was that he was not focused on that part of the email, because he was pre-occupied with Mr Ahmed’s allegation that the work environment at Jazaa was unsafe (T64.16-24 & 43). However, the excessive hours which Mr Ahmed stated that he worked that week tend to support the accuracy of his claim. I consider it to be unlikely that if Mr Ahmed had sought to invent or exaggerate his evidence about the hours that he had worked that week, he would have stated that he had worked until 1am. If Mr Ahmed had deliberately sought to give inaccurate evidence about his working hours, I consider that he would have provided more reasonable hours in an attempt to ensure that his account was accepted.
“During lunch, Mr Khan told me that he was looking for an accountant to work fulltime on a long-term basis for his business Jazaa Accountants Pty Ltd (Jazaa). I told Mr Khan that I was looking for a full-time, long-term role. Mr Khan asked me when I could start and I told him I could start the following week. Mr Khan agreed and asked me to initially start working four hours a day because Jazaa was not very busy yet and he could not afford to pay me yet. Mr Khan told me that he would be able to pay me from June because it would be a busy period. I agreed to the arrangement because I wanted to get experience as an accountant in Australia and figured that as long as I started being paid in June it was a good opportunity.”
Having commenced work, Mr Ahmed’s account was that he worked roughly 20 hours a week for Jazaa, undertaking tasks that assisted Jazaa to earn money. In cross-examination, he accepted that the training period was unpaid and that his attendance in the office was dictated by his Uber driving. However, he denied using the Jazaa computer to attend to his personal affairs. The notable absence in that evidence is any mention of needing work or work experience to obtain a visa. In his reply evidence, Mr Ahmed stated that he needed full-time paid work in order to be eligible for a skills assessment that would lead to him getting a visa to stay in Australia.
In contrast, Mr Khan’s account was that Mr Siddiqui approached him about a friend who needed experience to be able to obtain a permanent residency visa. His account of the lunch was that Mr Ahmed told him that he needed work experience in an accounting firm to be able to apply for another visa to remain in Australia, and that he was happy to work as a volunteer, as he needed the experience to apply for a skills visa the following year. Mr Khan stated that there was an understanding that his attendance would fit around his shifts as an Uber driver. Mr Khan then stated:
“I told him that he could come into the office whenever he is free, but I will not be paying him as I had told him that I just started the business and was not looking for employees. He said that he understood this and was only after work experience.”
“I was busy and did not need any help, so I did not mind his coming and goings.”
“Q. Am I right to understand this, Mr Khan, you don’t remember the hours that he worked during the training period?
A. Look, I remember but I don’t remember the full, he worked four hours any day. He work, like, he came, like, he didn’t work, he observe the, the, the work I was doing and he observe--
Q. Mr Khan?
A. Yep.
Q. Apologies, could you answer my question. Do you remember the hours that he worked, yes or no?
A. Yes.
Q. You don’t remember him working four hours?
A. He, he never worked four hours.
Q. So you positively remember that he did not work four hours?
A. Yes.”
Again, the proposition that, in March 2026, Mr Khan could remember that Mr Ahmed never worked four hours on a single day in the period February to May 2023 is difficult to accept.
Mr Siddiqui made no mention of the lunch attended by the three of them, where the central conversation occurred. I therefore put his evidence to one side.
Mr Ahmed was clear and precise in the tasks that he claimed to have undertaken during the training period. He accepted the proposition that his hours were impacted by his Uber driving and conceded that this occurred “often”. Having regard to the difficulties with Mr Khan’s evidence, outlined above, I prefer the account of Mr Ahmed about the nature of his role during the training period. In particular, I accept that, during the training period, Mr Ahmed undertook meaningful work which earned money for Jazaa.
“Lastly, I apologise for the $2,000 which has not been returned to you, because I assumed that you paid me this money for training period, but I will return $2,000 as soon as possible.”
“In May 2023, Nafees came to me in the office and asked for a loan of $2,000. When I asked the reason why, he said that he wanted to pay back the loan he got from his friends and they were asking for it. I told him that I would lend him $2,000, but he would need to pay me back when I asked for it. Nafees agreed and I paid him $2,000.”
“Q. You agreed to pay the $2,000 back, did you not?
A. He said I don’t have to.
Q. Yes, I’m now asking you another question?
A. I, I agreed, yes, yeah, when he said I don’t have to, yeah.
Q. You agreed that you would pay it back?
A. Yeah, that’s what my intention was, yeah.
Q. You expressed that intention out aloud, you would pay it back?
A. Yes.”
Mr Ahmed submits that in the period from 8 February 2023 until the end of May 2023, he was an employee for the purposes of the FW Act and performed work for the benefit of Jazaa, pursuant to a contract between the parties. In support of that submission, Mr Ahmed points to his evidence that he worked 20 hours per week in the period from about 8 February 2023 to 31 May 2023, performing accounting tasks including working on income statements and financial statements and preparing tax and GST documents for clients of Jazaa. Mr Ahmed contends that to the extent that the parties agreed that he would be a “trainee for the purposes of obtaining work experience on an unpaid basis”, the agreement did not displace Jazaa’s obligation not to contravene a term of a National Minimum Wage Order or disentitle him from accruing annual leave.
Jazaa submits that the relevant question is not whether there was a contract in existence between the parties, but rather whether the arrangement was one of an employer and employee. Jazaa contends that Mr Ahmed did not commence work until 20 February 2023 and between then and up until 1 June 2023, he attended the offices of Jazaa “at his leisure” and observed Mr Khan. Jazaa contends that Mr Ahmed did not do any meaningful work that contributed to Jazaa’s business in that period and that Mr Ahmed used Jazaa’s computer for his personal affairs. Jazaa contends that he was therefore a “trainee for the purposes of obtaining work experience on an unpaid basis” during this period.
For the reasons set out at [67]-[74] above, I prefer Mr Ahmed’s account of the nature of his role at Jazaa during the training period, although, for the reasons already outlined at [65], I do not accept that he worked 20 hours per week during that period. It is common ground that there was no written contract between the parties covering any of the three claim periods. It is also common ground that there was an employment relationship from 1 June 2023 until 8 July 2024.
As the applicant, Mr Ahmed bears the burden of proving the formation of a contract of employment covering the First Claim Period. However, it would appear to be common ground that Mr Ahmed and Mr Khan engaged in conduct that would satisfy the elements of offer and acceptance when Mr Khan offered work to Mr Ahmed on an unpaid basis until 1 June 2023 and Mr Ahmed accepted that offer. Accordingly, the issues are whether there was both consideration and an intention to create legal relations.
As to the first issue, consideration must be real and valuable but need not be adequate: Woolworths v Kelly (1991) 22 NSWLR 189. [4] While consideration in the context of an employment contract is typically the payment of wages, courts have recognised that an employment contract may be substantiated by other forms of consideration: Re McGee; Re Inquiry into Elections for Offices within Transport Workers Union and the Victorian Branch thereof (1992) 41 IR 27. I accept Mr Ahmed’s submission that there was value to him in accepting an unpaid position until the end of May 2023, because it came with the prospect of paid work from June 2023 onwards, which was a requirement to progress his skills visa application.
The requirement of an “intention” to create legal relations does not reflect the subjective motives of the parties. Rather, it is concerned with what “would be objectively conveyed by what was said or done, having regard to the circumstances in which those stations and actions happened”: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95. Post contractual conduct is admissible for the purpose of establishing the existence of a contract*:* Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1 (CFMMEU v Personnel).
Mr Ahmed’s evidence was that he accepted the unpaid work in February 2023 on the basis that he would obtain paid work from June 2023. The existence of a contract is supported by Mr Khan’s concessions in cross-examination, including the fact that there was an agreement at the lunch in February 2023 for Mr Ahmed to commence paid work in or around June 2023:
“Q. So, through your discussions with Mr Ahmed on that day, Mr Ahmed communicated to you that he wanted to work for you because it would allow him to obtain a permanent residency visa?
A. Yes.
Q. And you and Mr Ahmed agreed that there would be an initial period where he was not being paid?
A. He - he was agreed, yeah.
…
Q. You agreed that in June 2023 he would start being paid when business became busier. Is that right?
A. Yes. Yes, I told him, I offered him part time.
Q. So there was agreement that he would start being paid in June 2023?
A. In June 2023, yes, as a part time.
Q. And that part of that agreement was that he would work unpaid before June 2023?
A. Before June. Yes. Yes. As a volunteer.”
However, that does not resolve the issue. As held by Gageler and Gleeson JJ in CFMMEU v Personnel “it is the character of the relationship that is established and maintained under a contract that gives character to the contract.” The Court also confirmed that “the ‘ordinary meanings’ of employee and employer in the FW Act are the common law meanings of those terms”. I am therefore required to determine whether that contract was one of employment or instead an arrangement for unpaid training or work experience during the First Claim Period.
In determining the nature of the contract between Mr Ahmed and Jazaa “it is the totality of the relationship between the parties that must be considered” CFMMEU v Personnel at [34], [56], [172], citing Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at [29]. However, the Court also observed that “the courts are not concerned with what has ‘actually occurred’ in a relationship, but rather with the obligations by which the parties [are] bound”. In that regard, their Honours noted at [58] that:
“The parties’ legitimate freedom to agree upon the rights and duties which constitute their relationship should not be misunderstood. It does not extend to attaching a ‘label’ to describe their relationship which is inconsistent with the rights and duties otherwise set forth.”
“A contract of service is that form of contract which embodies the social relationship of employer and employee. It cannot be identified by reference to the presence of any one or more static characteristics. The relationship is a dynamic one which needs to be accommodated to a variety of different and changing social and economic circumstances. It is, however, of the essence of a contract of service that it is a bilateral contract involving executory obligations on behalf of both employer and employee…
…A contract of service is of its nature a bilateral contract. It may be conceded that merely to say that the parties had agreed upon a trial basis, does not necessarily rule out its formation. The answer in that will depend upon the detail of the arrangement.” (Emphasis added.)
In that case, at [411] the plurality ultimately observed that the arrangement “lacked the element of mutuality of obligation that is essential to the formation of such a contract”.
In Pacesetter Homes Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1994) 57 IR 449, Rowland J held at [13], that the labelling of an employment arrangement as ‘work experience’ is not determinative:
“…In cases where the length of work experience is longer and where more work is required to be undertaken than when the period that the work experience person is able to observe a teacher is of a short duration, and where the tuition is in fact scant, then the real intention may be that a person is an employee and a contract of employment may be found, notwithstanding that the label ‘work experience’ is applied to the arrangement. This view does not, of course, impinge in any way upon the fact that legal consequences may arise from that arrangement…”
“(1) the individual acts, at least in part, to serve the interests of the employer;
(2) the employer consents to receive the individual’s services; and
(3) the employer controls the manner and means by which the individual renders services or the employer otherwise effectively prevents the individual from rendering those services as an independent businessperson.”
Jazaa’s contention that the arrangement was for a voluntary training period is based on Mr Khan’s account that Mr Ahmed did not perform valuable work for Jazaa in that period. Jazaa submits that it is not inconceivable for a person in Mr Ahmed’s position to be required to undertake such a period of work experience to become valuable to a future employer, on the understanding that paid work will follow and that Mr Ahmed was “not very valuable to an employer” such that he did not warrant paid employment during the First Claim Period. Jazaa also relies on the fact that Mr Ahmed worked “…a small number of hours”, that “he was carrying on another trade at the same time”, and that he was “fresh out of accounting school without experience” and therefore not “registered with the Tax Office for doing certain work”. Mr Khan stated that he could not assign Mr Ahmed any substantial work because he was just learning “how to work as an accountant.”
However, for the reasons set out at [67]-[74] above, I prefer Mr Ahmed’s account of the nature of his role during the First Claim Period. In that regard his evidence was that he:
“…(d) would work Monday to Friday…;
…
(f) completed work that assisted Jazaa to make money;
(g) was provided with and worked off a work-provided laptop;
(h) worked on income statement and financial statements for clients of Jazaa;
(i) used the accounting software Sage;
(j) prepared tax and GST documents for individual clients of Jazaa; and
(k) meaningfully contributed to and was relied on by Jazaa.”
“a. failing to give pay slips to Mr Ahmed during his employment, in breach of s 536(1) of the FW Act.
b. failing to maintain proper employee records for Mr Ahmed, in breach of s 535(1) of the FW Act.
c. failing to make available for inspection copies of Mr Ahmed’s employee records, in breach of rr 3.42(1), (3) and (4) of the FW Regs.
d. paying Mr Ahmed less than national minimum wage, in breach of ss 293 and 323(1) of the FW Act.
e. requiring Mr Ahmed to work unreasonable additional hours, in breach of ss 44 and 62 of the FW Act.
f. failing to pay Mr Ahmed for his unused annual leave on the termination of his employment and make superannuation contributions to a superannuation fund on his behalf, in breach of ss 44, 90(2), 116B and 323(1) of the FW Act.
g. requiring Mr Ahmed to pay to $15,000 in visa sponsorship fees to or for them, in breach of s 325(1) of the FW Act.”
It is common ground between the parties that Mr Ahmed was an employee of Jazaa from at least June 2023 until his resignation on 8 July 2024. It is also common ground that the pay slips produced by Mr Ahmed were provided to his solicitor by the respondents’ solicitor (T56.30).
Jazaa’s position is that Mr Khan told Mr Ahmed that he was required to produce his own pay slips and that he had access to the Xero system for that purpose. Mr Khan’s evidence was that Mr Ahmed populated the system with his payroll data and generated his pay slips from the system on time every week (T56.1-2, T60.14). Jazaa also relies on the pay slips provided to Mr Ahmed by the respondents’ solicitor. In the event that Jazaa’s conduct is found to be in breach of s 536(1) of the FW Act, Jazaa points to Mr Ahmed as having contributed to that breach as he was the author of the pay slips and responsible for generating them.
I accept Mr Ahmed’s evidence that he did not agree to generate his own pay slips. I find that Mr Ahmed was not provided with pay slips during his employment with Jazaa, and in fact did not receive any pay slips for the period of his employment until 11 July 2025. He would not have been so persistent in asking Mr Khan for those records if they were already in his possession.
Mr Ahmed sent an email to Mr Khan asking for his pay slips on 30 August 2024 (CB 102). Further email requests for pay slips were made on 8 September (CB 100) and 9 September 2024 (CB 96-97). Mr Khan conceded that he did not provide Mr Ahmed with the pay slips within two to four weeks of his 10 September 2024 email to Mr Ahmed (CB 96) after stating that he would do so (T54.34). Mr Ahmed’s evidence was that Mr Khan provided those pay slips to his solicitor on 11 July 2025 (CB 75). Mr Khan accepted that it was his solicitor who provided the pay slips to Mr Ahmed. Mr Khan’s evidence was that he downloaded the pay slips provided to his solicitor, which were generated by Jazaa’s pay software (T56.1,19). However, he denied producing them (T55.31, T62.28).
In cross-examination, Mr Khan conceded that the pay slips produced to Mr Ahmed in July 2025 were deficient in several respects. He explained that the salary shown on the pay slips for the period when Mr Ahmed was working full-time was incorrect because the system did an average calculation of the data entered into it (T57.28-31 & 34). He accepted that there were no sick or annual leave balances recorded on the pay slips that he produced (T59.37), but stated that the problem was how the documents were generated rather than whether or not the information was recorded on Jazaa’s accounting system (T59.29 & 34). Mr Khan also conceded that there were no details about Mr Ahmed’s superannuation fund because Mr Ahmed had not provided details of his superannuation fund (T57.44, T58.16-17). Mr Khan stated that the words “fund details pending” in the superannuation field were automatically generated by the system because no fund details had been entered (T58.2, 9-10 & 36). Further, Mr Khan accepted that the pay slips record that Mr Ahmed worked 32 hours per weeks instead of the 38 hours per week that he actually worked, during the period that he acknowledged that Mr Ahmed was working full time (T57.12, T60.35-43).
Mr Ahmed submits that Jazaa breached s 535(1) of the FW Act by failing to maintain proper “employee records” in the manner prescribed by the following FW Regulations:
the employer’s name and ABN (rr 3.32(a), 3.32(f));
the employee’s name (r 3.32(b));
whether the employee’s employment is full-time, part–time and whether they are permanent, temporary or a casual employee (r 3.32(c)-(d));
the date on which the employee’s employment began (r 3.32(e));
any leave that the employee takes and the balance (if any) of the employee’s leave entitlements (from time to time) (r 3.36(1)(a)-(b));
regarding superannuation contributions: the amount of the contributions made; the period over which the contributions were made; the date on which each contribution was made; the name of any fund to which a contribution was made; and the basis on which the employer became liable to make the contribution (r 3.37(1)(a)-(e)); and
if an employee’s employment is terminated, whether the employment was terminated by consent or notice, summarily or in some other manner; and the person who acted to terminate the employment (r 3.40).
In two of the three emails that Mr Ahmed sent to Mr Khan asking for a copy of his pay slips, referred to above at [101], he also requested other employment records. The only record produced by Jazaa other than the deficient pay slips was an Excel spreadsheet setting out the hours that Mr Ahmed had been said to work and the wage payments made to him. That Excel spreadsheet was sent by the respondents’ solicitor to Ms Feldman-Gubbay on 14 March 2025, in response to letters of demand seeking recovery of the alleged underpayments. It did not contain details of Jazaa’s name and ABN (r 3.32(a), r 3.32(f)), Mr Ahmed’s name (r 3.32(b)), whether Mr Ahmed’s employment was permanent, temporary or casual (r 3.32(d)), or the date that his employment commenced (r 3.32 (e)). It did not set out Mr Ahmed’s leave balance from time to time (r 3.36(1)(b)), records relating to the superannuation contributions made on behalf of Mr Ahmed (r 3.37(1)(a)(e)) or details concerning Mr Ahmed’s termination of employment (r 3.40). It did indicate when Mr Ahmed was asserted to have become full-time but did not expressly state that he was a part-time employee until that point (r 3.32(c)), However, it did stipulate dates on which sick leave and annual leave were taken (r 3.36(1)(a)).
In an email sent to Ms Feldman-Gubbay on 19 March 2025, the respondents’ lawyers confirmed to Ms Feldman-Gubbay that this spreadsheet was the only document to which they referred in the letter as Mr Ahmed’s “employment records”. I therefore find on the balance of probabilities that Jazaa had no other employee records for Mr Ahmed, as required by s535(1) of the FW Act. I find that Jazaa failed to maintain proper employee records for Mr Ahmed, satisfying a breach of s 535(1) of the FW Act, because those records failed to comply with any of r 3.32(a)-(f), r 3.36(1)(b), r 3.37(1)(a)-(e) and r 3.40.
Regulation 3.42 of the FW Regulations has been set out at [10] above. I have set out the evidence concerning Mr Ahmed’s request for his employee records and Mr Khan’s response to that request above at [101].
As the pay slips were generated by Jazaa’s software system, I find on the balance of probabilities that they were kept in Jazaa’s office where Mr Ahmed had worked. I am fortified in that view by Mr Khan’s evidence that it was Mr Ahmed, and not him, who put the data into the system. Even if that were not the case, Mr Khan’s account tends to demonstrate that the software system containing the payroll data was accessible in the Jazaa office.
The evidence referred to above demonstrates that Jazaa did not make a copy Mr Ahmed’s employee records available to him within 3 days of receiving a request for those records and nor did Jazaa post them to Mr Ahmed within 14 days of receiving that request. Therefore, I find that Jazaa has breached rr 3.42(1) and (3) of the FW Regulations by failing to make available for inspection Mr Ahmed’s employee records, despite Mr Ahmed requesting his records on 30 August 2024, 8 September 2024 and 9 September 2024. Regulation 3.42(4) has no application given my finding that Mr Ahmed’s records were kept at Jazaa’s premises.
A number of the allegations are based on the spreadsheet made by Mr Ahmed for the purposes of these proceedings, setting out the hours that he worked between February 2023 and June 2024. My findings in relation to the reliability of that evidence are set out above at [65]-[66].
However, Mr Ahmed submits that pursuant to s 557C of the FW Act, Jazaa bears the legal burden of disproving the alleged contraventions of ss 44, 293 and 323(1) of the FW Act. Section 557C(1)-(2) provides as follows:
(1) If:
(a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and
(b) the employer was required:
(i) by subsection 535(1) or (2) to make and keep a record; or
(ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or
(iii) by subsection 536(1) or (2) to give a pay slip;
in relation to the matter; and
(c) the employer failed to comply with the requirement;
the employer has the burden of disproving the allegation.
(2) Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).
A list of civil remedy provisions at subs (3) includes s 44 (contraventions of the National Employment Standards), s 293 (contraventions of national minimum wage orders), s 323(1) (methods and frequency of payment) and s 325(1) (unreasonable requirements to spend or pay amounts).
Jazaa contends that s 557C has no application to these proceedings because Jazaa did ultimately provide pay slips to Mr Ahmed, albeit very late in the day and containing inaccuracies. Jazaa submits that, as the records produced in July 2025 are not fraudulent (so that, in truth, no records were produced) they are sufficient to prevent s 557C from being engaged in these proceedings and that the section should not be extended beyond its ordinary meaning.
In Fair Work Ombudsman v Make Dough Enterprises (In Liq*)* [2024] FCA 1432 at [36] McElwaine J made the following observations about the operation of s 557C:
“Section 557C operates on two levels. It recognises that an employee… is likely to face practical difficulties in establishing facts relevant to the asserted contraventions where the employer is in default of its record keeping obligations. The reverse onus operates to prevent that injustice. Similarly, the provision is an incentive to ensure employer compliance.”
“The need to ensure compliance, particularly with respect to vulnerable workers, such as those on work visas, those who come to Australia without strong language skills, and those with little education is crucial to a just society, and the avoidance of exploitation.”
“…[Section] 557C required an employer who did not keep appropriate records to disprove the allegation. If the evidence adduced by the employer did not rise to the level necessary, on the balance of probabilities, to affirmatively prove that Mr Ghimire and Ms Sharma [the applicants in this case] did not work the hours that they claimed, then the effect of s 557C was that those claims were to be upheld. In that context, it was not enough that there may be reasons to question the credibility of the account given by Mr Ghimire or Ms Sharma. Even if their evidence was not accepted, Karriview [the employer in that case] would not have thereby disproved the allegation made by them as to the hours that they worked.”
This reasoning was affirmed at [148] by Perram J in Fair Work Ombudsman v Woolworths Group Ltd [2025] FCA 1092. A similar approach was taken in Siddiqui v Thomas and M Irfan Pty Ltd t/as Mowbray Physiotherapy Services (No 2) [2025] FCA 146 by McElwaine J at [82].
As noted at [103] above, I have not made a finding that the pay slips provided to Mr Ahmed were produced for the purpose of these proceedings. However, a plain reading of s 557C is to the effect that it applies where an employer fails to comply with any of s 535(1) or (2), or s 536(1) or (2) of the FW Act or r 3.42 of the FW Regulations. For the reasons set out above, I have found that Jazaa failed to comply with each of s 535(1), s 536(1) and r 3.42. Accordingly, the onus is on Jazaa to disprove Mr Ahmed’s allegations that Jazaa contravened ss 44, 293 and 323(1) of the FW Act. Jazaa’s failure to comply with any of s 535(1) or (2), or s 536(1) or (2) of the FW Act and r 3.42 of the FW Regulations is not relevant to Mr Ahmed’s allegation under s 325(1).
As I have found that s 557C applies to this allegation, Jazaa must disprove that Mr Ahmed worked 3,081.5 hours, over the course of his employment with Jazaa (First, Second and Third Claim periods) and was paid a total sum of $45,640, [5] which is less than national minimum wage.
In determining whether Jazaa has discharged its onus, I have considered the pay slips provided by Jazaa to Mr Ahmed on 25 July 2025. My findings about those pay slips are set out above at [100]-[103]. Mr Khan has accepted that some of them contain inaccuracies. They are therefore not sufficient to disprove, on the balance of probabilities, Mr Ahmed’s allegation about the hours that he worked and the quantum of the wages paid to him. Further, as Jazaa’s records are inaccurate, I do not consider Mr Khan’s oral evidence about the hours worked by Mr Ahmed to be sufficiently reliable to discharge Jazaa’s onus.
It is not in dispute that if Mr Ahmed worked 3,081.5 hours over the course of his employment with Jazaa and was paid a total sum of $45,640, that he was paid less than the minimum wage, in contravention of ss 293 and 323(1) of the FW Act. The second letter from the respondents’ solicitor to Mr Ahmed’s solicitor, dated 14 March 2025, contained admissions that Mr Ahmed was not paid a full-time wage until 8 March 2024 and that, even on that basis, he was still owed wages for 89 hours’ work. Accordingly, I find that Jazaa contravened ss 293 and 323(1) of the FW Act.
“a. on average, 53 hours per week during the Second Claim Period; and
b. 67.5 hours during the Third Claim Period.”
The National Employment Standards prescribe a 38-hour work week for full-time employees, unless the additional hours are reasonable. In determining that question, I am required to take into account the matters listed at s 62(3) of the FW Act, set out at [9] above. Mr Ahmed’s submission is that such hours were prima facie unreasonable and that the onus is on Mr Khan to demonstrate that they were not. As Mr Khan did not accept that Mr Ahmed worked the hours alleged, he has not addressed the question of whether such hours were unreasonable.
I take into account that long hours were required to enable Jazaa, a new start-up business, to become established. I also take into consideration the fact that the hours worked by Mr Ahmed during the Third Claim Period were to meet the demands of a small business with few employees during its peak period. In that regard, I note Mr Khan’s evidence that the busy period for Jazaa normally started “…after 10 or 15 July” (T52.1) and his concession that preparation for that peak period would be occurring from 1 July (T52.12).
Further, in relation the Second Claim Period, I note that in June 2023, Mr Ahmed worked no more than eight hours in a day. Mr Ahmed also worked primarily eight hour days during periods of January 2024 and from 12 March 2024 to 13 April 2024.
However, also relevant is the fact that Mr Ahmed was an inexperienced recent accounting graduate. Mr Ahmed’s evidence was that he worked the hours required of him without objecting because he was afraid of losing his job. Given the importance of the job to Mr Ahmed obtaining a visa to remain in Australia, I accept that evidence. While the Third Claim Period was only one week, I accept that those hours presented a risk to Mr Ahmed’s health and safety.
Having considered all of the evidence, I am satisfied, on the balance of probabilities, that a breach of ss 44 and 62 of the FW Act has been established in respect of both the Second Claim Period and the Third Claim Period. In relation to the Second Claim Period, I make that finding because of the extended period over which Mr Ahmed was required to work the alleged hours, at no point in that period did Mr Ahmed work a week within the maximum weekly hours permitted by s 62 of the FW Act and Mr Ahmed felt that he had no alternative than to work the hours that he did if he wished to keep his job.
It was accepted by both parties that, on 11 March 2026, only the following monies had been paid to Mr Ahmed by way of annual leave and superannuation:
On 11 July 2025, Jazaa made an annual leave payment of $2,173.54 to Mr Ahmed.
On 1 September 2025, $4,265.75 was paid into Mr Ahmed’s superannuation account.
At hearing, Mr Khan conceded that the annual leave payment that he made on 11 July 2025, more than a year after Mr Ahmed’s employment ended, was less than it should have been, and that there were still annual leave monies owed to Mr Ahmed (T61.41). His explanation for the underpayment was that Mr Ahmed’s annual leave balance had been calculated on the basis that he was working 32 hours a week during the Second Claim Period, rather than 38 hours (T61.33-38) and that he had not corrected the payment because it was consistent with the data lodged with the ATO (T62.16).
In relation to his failure to make superannuation contributions into Mr Ahmed’s superannuation fund while he was employed, Jazaa relies on the failure of Mr Ahmed to provide his fund details. While that provides an explanation for Jazaa’s conduct, it does not change the fact that a breach of s 116B of the FW Act occurred. The admitted errors as to the hours worked and salary earned by Mr Ahmed recorded in the pay slips on which Jazaa relies mean that the amount paid for superannuation is also less than what is owed to Mr Ahmed.
Jazaa has therefore failed to comply with these provisions, even in respect of the hours that it contends that Mr Ahmed worked. It therefore cannot have complied with its obligations in respect of the hours which Mr Ahmed alleges that he worked. Having regard to the evidence referred to above, I find that Jazaa has breached ss 44, 90(2), 116B and 323(1) of the FW Act by failing to pay Mr Ahmed for his unused annual leave on the termination of his employment and make contributions to a superannuation fund on his behalf. The concessions made by Mr Khan were that Mr Ahmed remained underpaid by Jazaa as at 11 March 2026 in respect of both annual leave and superannuation. I will address the issue of compensation below.
Section 325(1) is set out above at [9]. The word “require” in s 325(1) connotes a “demand, order or instruction”: Australian Education Union v Victoria (Department of Education and Early Childhood Development) (2015) 255 IR 341; [2015] FCA 1196 at [344] per Bromberg J.
Mr Ahmed’s account of the request for a $15,000 payment to cover the cost of his sponsorship is set out at [27] above. Mr Ahmed connected that request with a lunch that he attended with Mr Khan and Mr Syed in late June 2024. As set out at [51], Mr Khan denies the allegation. Mr Khan also relies on the evidence of Mr Syed that any discussion that he had had with Mr Ahmed was limited to providing general migration information and did not involve any payment in exchange for sponsorship. Mr Ahmed did not challenge the evidence from either witness on that issue.
It is unlikely that the story underpinning this allegation is a total fabrication. There is no allegation that Mr Syed was present when the request for payment was made (although the implication is that he was involved in the scheme, because the instalments were to be payable to him). Further, Mr Khan admitted that Mr Ahmed had said that he was looking to obtain a permanent residency visa after completing his work experience (T44.14-19, 36 & 41). I have some doubt about the veracity of Mr Khan’s denial of this allegation. However, Mr Khan was not challenged about that evidence in cross-examination. Accordingly, I cannot find, even on the balance of probabilities, that Mr Khan requested Mr Ahmed to make a $15,000 payment to cover costs associated with his sponsorship.
If I am wrong about that, I also find that the account given by Mr Ahmed of his conversation with Mr Khan could not reasonably be characterized as a “demand, order or instruction”. There is no evidence that Mr Ahmed was required by Jazaa to apply for sponsorship or that the making of such an application was a precondition imposed by Jazaa for Mr Ahmed’s continued employment in the business. The payment, if it was requested, was merely outlining to Mr Ahmed the terms on which Jazaa would be prepared to make such an application on his behalf. As a result, I dismiss the allegation of a breach by Jazaa of s 325(1) of the FW Act.
“(1) To be knowingly concerned in a statutory contravention, the person must have been an intentional participant with knowledge, at the time of contravention, of the essential elements constituting it: Yorke v Lucas. Constructive or imputed knowledge is not enough; actual knowledge is required. But actual knowledge may be inferred from ‘exposure to the obvious’: Giorgianni v The Queen; Young Investments Group Pty Ltd v Mann. It is not necessary that the person also knows that the elements amount to a contravention: Yorke v Lucas at 667. Put another way, a person may be an accessory without knowing that the conduct in which he or she is involved is unlawful: Australian Competition and Consumer Commissioner v Giraffe World Australia Pty Ltd (No 2).
(2) The person must have engaged in conduct which implicates or involves her or him in the contravention, so that there is a ‘practical connection’ between the person and the contravention: Qantas Airways Ltd v Transports Workers’ Union of Australia. See also Construction, Forestry, Mining and Energy Union v Clarke.” (Citations omitted.)
In Bakers Delight Holdings Ltd v Fair Work Ombudsman [2025] FCAFC 144, Mortimer CJ, Hatcher and Dowling JJ accepted at [11] by way of obiter (the principle having been accepted by the appellant in that case) that where the liability of an employer is established by the operation of s 557C, that provision can also be used to establish accessorial liability claims in respect of that employer. Therefore, to the extent that s 557C applies to the allegations against Jazaa, I apply it to determine the accessorial liability of Mr Khan in respect of those same allegations.
Mr Ahmed contends that Mr Khan was ‘involved in’ each of Jazaa’s breaches in that he was knowingly directly concerned in or a party to Jazaa’s contraventions of the FW Act and FW Regulations: s 550(2)(c). In that regard, Mr Ahmed relies on the evidence establishing that for the duration of his employment with Jazaa, Mr Khan owned and operated Jazaa, had direct control over his work and the payment of his wages, and directed and was present with Mr Ahmed during his working hours.
In cross-examination, Mr Khan accepted that he was the owner of Jazaa (T49.31) and that he therefore had control over employee working hours (T49.34), the transfer of wages (T49.40) and control over the provision of pay slips to employees (T49.48). Mr Khan also accepted that he had access to Jazaa’s books and records (T50.1).
Mr Khan was the arms and legs of Jazaa. It was his responsibility to keep employee records and make them available on request. He was the person who paid Mr Ahmed’s wages and was responsible for providing Mr Ahmed with pay slips which accurately recorded those payments. He supervised Mr Ahmed and was therefore responsible to manage the hours that Mr Ahmed worked. It was his responsibility to ensure that Mr Ahmed received an appropriate termination payment. I am therefore satisfied, on the balance of probabilities, that Mr Khan was knowingly concerned in or party to the contraventions of the FW Act and the FW Regulations found to have been perpetrated by Jazaa and so was ‘involved in’ those contraventions for the purposes of s 550(1) (Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87 at [26]). Accordingly, I find that Mr Khan has contravened ss 44 (in respect of breaches of ss 62, 90(2)), 116B, 293, 323(1), 535(1) and 536(1) of the FW Act and rr 3.42(1), and (3) of the FW Regulations.
I have found that Mr Ahmed’s wages, annual leave and superannuation were underpaid by Jazaa and Mr Khan. Accordingly, I find that Jazaa and Mr Khan are jointly liable to pay compensation to Mr Ahmed in respect of those underpayments. In his Amended Application filed on 9 October 2025, Mr Ahmed claims the following underpayments:
the sum of $23,106.56 to the Applicant for unpaid wages;
the sum of $4,621.90 for unpaid accrued annual leave; and
the sum of $4,004.29 for unpaid superannuation.
In support of his underpayment claim, Mr Ahmed submits, and I find, that he worked 3,081.5 hours for Jazaa and that he accrued 192 hours and 29 minutes of annual leave during his employment. In determining Mr Ahmed’s annual leave balance, I take into consideration the fact that Ms Feldman-Gubbay’s calculations are consistent with those of the FWO’s leave calculator. Mr Ahmed further submits that Jazaa should have paid $8,270.04 in superannuation contributions on his behalf over the course of his employment. In closing submissions, Mr Ahmed claimed that he was in fact underpaid:
$23,106.57 (being the difference between his total wages of $70,746.57 and the $47,640 already paid to him).
$2,465.35 in annual leave (being the difference between $4,638.89 [6] and $2,173.54 already paid to him).
$4,004.29 in superannuation contributions (being the difference between $8,270.04 and $4,265.75 already paid to him).
The amount which Mr Ahmed has accepted that he has received by way of wages includes the $2,000 payment in May 2023 which I have found was a loan, rather than payment for work performed during the First Claim Period. Furthermore, Mr Ahmed has accepted that his claim for unpaid annual leave entitlements needs to be adjusted to reflect the payment which he received on 11 July 2025. The starting point for that calculation, set out at above at [143], is higher than the payment sought in the Amended Application. The latter would appear to be based on the incorrect figures recorded in the Excel spreadsheet annexed to Ms Feldman-Gubbay’s affidavit. Finally, I have no evidence about whether Mr Khan has made further payments to Mr Ahmed since 11 March 2026, in an attempt to address the accepted shortfall.
If the parties are unable to reach agreement about the quantum of the compensation to be paid to Mr Ahmed in light of my findings, I will hear from the parties about the quantum of compensation to be paid to Mr Ahmed.
I find that Mr Ahmed has established breaches of ss 44, (in respect of breaches of ss 62 and 90(2)), 116B, 293, 323(1), 535(1) and 536(1) of the FW Act and rr 3.42(1), and (3) of the FW Regulations by Jazaa and that, as someone involved in those contraventions Mr Khan also contravened those provisions. I will hear the parties in relation to the appropriate pecuniary penalties for each respondent in connection with the breach of those civil remedy provisions.
Jazaa and Mr Khan are jointly liable to pay compensation in relation to the underpayment of wages, annual leave and superannuation to Mr Ahmed. As I intend to hear the parties further about the quantum of compensation (if the parties cannot arrive at a consent position in light of my findings) and penalties, an order at this stage for interest up to judgment, pursuant to s 100 of the CPA and s 547 of the FW Act would be premature.
The orders sought by Mr Ahmed do not include declarations of breach by Jazaa. It would be appropriate to make such declarations before ordering that Jazaa pay pecuniary penalties in respect of the breaches of the civil remedy provisions that I have found. It would also be appropriate to make a declaration that, pursuant to s 550(1) of the FW Act, Mr Khan breached those same provisions, because he was involved in Jazaa’s contraventions.
The orders in this matter are as follows:
I direct the parties to file consent orders giving effect to my decision, or if agreement cannot be reached, to file competing orders, within 7 days.
I will hear the parties as to the pecuniary penalties to be imposed on the First Respondent and the Second Respondent.
**********
In submissions, the applicant alleged only a breach of s 535(1).
In submissions, the applicant alleged only a breach of s 536(1).
I have included 31 May 2023 in the First Claim Period.
At 192-193 per Kirby P and 221-222 per Mahoney JA.
Mr Ahmed’s evidence that he was paid $47,640 in wages includes the $2,000 which I have found to be a loan.
Ms Feldman-Gubbay’s evidence is that the annual leave hours recorded in the Excel spreadsheet which is Annexure D to her affidavit are incorrect and should be 192 hours and 29 minutes rather than 191 hours and 46 minutes.
Ahmed
Jazaa Accountants Pty Ltd
[2025] FCAFC 144
[1938] HCA 34
[2025] FCA 146
(2015) 255 IR 341
(1938) 60 CLR 336
(2022) 275 CLR 165
(1980) 54 ALJR 388
(2002) 209 CLR 95
(2019) 290 IR 331
(1994) 57 IR 449
(1992) 41 IR 27
(1986) 160 CLR 16
(1991) 22 NSWLR 189
Mr Ahmed reiterated that Mr Khan had given him $2,000 in May 2023, which he had intended to repay until Mr Khan told him that he did not need to repay that money. Mr Ahmed stated that the money was payment for his training period, rather than a gift.
Mr Ahmed’s evidence was that, when he was told to produce pay slips for himself, he told Mr Khan that he wanted Mr Khan to produce his pay slips, because Jazaa had a better record of his hours than he had. However, he maintained that the hours in his spreadsheet were his best recollection in November 2024 of the hours that he had worked for Jazaa in the period February 2023 to June 2024, rather than guesswork. Mr Ahmed accepted that he did not have any contemporaneous record of the hours that he had worked. He stated that during the training period, he worked 20 to 25 hours per week at Jazaa and that he always knew that his formal full-time employment would commence on 1 June 2023. He rejected a proposition that he worked part-time from June 2023 until March 2024 at a rate of $33.65 per hour.
Mr Ahmed also relies on an affidavit affirmed by his solicitor, Ms Seri Brana Feldman-Gubbay, on 11 December 2025. That affidavit annexes correspondence from Ms Feldman-Gubbay to Mr Khan, alleging underpayments to a total of $37,998.50 and her subsequent correspondence with the respondents’ solicitor. Also annexed is an Excel spreadsheet setting out the calculations undertaken by Ms Feldman-Gubbay to arrive at the alleged underpayment figure. Those calculations were based on the following hours and pay rates (and included a further $531.52 in superannuation contributions based on Mr Ahmed’s accrued but unused annual leave period so that the total superannuation contribution to which he claimed to be entitled was $8,270.04):
Mr Khan was referred to his email correspondence with Mr Ahmed on 8 July 2023 and stated that the business peak time generally commenced around about 12 or 15 July. He did not accept that there had been a miscommunication about the $2,000. When asked whether he had asked for it to be repaid previously, he gave evidence about “one time” when he did so. When it was put to Mr Khan that he did not respond to Mr Ahmed’s claims of having worked until almost midnight during the previous week, he said there was a reason for that. In re-examination, Mr Khan stated that it was because he had been focused on Mr Ahmed’s false allegations about the unsafe work environment against Jazaa when he had worked very hard to establish that business.
Mr Khan was then directed to his correspondence with Mr Ahmed in September 2024 regarding Mr Ahmed’s pay slips, in which he said that it would take him two to four weeks to provide them. He accepted that he did not provide Mr Ahmed with the pay slips in that timeframe. He stated that while he downloaded the pay slips, it was Mr Ahmed who had entered the data into the system which was used to produce the pay slips and that they were generated on time every week by Mr Ahmed. He stated that he did not make any changes to them. Mr Khan then agreed that the pay slips were inaccurate in some respects, including the hours worked on the full-time pay slips, and the annual salary shown (which he stated was calculated by the system averaging the payments entered into it) but that they were nevertheless used to calculate the leave balances owed to Mr Ahmed, because they were the figures that had been reported to the ATO. Mr Khan stated that the pay slips did not record leave balances because Mr Ahmed forgot to include the leave balance option when he created the pay slips.
Mr Khan accepted that he had not made superannuation payments to Mr Ahmed while he was employed. He stated that this was because Mr Ahmed had not provided him with his superannuation fund account details. He accepted that he made an annual leave payment only on 11 July 2025, but that there were still monies owing to Mr Ahmed.
Given Mr Khan’s evidence that it had been Mr Ahmed’s responsibility to generate his own pay slips, which I have found did not occur, it is possible that the pay slips provided to Mr Ahmed were created after the commencement of these proceedings and for that purpose. That is consistent both with their numerous inaccuracies and the delay in Jazaa providing them to Mr Ahmed. However, the applicant has expressly submitted that it does not seek any findings of dishonesty in relation to the respondent’s witnesses (T71.1-6), so I will proceed on the basis that the pay slips were produced based on data that had been entered into the Jazaa Xero account during Mr Ahmed’s period of employment.
I find on the balance of probabilities that Jazaa failed to comply with its obligations under s 536(1) of the FW Act to provide pay slips to Mr Ahmed within one day of him receiving payment for the work performed for Jazaa for the period from 1 June 2023 to 8 July 2024.