Basi v Namitha Nakul Pty Ltd

Admitted contraventions of the FW Act 8 The respondents have admitted the following contraventions of the FW Act, with respect to the Restaurant Industry Award 2010 (Award) and the National Employment Standards (NES), which they submit were admitted at the earliest possible opportunity: (a) Section 45 (being a breach of clause 5 of the Award): failure to display the Award and NES at the Restaurants; (b) Sections 44 and 90(2) (being contraventions of the NES): failure to pay the applicants for their untaken annual leave at the end of their employment; (c) Section 45 (being a breach of cl 35.2(b) of the Award): failure to pay the applicants additional leave loading of 17.5%; (d) Section 45 (being a breach of cl 30.2(a) of the Award): failure to pay Mr Haider superannuation contributions; (e) Section 323 (in relation to method and frequency of payment), limited to the payment of entitlements regarding annual leave and leave loading; and (f) Sections 44 and 117 (being a breach of the NES): failure to give Mr Haider notice or payment in lieu thereof on his termination.

Contested claims advanced by the applicants 9 The specific claims that the applicants make against the respondents that are contested can be summarised as follows. 10 First, Mr Basi and Mr Haider allege that over the course of their employment with Namitha Nakul they were required to work for at least 12 hours per day, six days per week without being afforded breaks, contrary to the provisions of the Award. 11 Second, Mr Basi and Mr Haider allege that they were not paid the amounts due and owing to them, contrary to the Award. 12 Third, Mr Basi alleges that during much of his employment, Mr Usha demanded that he make cash payments of approximately $511 per fortnight, and that if he did not do so the business would close and he would not have a job. 13 Fourth, Mr Basi alleges that between May and August 2017, Mr Usha demanded he pay an amount in excess of $6000 in respect of Namitha Nakul's PAYG income tax liability for him, and that if he failed do so it would affect Mr Basi's migration status. 14 Fifth, Mr Basi also alleges that in December 2017 and January 2018 Mr Usha demanded that he pay $1710 in respect of Namitha Nakul's PAYG income tax liability for him, and that if he failed to do so Mr Usha would shut the restaurant and Mr Basi would be "in trouble". 15 Sixth, Mr Haider alleges that Mr Usha demanded he pay $1400 in respect of Namitha Nakul's sponsorship of Mr Haider's Temporary Work (Skilled) (subclass 457) visa, which Mr Haider paid one week later. 16 Seventh, Mr Haider alleges that he is entitled to make a quantum meruit claim for the work he performed at the behest of Namitha Nakul and Mr Usha to prepare the Nowra Restaurant for trading between July and October 2016.

Principal conclusions 17 For the reasons that follow, I have concluded that: (a) Mr Basi was employed full time by Namitha Nakul between 19 July 2016 and 27 August 2018 at the Restaurants at a classification of Cook Grade 4 at the Wollongong Restaurant and subsequently as a Cook Grade 5 at the Nowra Restaurant; (b) Mr Haider was employed for an average of 30 hours a week by Namitha Nakul in the period between 10 July 2016 and 30 October 2016, and then in the period between 31 October 2016 and 14 August 2018 he was employed full time by Namitha Nakul at a classification somewhere between Cook Grade 3 and Cook Grade 4, but ultimately closer to Cook Grade 4, at the Restaurants; (c) the applicants did not work 12 hour days for six days a week for Namitha Nakul; (d) it was not possible to conclude on the balance of probabilities that the applicants had worked overtime hours or had worked for more than five hours on any given day without a break, notwithstanding, to the extent relevant, the operation of s 557C of the FW Act; (e) the respondents failed to arrange the hours of work of the applicants in a manner consistent with the Award and failed to pay weekend holiday rates in contravention of clause 34.1 of the Award, and therefore s 45 of the FW Act, this failure amounted to a serious contravention for the purposes of s 557A of the FW Act, and Mr Usha was knowingly involved in that serious contravention; (f) Namitha Nakul failed to pay the amounts due and payable to the applicants under the Award in contravention of clause 20 of the Award, and therefore s 45 of the FW Act, this failure amounted to a serious contravention for the purposes of s 557A of the FW Act, and Mr Usha was knowingly involved in that serious contravention; (g) Mr Usha did not make any loans to Mr Basi or Mr Haider; (h) Namitha Nakul through Mr Usha demanded that Mr Basi make payments back to Namitha Nakul from his wages of approximately $511 each fortnight by way of cashback payments in contravention of ss 323 and 325 of the FW Act, this demand amounted to a serious contravention by Namitha Nakul for the purposes of s 557A of the FW Act, and Mr Usha was knowingly involved in that serious contravention; (i) Mr Usha made demands to Mr Basi for payment of money to cover Namitha Nakul's PAYG liability for Mr Basi in contravention of ss 325, 343 and 345 of the FW Act, and that, by reason of s 793(1) of the FW Act, Namitha Nakul also made those contraventions; (j) Mr Usha made demands to Mr Haider for payment of money to cover Namitha Nakul's visa sponsorship costs in contravention of s 325 of the FW Act, and that, by reason of s 793(1) of the FW Act, Namitha Nakul also made those contraventions; and (k) Mr Haider is entitled to a quantum meruit payment from Namitha Nakul for the work that he undertook between 10 July 2016 and 30 October 2016 to prepare the Nowra Restaurant for trading.

Overview 18 Before commenting on each of the witnesses who gave evidence in the proceedings, it is necessary for me to make some general observations about the weight that I have been able to give to that evidence. 19 First, the hearing was conducted exclusively over Microsoft Teams. English was not the first language of any of the witnesses and the assistance of an interpreter was required for some witnesses. In considering the weight I have been able to give to the evidence of each witness, I have taken these matters into account. I have also had regard to the difficulties faced by the cross examiners seeking to test the evidence of witnesses in the proceedings because of language difficulties experienced by witnesses having to comprehend and respond to questions put to them, questions that were often framed in language familiar to cross examiners but not to lay witnesses, particularly the use of propositions expressed in the negative. 20 Second, I am satisfied that the evidence advanced by the applicants and the respondents concerning the employment agreements that the respondents provided to the Department of Immigration and Border Protection (Department) was inherently implausible and could not be accepted. It exposed both Mr Usha and Mr Basi, and to a lesser extent, Mr Haider to contraventions of the Migration Act 1958 (Cth) (Migration Act) and related legislation and regulations, and as a result I provided each of them with certificates pursuant to s 128 of the Evidence Act 1995 (Cth) with respect to that evidence. 21 Third, a necessary consequence of the second observation made above, was that self-serving and conflicting testimonial recollections of the witnesses on several critical matters had to be assessed against the apparent logic of events and the facts capable of being objectively established, in particular, entries recorded in bank statements, rather than contemporaneous employment records that might otherwise have been assumed to be an accurate account of the matters that they purport to record. 22 Fourth, none of the witnesses who gave evidence in the proceedings were independent, in that each was a party or a close family relation of Mr Usha or, in the case of Ms Kumar, had been living with Mr Usha's family for many years. I am satisfied that this lack of independence led each witness to overstate aspects of their evidence by generalising from at times imperfect recollections of specific events to provide generalised evidence consistent with the respective cases sought to be advanced by the applicants and the respondents. This phenomenon was particularly prevalent in the evidence directed at the hours worked by the applicants, the specific cooking responsibilities and skills of the applicants and the extent of the cooking undertaken at the Nowra Restaurant. Again, I have been guided by the apparent logic of events and the facts capable of being objectively established in making findings of fact, rather than this generalised evidence of practices and experiences given by the witnesses in the course of the hearing.

Mr Midhun Basi 23 Mr Basi is the applicant in proceedings NSD523/2019 (Basi proceedings). 24 He is an Indian citizen. He was born on 21 October 1987. His first language is Malayalam, an Indian regional language spoken in the state of Kerala, India. 25 Mr Basi has a Bachelor's Degree in Hotel Management from Calicut University in Kerala and a Master's in Business Management from Victoria College, Nottingham in the United Kingdom. Both courses were taught in English. 26 In March 2015 he passed the International English Language Testing System General Training course. 27 Prior to his arrival in Australia in 2016, Mr Basi was employed as: (a) a cook for Emirates in-flight catering service in Dubai from August 2009 to January 2011, in which he cooked meals in a range of Indian cuisines; (b) a third chef in an Indian restaurant serving Keralan cuisine in Nottingham in 2012 while undertaking his Master's Degree, in which he prepared and plated meals and carried out stock takes; (c) a cook preparing and storing Indian food for the Casino Flight catering company in Kerala from July to December 2013; and (d) a head chef in an Indian restaurant in Port Moresby, Papua New Guinea, from May 2014 to January 2015, in which his duties included preparing and plating meals, managing and ordering stock and supervising another cook. 28 On 7 July 2015 Mr Basi was issued with a Certificate III in Commercial Cookery by VETASSESS. VETASSESS is an organisation in Australia that conducts skills assessments for migration applications. 29 On 13 April 2016, Mr Basi was granted a Temporary Work (Skilled) (subclass 457) visa by the Department. Mr Basi's sponsor was Chellappas Pty Ltd (Chellappas), a company that operated a restaurant and food court in Gosnells, near Perth in Western Australia, and a restaurant in Albany. Shortly after Mr Basi arrived in Australia and commenced working for Chellappas, he was advised by Chellappas that given the financial difficulties that Chellappas was encountering with their Albany restaurant, he should look for a new sponsor for his subclass 457 visa. 30 Mr Basi searched on Gumtree and located a classified advertisement for a position as an Indian cook in Wollongong. 31 In or about June 2016, Mr Basi had a three day trial at the Wollongong Restaurant with Mr Usha. 32 In or about July 2016, following the three day trial, Mr Usha made a written offer of full-time employment to Mr Basi dated 19 July 2016 (Basi Employment Offer). 33 The Basi Employment Offer provided that: Namitha Nakul Pty Ltd Trading as Adithya Kerala Restaurant agrees to employ you in the full time position of Cook with our business, subject to the successful outcome of your 457 Nomination transfer to our Company. Your base salary, based on a 40 hour week will be $55,000. Your hourly rate is $26.44 per hour for a 40 hour week. Your employment terms and conditions are covered by the Hospitality Industry (General) Award 2010. Your rate of pay is Market Rate. The position is permanent, full time and for 4 years. 34 On 15 November 2016, the Department approved Mr Basi's nomination by Namitha Nakul as a cook for the purpose of his subclass 457 visa. 35 Mr Basi prepared two statements filed on 20 April 2020 and 5 March 2021 that were tendered in the proceedings. In his statements he describes his employment by Namitha Nakul at the Wollongong Restaurant and subsequently the Nowra Restaurant and the various payments that he received and made to Namitha Nakul and Mr Usha. He was extensively cross examined. 36 Mr Basi presented as a cautious witness who listened carefully to the questions that he was asked and he appeared to answer most questions directly and honestly. At various times during his cross-examination Mr Basi showed some hesitation and delay in answering questions, particularly when being pressed as to the timing of his work in the Wollongong Restaurant with Ms Kumar. I am satisfied that the delays with respect to this issue could principally be attributed to genuine confusion arising in the course of a focused and directed cross-examination seeking to lock Mr Basi into supporting the proposition that Mr Basi did not undertake any work at the Wollongong Restaurant prior to the Department's approval of Namitha Nakul's sponsorship of Mr Basi on 15 November 2016. 37 Having said that, there were significant aspects of his evidence that could not be accepted; in particular, his claims that he and Mr Haider worked 12 hour days, six days a week, other than on specific and rare occasions, and the extent to which he sought to downplay to what degree food served at the Nowra Restaurant had been initially prepared at the Wollongong Restaurant by Ms Kumar. 38 Nor can I accept Mr Basi's evidence that he thought that in the period between the employment offer that was made to him on or about 19 July 2016 and the approval of the transfer of his 457 sponsorship to Namitha Nakul on 16 November 2017 that he was being employed pursuant to the terms of the employment agreement. The employment agreement was expressly stated to be subject to the approval of the Department and it provided for a salary to be paid that was equivalent to an after tax $855 per week, not the $600 per week that Mr Basi was receiving in cash during the period between July and November 2016. 39 Ultimately, I have approached Mr Basi's evidence with some caution and I have generally only accepted it on matters in dispute to the extent that I am satisfied by reference to all the objective circumstances that it is plausible or it is otherwise corroborated by evidence of witnesses other than Mr Haider.

Mr Syed Haider 40 Mr Haider is the applicant in the proceedings NSD730/2019 (Haider proceedings). 41 Mr Haider is a Pakistani citizen born on 8 December 1987. He was granted a Higher Education Sector (subclass 573) student visa on 13 January 2015 by the Department, and arrived in Australia on 2 February 2015. 42 Mr Haider gave evidence that he undertook an 18-week course "English for Tertiary Studies" at the University of Wollongong between February and June 2015, and that he enrolled in the Master of Professional Accounting course, commencing on or about 17 August 2015. He gave evidence that he deferred the course in November 2015. 43 With regard to his cooking experience, Mr Haider gave evidence that: (a) between 2009 and 2014 he worked as a tandoori chef at different restaurants in Karachi, Pakistan, in which he was responsible for tandoori cookery (the cooking of meat and bread in a clay oven heated by a charcoal fire) and occasionally supervising other cooks; and (b) in 2015 he worked as a cook at a restaurant, "Garam Masala" in Shellharbour, New South Wales, in which he undertook tandoori cooking, curry preparation and service. 44 On 12 December 2016, Mr Haider obtained a Certificate III trade qualification in Commercial Cookery from FMedge, a private training college in Sydney, in which his previous cooking experience was recognised as "prior learning". 45 By letter dated 30 May 2017, Mr Haider received a formal offer of employment from Namitha Nakul (Haider Employment Offer). 46 The Haider Employment Offer was in substantially identical terms to the Basi Employment Offer and provided that: Namitha Nakul Pty Ltd trading as Adithya Kerala Restaurant agrees to employ you in the full time position of Cook with our business, subject to the successful outcome of your 457 [sic] This Position is for a Cook at Adithya Kerala Nowra Restaurant located at Shop 1, Aroney Way, 78 Junction Street, Nowra 2541. Your base salary, based on a 40 hour week will be $55,000. Your hourly rate is $26.44 per hour for a 40 hour week. Your employment terms and conditions are covered by the Hospitality Industry (General) Award 2010. Your rate of pay is Market Rate. The position is permanent, full time and for 4 years. 47 On 5 June 2017, Mr Haider accepted the Haider Employment Offer. 48 On 28 August 2017, Mr Haider applied for a Temporary Work (skilled) (subclass 457) visa, and was granted a bridging visa. His subclass 573 visa expired on 28 September 2017. 49 On 19 October 2017, Mr Haider's nomination for Namitha Nakul to be his sponsor for the subclass 457 visa was approved, but his application for the subclass 457 visa was refused by the Department on 16 August 2018. Mr Haider appealed that decision on 5 September 2018. 50 From July to October 2016, Mr Haider undertook work at the Nowra Premises to prepare the Nowra Restaurant for the commencement of trading at the end of October 2016. Mr Haider then worked for various periods at both Restaurants until he resigned from his employment with Namitha Nakul during a meeting he had with Mr Usha on a day in the period between 14 August 2018 and 4 September 2018. 51 Mr Haider generally presented as a confident and truthful witness who answered questions that he was asked succinctly and directly. Having said that, as with Mr Basi, there were significant aspects of his evidence that I ultimately could not accept, in particular his claims that he and Mr Basi worked 12 hour days, six days a week, other than on specific and rare occasions, and the extent to which he, in common with Mr Basi, sought to downplay the degree to which a substantial proportion of the food served at the Nowra Restaurant had been initially prepared at the Wollongong Restaurant by Ms Kumar.

Namitha Nakul Pty Ltd and Mr Vaisakh Mohanan Usha 52 Namitha Nakul is the first respondent in each proceeding. 53 Mr Usha is the director, secretary and sole shareholder of Namitha Nakul, and is responsible for the direction, management and control of the company. 54 Namitha Nakul operated the Wollongong Restaurant at all relevant times and the Nowra Restaurant from at least April 2017. The Wollongong Restaurant and the Nowra Restaurant were 35-seat and 40-seat restaurants, respectively, which served Keralan Indian cuisine for both takeaway and dine-in lunch and dinner. 55 Mr Usha affirmed two affidavits in the proceedings on 7 September 2020 and 28 September 2021, respectively. 56 Mr Usha was not an impressive witness. He frequently provided long winded, self-serving and argumentative responses in the course of his cross-examination. His responses typically had the effect of obfuscating, rather than illuminating, critical issues to be determined in the proceedings. 57 Much of his evidence, in particular his evidence about the alleged loans that he made to Mr Basi, his denials that Mr Basi was employed by Namitha Nakul prior to November 2016 and that Mr Haider worked for the respondents prior to April 2017, was implausible and reflected very poorly on his credit. When challenged in cross-examination about the alleged loan that he arranged for his brother to advance to Mr Basi, Mr Usha gave the following evidence: Mr Usha, what I want to suggest is that anyone who has been approached for a loan on one day and the very same person comes back to them four days later for another loan, their response won't be to put their brother on the hook for the money. They will be in a state of disbelief. You understand what I'm saying, don't you?---Yes, but no - because I can tell one more thing, you know. I am the only one, you know, went to her sister home and, you know, met his - his marriage arrangement and everything. But no other, you know, the business owners do that. But in - I - I go from, you know, India. Our culture is like that, help each other, like, you know, that's the reason, you know, I went to his home and, you know, arrange his marriage and everything. I - I treat like as a, you know, family member. That's why I did, you know, a lot of, you know, things like this. HIS HONOUR: Did you say you treat him like a family member?---Yes. And he had only worked for you for eight weeks?---Means, you know, he said a lot of his, you know, the - the poor things in the India, you know, they don't have money and those of - you know, the - because of the mankind, one side, you know, I can say. So every day he is - sometimes, you know, he is crying for, you know, they tell that stories and he is crying. So that's, you know, feel - feel, you know, something mankind. That's the reason why I help him. Because, you know, I already - what I am thinking is a four years visa, he already here, so he working for me, because there is plenty of time to repayment. You know, that's all, you know, in my mind. 58 As concerning were Mr Usha's explanations of why loans that he alleged he made personally to Mr Haider in January 2017 were recorded as salary payments on the notations that he made when he transferred the funds from Namitha Nakul's bank account to Mr Haider, including the following exchanges: MS DOUST: Sorry, Mr Usha. Now, do you see the entries on that page for 31 January and 7 February for - in Mr Haider's bank account?---Yes. You've described them as "Adithya salary"?---Yes. "Vaisakh"?---Yes, yes. That's your words, isn't it?---That's to my word but, - - - .....?--- - - - you know, that - sorry. That's the entry you've made when you transferred the money across to Mr Haider from the Namitha Nakul account?---Yes. And - - -?---Sometimes - sorry. HIS HONOUR: I don't think he had finished the answer. Had you finished your answer, Mr Usha?---No. The sometimes, you know, the - I transferred, normally, when he ask money. I transferred like that and, plus, you know, he tried to start work with me, you know, once I opened the Nowra. So what was the moneys, you know, after that I transfers I mentioned that's salary. Because, you know, the future, you know, when I go to the tax agents I had to show them so, you know, the why these moneys goes. And at that times I can't remember so this is already mentioned there so they can easily identify, "Okay, I gave this one in the salary. I can deduct in the future. So, you know, when I start in Nowra, so I can deduct that money there. So I gave advance and I mentioned there, always I am mentioning. So that's the reasons I think I mentioned that. and, HIS HONOUR: So what were you paying him salary for? That is, what were you paying Mr Haider salary for in January of 2017?---That I mentioned in the - you know, the transfer. Because, you know, the tax agent can see that, you know, the why I used that money. Yes, because you were paying him for work that he was doing for you?---Yes, I give money, but I said to the tax agent, "That's money for, you know, the salary, we can deduct it, but it's the loan." So it's paid from, you know, the company, so that's the reason. We have to show the reason to the tax agent, you know, why we spent this money, why we spent - that's the questions he will ask. Sorry, this was your tax agent?---My tax agent. When I give, you know, the GST - company GST, three months, then we give the bank statement and he will ask, whenever he doubt, you know, the payment, doubt, "Where you spent this moneys," and, "Where you, you know, transfer this money," like that. You know, he will ask. 59 Moreover, Mr Usha's manifest failure to comply with or otherwise appreciate his obligations under the Award and the FW Act, and his apparent willingness to provide instructions that were incorrect to migration agents in relation to visa sponsorship applications and tax agents in relation to the preparation of payslips, also reflected very poorly on his credit. 60 Equally concerning was the unchallenged evidence given by Mr Haider that in response to Mr Basi's complaints, Mr Usha had requested Mr Haider to sign erroneous backdated worksheets and to sign a statement that contained incorrect representations. Mr Haider stated that on or about 10 August 2018, in the course of Mr Usha seeking to persuade him to sign the erroneous worksheets, Mr Usha told him at the Wollongong Restaurant: You are the only witness in Midhun's complaint you are not a family member so your statement matters a lot. My lawyer is asking you to write a statement. If you give me the statement, I can save you and you can save me. Because if immigration cancels my approval to be your sponsor you will be in trouble. 61 The statement that Mr Usha requested that Mr Haider sign contained representations that were internally inconsistent and, for the reasons I explain subsequently in these reasons, were erroneous, including that Mr Haider never worked on Tuesdays (contrary to other representations in the draft statement and the evidence of Mr Usha in the proceedings), the Nowra Restaurant was only ever open from 11.30 am until 5.00 pm from Wednesday to Sunday (rather than Tuesday to Sunday as accepted by all witnesses in the proceedings), and no work was done at the Nowra Restaurant between 3.00 pm and 5.00 pm (thus ignoring take away orders). The statement was both an attempt to discredit Mr Basi's claims of the hours that he alleged he worked at the Nowra Restaurant and a relatively flagrant attempt to portray Mr Haider as only working 20 hours a week for four hours a day from Wednesday to Sunday, in order to avoid Mr Haider providing a statement that might provide evidence of potential contraventions of the FW Act and the Migration Act. 62 In short, I was not prepared to accept any evidence given by Mr Usha on any matter in dispute unless it was against interest or corroborated by the evidence of other witnesses or contemporaneous documents that had not been prepared by him or at his direction.

Ms Priyadevi Sunil Kumar 63 Before proceedings were discontinued against her, Ms Kumar was the third respondent in the Basi proceedings. 64 Ms Kumar affirmed an affidavit in the proceedings on 29 August 2020 in which she described her involvement in the Restaurants and her dealings with the applicants. She was cross examined. 65 Ms Kumar worked in the Wollongong Restaurant as the Head Chef from March 2017 and supervised the Wollongong Restaurant in Mr Usha's absence. 66 Ms Kumar has lived with Mr Usha and his family in the same household since 2007. She jointly purchased property with Mr Usha, was party to and guaranteed the lease on the Wollongong Restaurant, provided $10,000 or $20,000 when the lease was entered into, and worked in the business. 67 In assessing the weight I was able to give to Ms Kumar's evidence, I have taken into account the extent of her connections with Mr Usha. Nevertheless, I was satisfied that Ms Kumar was generally doing her best to tell the truth and not to act as an advocate for Mr Usha. Having said that, I am satisfied that her evidence concerning the limited hours worked by the applicants for Namitha Nakul, the absence of any cooking being undertaken at the Nowra Restaurant and the cooking skills of Mr Basi and Mr Haider was inconsistent with the apparent logic of events, in particular, the circumstances in which the applicants first came to be employed by Namitha Nakul, the extent of their cooking experience prior to working for Namitha Nakul and their day to day involvement in the kitchen at the Nowra Restaurant. I am satisfied that her evidence on these matters was overstated and given her location in the Wollongong Restaurant, she was not best placed to comment upon these matters.

Mr Sujith Ayyappadas Sulatha 68 Before proceedings were discontinued against him, Mr Sulatha was the fourth respondent in the Basi proceedings and the third respondent in the Haider proceedings. 69 Mr Sulatha affirmed an affidavit in the proceedings on 24 September 2020 in which he gave evidence of his involvement in the Nowra Restaurant and his dealings with the applicants. He was cross examined. 70 Mr Sulatha is Mr Usha's brother-in-law. He was sponsored by Mr Usha to come to Australia on a subclass 457 visa as a skilled worker, despite having no prior experience as a restaurant manager. Mr Sulatha was dependent on Mr Usha to come to Australia. He accepted in cross-examination that he felt a sense of obligation to him due to his family relationship. 71 Mr Sulatha worked in a management role in the Nowra Restaurant, and was responsible for the management, direction and control of the Nowra Restaurant in the absence of Mr Usha and Ms Kumar. Mr Sulatha was employed by Namitha Nakul between September 2017 and December 2019. 72 Again, notwithstanding the extent of his relationship with Mr Usha, Mr Sulatha generally presented as an honest and truthful witness but his evidence as to the limited hours worked by the applicants for Namitha Nakul at the Nowra Restaurant, the absence of any cooking being undertaken at the Nowra Restaurant and the cooking skills of Mr Basi and Mr Haider was inconsistent with the apparent logic of events as explained above. I am satisfied that his evidence on these matters was overstated and I have discounted it in making findings on these matters.

Ms Sandhya Sujith Sulatha 73 Ms Sandhya Sujith Sulatha (Ms Sujith) affirmed an affidavit in these proceedings on 25 September 2020. She gave evidence about the extent to which food served at the Nowra Restaurant was pre-cooked at the Wollongong Restaurant and the responsibilities of the applicants while they were working at the Nowra Restaurant. 74 Ms Sujith is the wife of Mr Sulatha, and the sister of Mr Usha. Her first language is Malayalam. 75 On or about 9 September 2017 she immigrated to Australia with her husband and child. 76 Between September 2017 and January 2020 Ms Sujith and her family lived with Mr Usha and Ms Kumar and their respective families. She commenced working for Namitha Nakul in September 2017, initially for a short period in the Wollongong Restaurant and subsequently in the Nowra Restaurant. 77 Ms Sujith moved to Victoria in January 2020 and her husband, Mr Sulatha, joined her several weeks later in February 2020. 78 Ms Sujith generally presented as an honest and truthful witness. In common with Ms Kumar and Mr Sulatha, however, her evidence as to the limited amount of cooking being undertaken at the Nowra Restaurant and the cooking skills of Mr Basi and Mr Haider was again inconsistent with the apparent logic of events as explained above. I am satisfied that her evidence on these matters was overstated and I have discounted it in making findings on these matters.

Wollongong Restaurant 79 Namitha Nakul entered into a lease for Shop 4, the Wollongong Restaurant, on 22 January 2016. The lease commenced on 15 January 2016. 80 Between 15 January 2016 and 10 March 2016 the Wollongong Restaurant underwent minor renovations before opening officially as an a la carte restaurant serving South Indian cuisine on 11 March 2016. Namitha Nakul entered into a lease for Shop 2, the Wollongong Restaurant, on 15 October 2017. 81 The opening hours for the Wollongong Restaurant varied from time to time and were: (a) between March and April 2016: seven days a week from 10.00 am to 10.00 pm; (b) from April 2016 to July 2019: Tuesday through Sunday from 12.00 pm to 10.00 pm; (c) from July 2019 to January 2020: Tuesday through Sunday from 12.00 pm to 2.30 pm and from 5.00 pm to 9.30 pm; and (d) from January 2020 to March 2020: Tuesday through Sunday from 5.00 pm to 9.30 pm. 82 Between March 2016 and March 2017, Mr Usha was the head chef of the Wollongong Restaurant and had various cooking, supervising, cleaning and management duties. 83 Between March 2017 and March 2020, Ms Kumar was the head chef of the Wollongong Restaurant. 84 The head chef was usually assisted in the kitchen by other employees. The Wollongong Restaurant had two different shifts, a lunch shift from 12.00 pm to 2.30 pm and a dinner shift from 5.30 pm (or 6.00 pm) to 9.30 pm. During the lunch shift the Wollongong Restaurant also offered a lunch special with curries already prepared in warmers in the kitchen. 85 In August 2018, Namitha Nakul terminated its lease for Shop 2 of the Wollongong Restaurant after failing to comply with a final notice of demand from Colliers International dated 29 June 2018 for unpaid rent. 86 In March 2020, Namitha Nakul terminated its lease for Shop 4 and the Wollongong Restaurant was permanently closed.

Nowra Restaurant 87 On or about 20 September 2016, Namitha Nakul entered into a lease for the Nowra Restaurant at 1/78 Junction Street, Nowra. The lease commenced retrospectively on 24 August 2016. The Nowra Restaurant initially traded under the name "1980's A Nostalgic Restaurant" and in the period between 31 October 2016 and March 2017 it was operated on a day to day basis by Mr Ashik Thiruvathakath Korundavalapil (Ashik) and his wife Ms Sabitha Ayangil (Sabitha). 88 Between January and March 2017, the Nowra Restaurant was closed three times following health inspections by the Shoalhaven City Council. In mid-March 2017, Mr Usha arranged for renovation works to be undertaken and for an inspection by Shoalhaven City Council to be conducted, before Namitha Nakul commenced operating the Nowra Restaurant in April 2017 under the name "Adithya Kerala Nowra". 89 Between April 2017 and April 2019, the Nowra Restaurant was open six days a week (Tuesday to Sunday) generally from 11.30 am to 2.30 pm for lunch and from 5.00 pm to 9.00 pm for dinner. Take away orders were received and prepared between lunch and dinner opening times. During lunch the Nowra Restaurant also offered a lunch special with curries already prepared in warmers in the kitchen. 90 Not all of the food served at the Nowra Restaurant was prepared on site. I am satisfied that a significant proportion of the food served at the Nowra Restaurant was pre-cooked food that was delivered to the Nowra Restaurant by Mr Usha and Ms Kumar each Monday after being prepared at the Wollongong Restaurant. This pre-cooked food was then reheated and finished with any garnishes before being served to customers at the Nowra Restaurant. 91 The majority of transactions at the Nowra Restaurant were processed by EFTPOS but some patrons paid in cash. The EFTPOS records for the Nowra Restaurant record that 88% of its business occurred between 11.30 am and 3.30 pm and 5.00 pm and 9.30 pm. 92 On 23 May 2018, Ms Elizabeth Csanitz, an Environmental Health Officer from Shoalhaven City Council, conducted a routine primary inspection of the Nowra Restaurant. The inspection was conducted on site between 1.13 pm and 2.30 pm. Mr Basi and Mr Usha were present during the inspection, but not Mr Haider. 93 Mr Csantiz stated in her report of the inspection that "Chef" (presumably a reference to Mr Basi) "did not appear to have the required knowledge to handle and prepare food safely"; and the "[c]hicken tikka was found being re-heated in the microwave … Chicken is delivered frozen, thawed, cooked, cooled and reheated and was to then be transported & reheated before service again … Delivering/catering of cooked foods was discussed at length with the Owner" (presumably a reference to Mr Usha).

Financial position of Namitha Nakul 94 The 2017/2018 financial statements of Namitha Nakul (Financial Statements) record that the company had a trading income of $193,164 for the year ended 30 June 2017 (FY 2017) and $213,632 for the year ended 30 June 2018 (FY 2018) with a gross profit from trading after deducting costs of sales of $125,985 for FY 2017 and $141,483 for FY 2018. 95 After deducting expenses, including salaries, the Financial Statements record that Namitha Nakul incurred a loss from ordinary activities of ($50,086) for FY 2017 and ($97,055) for FY 2018.

Modern Award Compliance - s 45 96 Pursuant to Part 2-1 of the FW Act, the terms and conditions of employment of "national system employees" are prescribed by the following: (a) the NES, set out at Part 2-2 of the FW Act; (b) modern awards; and (c) enterprise agreements. 97 The NES is comprised of a number of fundamental minimum standards as to maximum weekly hours of work, parental leave, personal leave, annual leave and other entitlements. Section 44 of the FW Act prohibits contraventions of the NES. A contravention of the NES attracts a civil penalty. 98 Modern awards may not derogate from entitlements established by the NES: ss 55 and 56 of the FW Act. 99 Section 45 of the FW Act obliges employers not to contravene terms of any modern award applicable to them in respect of their industry: 45 Contravening a modern award A person must not contravene a term of a modern award. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1). 100 An employer may only contravene an Award that applies to them: s 46(1) of the FW Act. An Award applies to an employer if it is expressed to cover the employer (s 47(1)(a)), and where there is no other provision that has the effect that the Award does not apply (s 47(1)(c)).

The Restaurant Industry Award 2010 101 The relevant provisions of the Award were not in dispute. 102 Clause 4.1 of the Award states that: 4.1 This industry award covers employers throughout Australia in the restaurant industry and their employees in the classifications listed in Schedule B - Classification Structure and Definitions to the exclusion of any other modern award. 103 The Award's application to particular employees is therefore conditioned upon: (a) the employer being in the "restaurant industry" as defined; and (b) the employee being employed in one of the classifications (or work roles) listed in Schedule B to the Award. 104 "Restaurant industry" is defined in cl 3 as: restaurant industry means restaurants, reception centres, night clubs, cafés and roadhouses, and includes any tea room, café, and catering by a restaurant business but does not include a restaurant operated in or in connection with premises owned or operated by employers covered by any of the following awards: (a) Hospitality Industry (General) Award 2010; (b) Registered and Licensed Clubs Award 2010; or (c) Fast Food Industry Award 2010 105 The classifications listed in the Award include kitchen attendants and cooks, who are in the B3 Kitchen stream in Schedule B of the Award. 106 There are eight classifications in the Kitchen stream, described as follows: B.3.1 Kitchen attendant grade 1 means an employee engaged in any of the following: (a) general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant; (b) assisting employees who are cooking; (c) assembly and preparation of ingredients for cooking; and (d) general pantry duties. B3.2 Kitchen attendant grade 2 means an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area, or supervision of kitchen attendants. B.3.3 Kitchen attendant grade 3 means an employee who has the appropriate level of training including a supervisory course, and has the responsibility for the supervision, training and co-ordination of kitchen attendants of a lower grade. B.3.4 Cook grade 1 means an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking or butchering. B.3.5 Cook grade 2 means an employee who has the appropriate level of training and who performs cooking duties such as baking, pastry cooking or butchering. B.3.6 Cook grade 3 (tradesperson) means a commi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training, and who is engaged in cooking, baking, pastry cooking or butchering duties. B.3.7 Cook grade 4 (tradesperson) means a demi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties and/or supervises and trains other cooks and kitchen employees. B.3.8 Cook grade 5 (tradesperson) means a chef de partie or equivalent who has completed an apprenticeship or has passed the appropriate trade test or who has the appropriate level of training in cooking, butchering or pastry cooking and who performs any of the following: (a) general and specialised duties including supervision or training of other kitchen staff; (b) ordering and stock control; and (c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment. 107 The respective classification grades in the various streams have a corresponding minimum wage rate level in clause 20 of the Award, with the lowest minimum wage level and rates applicable to the entry level role and the highest minimum wage rates and levels applicable to the supervisory and skilled trades roles. The rates in clause 20 are broken down into minimum weekly and hourly rates. 108 Clause 20 of the Award provides that an adult employee within a specified level will be paid not less than the rate per week assigned to the classification, as defined in Schedule B, for the area in which such employee is working: Classification Minimum weekly wage Minimum hourly wage $ $ Kitchen attendant grade 1 692.10 18.21 Kitchen attendant grade 2 718.60 18.91 Kitchen attendant grade 3 743.30 19.56 Cook grade 1 718.60 18.91 Cook grade 2 743.30 19.56 Cook grade 3 (tradesperson) 783.30 20.61 Cook grade 4 (tradesperson) 832.30 21.90 Cook grade 5 (tradesperson) 854.60 22.49

109 The Award regulates the hours of work of employees, and the arrangement of the ordinary hours of work (regardless of classification grade). It relevantly provides: 31. Hours of work 31.1 The hours of work of a full-time employee are an average of 38 per week over a period of no more than four weeks. 31.2 The arrangement of ordinary hours must meet the following conditions: (a) a minimum of six hours and a maximum of 11 and a half hours may be worked on any one day. The daily minimum and maximum hours are exclusive of meal break intervals; (b) an employee cannot be rostered to work for more than 10 hours per day on more than three consecutive days without a break of at least 48 hours; (c) no more than eight days of more than 10 hours may be worked in a four week period; (d) an employee must be given a minimum break of 10 hours between the finish of ordinary hours of work on one day and the commencement of ordinary hours of work on the next day. In the case of a changeover of rosters the minimum break must be eight hours; (e) an employee must be given a minimum of eight full days off per four week period; … 110 The term "ordinary hours" is not defined in the Award, but is defined in the FW Act at s 20 in relation to award/agreement free employees. The concept of ordinary hours was discussed by Allsop CJ in Bluescope Steel (AIS) Pty Ltd and Another v Australian Workers' Union (2019) 270 FCR 359; [2019] FCAFC 84 at [38] (Bluescope Steel) as follows: … the word "ordinary" and the phrase "ordinary hours" have assumed different meanings depending on context and circumstance. There are circumstances and contexts where the word and phrase can be seen to refer to regular, normal, customary or usual hours; and there are circumstances or contexts where the word and phrase can be seen to refer to the hours of work referred to in applicable industrial instruments as standard hours to be paid at ordinary rates, as opposed to additional hours (even if required, usual, regular, normal or customary) and paid at a special or higher rate. As such, the word and phrase can be seen to reflect the long-recognised distinction between ordinary hours of work and overtime: cf Thompson v Roche Bros Pty Ltd [2004] WASCA 110 at [31]. 111 The Award (at the relevant times) established an entitlement to breaks in the terms set out below: 32. Breaks 32.1 If an employee, including a casual employee, is required to work for five or more hours in a day the employee must be given an unpaid meal break of no less than 30 minutes. The break must be given no earlier than one hour after starting work and no later than six hours after starting work. 32.2. If the unpaid meal break is rostered to be taken after five hours of starting work, the employee must be given an additional 20 minute paid meal break. The employer must allow the employee to take this additional meal break no earlier than two hours after starting work and no later than five hours after starting work. 32.3 If an employee is not given the unpaid meal break at the time the employer has told the employee it will be given, the employer must pay the employee 150% of the employee's ordinary base rate of pay from the time the meal break was to commence until either the meal break is given or the shift ends. 32.4 If clause 32.3 does not apply and an employee is not given a meal break in accordance with clause 32.1 the employer must pay the employee 150% of the employee's ordinary base rate of pay from the end of six hours until either the meal break is given or the shift ends. 32.5 If an employee is required to work more than five hours after the employee is given the unpaid meal break, the employee must be given an additional 20 minute paid break. 32.6 If a full-time or regular part-time employee is required to work more than 10 ordinary hours in the day, the employee will be given two additional 20 minute paid breaks. In rostering for these breaks, the employer must make all reasonable efforts to ensure an even mix of work time and breaks. 112 The Award provisions in respect of hours and breaks are coupled with provisions for the payment of penalty rates for additional hours of work or work at unsociable times as follows: 33. Overtime 33.1 Requirement to pay overtime rates (a) Full-time and part-time employees are paid at overtime rates for any work done outside of the spread of hours or rostered hours set out in clause 31 - Hours of work. … 33.2 Overtime rates The overtime rate payable to an employee depends on the time at which the overtime is worked. (a) Monday to Friday: 150% of the employee's ordinary base rate of pay for the first two hours of overtime then 200% of the employee's ordinary base rate of pay for the rest of the overtime. (b) Between midnight Friday and midnight Saturday: 175% of the employee's ordinary base rate of pay for the first two hours of overtime then 200% of the employee's ordinary base rate of pay for the rest of the overtime. (c) Between midnight Saturday and midnight Sunday: 200% of the employee's ordinary base rate of pay for all time worked. … 34.1 Penalty rates for work on weekends and public holidays … An employee working ordinary time hours on the following days will be paid the following percentage of the minimum wage in clause 20 - Minimum wages for the relevant classification: Type of employment Monday to Friday Saturday Sunday Public holidays % % % % Full-time and part-time 100 125 150 250 Casual Introductory Level, Level 1, Level 2 (inclusive of 25% casual loading) 125 150 150 250 Casual Level 3 to Level 6 (inclusive of 25% casual loading) 125 150 175 250

113 The Award also imposes an obligation on employers to make superannuation contributions in respect of employees: 30.2 Employer contributions (a) An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee. (b) The employer must make contributions for each employee for such month where the employee earns $350.00 or more in a calendar month. 114 In Bluescope Steel, the Full Court (Allsop CJ, Collier and Rangiah JJ) considered the question of whether provisions in an award and enterprise agreement concerning superannuation could create binding (and therefore contravenable) obligations. The Court considered arguments to the effect that the provisions merely reflected or acknowledged the obligations created in the Commonwealth superannuation legislation but did not independently impose any obligation upon the employer. The Court accepted that argument in respect of the Award provision, but concluded (Allsop CJ at [12], Collier J at [237], Rangiah J agreeing at [356]-[358]), that the enterprise agreement provision stating that the employer will make superannuation contributions created an independently enforceable obligation, which was capable of being contravened. 115 The Award contains an entitlement to receive leave loading of 17.5%: 35. Annual leave … a.2 Payment for annual leave (a) The NES prescribes the basis for payment for annual leave, including payment for untaken leave upon the termination of employment. (b) In addition to the payment provided for in the NES, an employer is required to pay an additional leave loading of 17.5% of that payment. 116 The clause expands on the annual leave entitlements established in the NES at Division 6 of Part 2-2 of the FW Act. Section 90 within that Division provides as follows: (1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period. (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. 117 The established approach to the construction and application of industrial instruments is contained in the following frequently cited statement by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

Obligation to pay amounts payable - s 323 118 Section 323 of the FW Act imposes obligations upon employers in respect of the payment of employee entitlements, such as wages. It provides: 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). Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period: (a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) leave payments. (2) The methods are as follows: (a) cash; (b) cheque, money order, postal order or similar order, payable to the employee; (c) the use of an electronic funds transfer system to credit an account held by the employee; (d) a method authorised under a modern award or an enterprise agreement. (3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method. Note: This subsection is a civil remedy provision (see Part 4-1). 119 The section imposes an obligation upon the employer to pay any amount or amounts payable to an employee. Each entitlement, whether as to wages, overtime, or leave loading, will give rise to a separate contravention of s 323 where it is not paid: Stratton Finance Pty Limited v Webb (2014) 314 ALR 166; [2014] FCAFC 110 at [47] (Allsop CJ, Siopsis and Flick JJ). 120 As the High Court (Crennan, Kiefel, Bell, Gageler and Keane JJ) observed in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at [45], the section (and others in the Division) address the same mischief as that addressed by the "Truck Acts" - the prospect that an employer may attempt to satisfy its obligations to pay wages by making payments in kind.

Unreasonable requirement by employer that employee pay or spend money - s 325 121 From the commencement of the employment of Mr Basi and Mr Haider by Namitha Nakul, until 15 September 2017, s 325 provided: 325 Unreasonable requirements to spend amount (1) An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances. Note: This subsection is a civil remedy provision (see Part 4-1). (2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) is or is not reasonable 122 In Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) (2015) 239 FCR 461; [2015] FCA 1196 (AEU), Bromberg J proceeded on the basis, without deciding, that the reference to "spend" in s 325 was capable of having application to monies deducted from wages or salary, noting that the section refers to amounts "payable" to an employee: see [340]-[341]. 123 Since 15 September 2017, s 325 has (relevantly) provided as follows: 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). … (2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) or (1A) is or is not reasonable. 124 Justice Bromberg considered the question of unreasonableness in AEU, which involved a deduction by the employer from teachers' wages for the provision of laptop computers. In that judgment, his Honour said, as to the question of what was "unreasonable": 355. The Explanatory Memorandum to the FW Bill provided the following examples of requirements which may be reasonable or unreasonable: 1292. For example, it is likely to be unreasonable for an employer to require an employee to donate a proportion of his or her pay to a charitable or religious organisation nominated by the employer. It may be reasonable, however, for an employer to require an employee who is a tradesperson to purchase tools required to perform his or her duties (unless the employer is otherwise required to provide those tools). 356. I agree with the approach taken by both the AEU and DEECD, that "unreasonable in the circumstances" was likely to have been intended to have the same meaning in s 325(1) as in s 326(1)(c)(ii). For the same reasons that I found the deductions were "unreasonable in the circumstances" when determining the s 326(1)(c)(ii) question, I would find that the requirements made by DEECD of the Group 11 teachers to spend parts of the amounts payable to them in relation to their performance of work were "unreasonable in the circumstances". In summary: (i) the spending required occurred in the absence of genuine choice; (ii) the rate of spending was set at an excessive rate of contribution; (iii) the deductions made were not principally for the benefit of the Group 11 teachers; and (iv) the value of the benefits actually received by them did not provide a countervailing justification. 125 The Explanatory Memorandum to the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (which introduced the amendment to s 325) provided examples of circumstances where it would be unreasonable for an employer to receive an employee's money, including the practice of paying employees the ostensibly lawful rate and then coercing payments back in cash in exchange for not terminating employment or in order to undercut minimum entitlements and compelling an employee to spend their money in a manner which involves undue influence, duress or coercion. 126 In Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 2) [2019] FCA 670 (Cheesecake Shop) at [72], Rares J found that a cash payback arrangement constituted a contravention of s 325.

Part 3-1 - General Protections 127 Division 3 of Part 3-1 of the FW Act contains provisions which protect the enjoyment or exercise by employees of workplace rights. Pursuant to s 341(1) of the FW Act, a person has a "workplace right" where the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; … 128 Section 12 of the FW Act defines: (a) "workplace law" to include the FW Act; and (b) "workplace instrument" to mean an instrument made under or recognised by a workplace law, which concerns the relationship between employers and employees. 129 Rights contained in the FW Act, or in modern awards made under the FW Act, are "workplace rights" within the meaning of that term in Division 3 of Part 3-1 of the FW Act.

Obligation to keep records - s 535 130 Section 535 imposes an obligation upon an employer to maintain employee records for seven years. It provides: 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. 131 Subsections (4) and (5) were inserted by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) and commenced on 15 September 2017. 132 Subdivision 1 of Part 3-6 of the Fair Work Regulations 2009 (FW Regulations) prescribes the content of the employee records s 535 requires an employer to make and keep. 133 An employee record must: (a) be legible, in English and readily accessible to an inspector (reg 3.31); (b) record the employer's name, the employee's name, employment status (full-time, part-time, permanent, temporary or casual) and the date of commencement (reg 3.32); (c) where a penalty rate or loading is payable in respect of overtime hours worked by an employee, specify the number of overtime hours worked each day and when the employee started and ceased those hours (reg 3.34); (d) record any leave taken by the employee and the balance remaining from time to time (reg 3.36); and (e) record any superannuation contributions required to be made for the benefit of the employee (reg 3.37). 134 Furthermore, reg 3.33 of the FW Regulations provides: 3.33 Records - pay (1) For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies: (a) the rate of remuneration paid to the employee; and (b) the gross and net amounts paid to the employee; and (c) any deductions made from the gross amount paid to the employee. (2) If the employee is a casual or irregular part‑time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee. (3) If the employee is entitled to be paid: (a) an incentive‑based payment; or (b) a bonus; or (c) a loading; or (d) a penalty rate; or (e) another monetary allowance or separately identifiable entitlement; the record must set out details of the payment, bonus, loading, rate, allowance or entitlement. 135 Sub-regulation (2) specifically states that records of hours worked must be kept "if the employee is a casual or irregular part-time employee". No record of hours is stated to be necessary to be kept for full-time employees.

Fair Work Act Remedies - Part 4-1 136 Where it is satisfied that a person has contravened a civil remedy provision, the Court may: (a) order that person to pay a pecuniary penalty (s 546); and (b) make any other order it considers appropriate (s 545(1)), including orders awarding compensation for loss that a person has suffered because of a contravention (s 545(2)(b)). 137 The maximum penalties applicable to contraventions of civil remedy provisions of the FW Act appear at column 4 of the table to s 539(2). For bodies corporate, the maximum penalties are five times the maximum specified in s 539(2): see s 546(2) of the FW Act. 138 A person who is involved in a contravention of a civil remedy provision of the FW Act is taken to have contravened that provision. Subsection 550(2) defines involvement in the following terms: (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. 139 Since 15 September 2017, the FW Act has also provided for increased penalties for "serious contraventions" that are ten times the penalties for normal contraventions.

When did Mr Basi commence employment with Namitha Nakul? 140 The applicants submit that Mr Basi commenced working for Namitha Nakul at the Wollongong Restaurant on or about 19 July 2016. 141 The respondents submit that Mr Basi did not commence working for Namitha Nakul at the Wollongong Restaurant until 16 November 2016. 142 Mr Basi gave evidence that he commenced working at the Wollongong Restaurant on or about 19 July 2016 and received an amount of $600 per week from Mr Usha in cash from that time until he started receiving payments by bank transfer in February 2017. 143 Mr Usha gave evidence that Mr Basi did not commence working at the Wollongong Restaurant until 16 November 2017 after the transfer of Mr Basi's subclass 457 visa had been approved. 144 I accept the evidence of Mr Basi in preference to that of Mr Usha on this issue. I am satisfied that Mr Basi commenced working for Namitha Nakul at the Wollongong Restaurant on or about 19 July 2016, being the date that he accepted the Basi Employment Offer, for the following reasons. 145 First, Mr Basi's evidence is corroborated to a significant extent by his bank statements. They show that he was in Wollongong from no later than 25 July 2016, a city with which he had no prior connection, until about May 2017, when he commenced to engage in regular transactions around the Nowra area. 146 Second, Mr Basi's bank statements also show a pattern of transactions consistent with his account that he worked for the respondents, was paid in cash an amount of $600 per week in the period up to the end of January 2017 and made regular international transfers of money to his parents in India. A summary of those transactions appears below: Date Description Amount 8 Aug 2016 Cash Deposit $1200 22 Aug 2016 Cash Deposit $470 29 Aug 2016 Cash Deposit $500 5 Sep 2016 Cash Deposit $500 12 Sep 2016 Cash Deposit $500 15 Sep 2016 Western Union International transfer $2000 19 Sep 2016 Cash Deposit $600 26 Sep 2016 Cash Deposit $500 10 Oct 2016 Cash Deposit $1100 7 Oct 2017 Western Union International transfer $1600 17 Oct 2016 Cash Deposit $450 24 Oct 2016 Cash Deposit $600 31 Oct 2016 Cash Deposit $500 7 Nov 2016 Cash Deposit $500 14 Nov 2016 Cash Deposit $530 21 Nov 2016 Cash Deposit $300 28 Nov 2016 Cash Deposit $500 5 Dec 2016 Cash Deposit $700 13 Dec 2016 Western Union International transfer $216.45 19 Dec 2016 Cash Deposit $1100 20 Dec 2016 Western Union International transfer $205.49 29 Dec 2016 Cash Deposit $600 2 Jan 2016 Cash Deposit $450 Cash Deposit $150 11 Jan 2016 Western Union International transfer $205.83 13 Jan 2016 Cash Deposit $500 19 Jan 2016 Western Union International transfer $792.61 25 Jan 2016 Cash Deposit $1100 1 Feb 2016 Western Union International transfer $1180.23 Western Union International transfer $1959.37 11 Mar 2017 Western Union International transfer $1000.95

147 The cash deposits continued in much the same amounts and frequency between 16 November 2016 and 8 February 2017, that is, in the period after Mr Usha accepted that Mr Basi commenced employment up until Mr Usha commenced paying Mr Basi by bank transfer. Mr Usha admitted that he paid Mr Basi in cash when he commenced even though he was familiar with making electronic funds transfers to pay business expenses. 148 Third, no suggestion was made to Mr Basi in cross-examination that he had found any alternative employment in Wollongong in the period between July and November 2016. 149 Fourth, Mr Usha had been seeking the assistance of a cook in the Wollongong Restaurant from early 2016. Mr Usha had advertised a role as a Cook on Gumtree and on 4 July 2016 he had been approved by the Department to become a sponsor. Mr Usha gave evidence that he made the offer to Mr Basi notwithstanding an unsatisfactory performance by Mr Basi at a trial, saying: "I will hire you, because I need staff". 150 Mr Usha did not identify any other person who filled the role prior to November 2016. 151 Fifth, although the Basi Employment Offer was expressed to be "subject to the successful outcome of your 457 Nomination transfer to our company", I do not give much weight to that reservation. I do not regard Mr Usha as a person whose conduct was dictated by a scrupulous attention to compliance with his legal obligations with respect to the employment of staff. Mr Usha failed to make superannuation contributions for Mr Basi and Mr Haider or pay them annual leave or leave loading during the periods that they were employed by Namitha Nakul. He conceded in cross-examination that he had issued incorrect PAYG statements and that he deferred the payment of salaries from time to time. I note that I issued a s 128 Evidence Act certificate to Mr Usha in relation to that concession.

When did Mr Haider commence employment with Namitha Nakul? 152 The applicants submit that Mr Haider first commenced performing work for Namitha Nakul in about July 2016 at the premises at which the Nowra Restaurant was located (Nowra Premises). 153 The respondents submit that Namitha Nakul did not operate the Nowra Restaurant until March 2017 and any work that Mr Haider might have performed prior to March 2017 was not undertaken for Namitha Nakul.

Background facts 154 On 4 July 2016, Namitha Nakul paid $1000 to the real estate agent who managed the Nowra Premises. On 30 August 2016 Namitha Nakul made a further payment of $452 to the same agent. 155 On 24 August 2016, the business name "1980s A Nostalgic Restaurant" was added to the business names registered to Namitha Nakul. That was the name on the sign at the rear of the building on the Nowra Premises, although "1980s" was far more prominently displayed than what appears to be the words below "A Nostalgic Restaurant" or perhaps alternatively, "An Indian Restaurant", as suggested by the Mr Haider in the course of his cross-examination. 156 A Nostalgic Restaurant Pty Ltd (Nostalgic) was a company that was registered on 22 March 2016. Mr Usha was a director and company secretary of Nostalgic from 22 March 2016 until 23 August 2017. The only other director of Nostalgic during that period was Sabitha, Ashik's wife. The four shareholders in Nostalgic during the same period, each holding one ordinary share, were Mr Usha, Namitha Nakul, Sabitha and Mylutfa Investments Pty Ltd. 157 On 20 September 2016, Namitha Nakul took a three year lease, with a commencement date of 24 August 2016, of the Premises (Nowra Lease). Mr Usha signed the Nowra Lease for Namitha Nakul and provided a personal guarantee of Namitha Nakul's obligations under the lease. 158 The Nowra Restaurant opened on 31 October 2016 under the name "1980's A Nostalgic Restaurant". The business name "1980's" is owned by Nostalgic. On 16 January 2017, Namitha Nakul paid the rent of $1452 on the Nowra Premises to Nowra First National. 159 On both 31 January 2017 and 7 February 2017, $500 was transferred from Namitha Nakul to Mr Haider. The notations for the transfers on Mr Haider's bank statements were, respectively, "adithya salary vaisakh" and "salary vaisakh adithya".

Evidence of Mr Haider, Mr Usha and Ms Kumar 160 Mr Haider gave evidence that he first visited the Nowra Premises in about June 2016 and shortly afterwards had discussions with Mr Usha, Ms Kumar and then Mr Usha, Ms Kumar and Ashik. 161 Ms Kumar accepted that she went to the Nowra Premises with Mr Usha and Mr Haider as Mr Usha wanted to set up a restaurant and to get her opinion whether the Nowra Premises could be converted to a restaurant. Ms Kumar could not recall the date of the visit. 162 Mr Haider gave evidence that he attended a meeting in June or July 2016 with Mr Usha, Ms Kumar and Ashik at the Wollongong Restaurant in which he was offered employment as a cook, told he would be paid the market rate and in which they said to him words to the following effect: We will sponsor you for a 457 visa. The job is full time and after 2 years you can apply for Permanent Residency. We got our permanent residency after having 457 visas ourselves. 163 Mr Haider gave evidence that after receiving this offer from Mr Usha he resigned his then current job at the Garam Masala restaurant. 164 In stark contrast to this evidence, Mr Usha gives evidence that he had meeting with Mr Haider and Ashik at the Wollongong Restaurant "in about early August 2016" in which he only said words to the following effect: Ashik, this is Syed, I think you and Syed both go to the same Mosque at Lidcombe. 165 He gave evidence that a short time later he had a conversation with Ashik at the Wollongong Restaurant in words to the following effect: Ashik: How is your friend going? Do you know if he is a cook? Vaisakh: I know he works at Garam Masala, but don't know his skill level. I can give him a call if you want. Ashik: I have his number already, thanks. 166 Mr Haider gave evidence that a few weeks after resigning from Garam Masala he had a further discussion with Mr Usha about the market rate he was to be paid in which Mr Usha said to him words to the following effect: The market rate is $54,500 or $54,400. I've already talked to Ashik and the other partner has no problem with it. You will be full-time, have paid leave, and you can go to Pakistan anytime and it will be easy. 167 Mr Haider gave evidence that he commenced working at the Nowra Premises on about 10 July 2016, initially getting it ready for trading, clearing out and assembling new furniture, doing cleaning, painting and similar activities and sourcing a tandoori oven at Mr Usha's request. 168 He gave evidence that he worked at the Nowra Premises for around 30 hours per week without receiving any payment, save that he was given some money as expenses by Mr Usha, until the Nowra Restaurant opened on 31 October 2016. He stated that he was in regular contact with Mr Usha prior to the opening of the Nowra Restaurant. 169 Mr Usha gave evidence that the payment from Namitha Nakul to the real estate agent for the Nowra Premises on 4 July 2016 was to get the "paperwork" started. He conceded that he provided assistance to Ashik in preparing the Nowra Restaurant for opening but maintained that Ashik wanted to operate the Nowra Restaurant. 170 Mr Usha denied asking Mr Haider to carry out tasks prior to the opening of the Nowra Restaurant. He claimed that the business was not that of Namitha Nakul, as follows: When Namitha Nakul took over the lease that was because it was Namitha Nakul's business. That's right, isn't it?---That's not right because the lease - I took it but that period, from starting, Ashek was running that business. That's why I didn't involve anything. So the painting and everything Ashek did and all the job - everything is Ashek. He managed. 171 Mr Usha gave evidence that in or about October 2016, he visited Ashik at the Nowra Restaurant prior to the date on which it commenced trading and had a conversation with him in words to the following effect: Vaisakh: Why is Syed here? Ashik: He is helping me. Vaisakh: Okay. 172 Mr Haider gave evidence that in a conversation that he had with Mr Usha in around the second week of November 2016, after the Nowra Restaurant had been open for a little over a month, Mr Usha stated: I can only afford to pay you $500 per week. As the restaurant gets busier I will pay you more. 173 Mr Usha gave evidence that the Nowra Restaurant received an Improvement Notice from the Council on or about 2 December 2016. 174 Mr Usha gave evidence that on or about 20 December 2016, he was told by Mr Haider that: For Ashiq if he is not taking things seriously then I am left with no option then to contact other partner [Vaisakh]. 175 The identification of the "other partner" being "[Vaisakh]" was made by Mr Usha himself in his affidavit. 176 Mr Usha then went on to explain in his affidavit that: Following this, Syed would contact me in relation to a number of issues which arose. Initially, I told Syed to contact Ashik but as more problems arose, I took on more responsibility in resolving the problems he brought to me. 177 He further gave evidence that a Prohibition Order was issued prohibiting trading on 13 January 2017, and that on 15 March 2017, there was a third inspection that resulted in the Nowra Restaurant again being closed. Mr Usha gave evidence that Namitha Nakul took over the operation of the Nowra Restaurant from the end of March 2017 when it reopened as "Adithya Kerala Nowra". 178 Mr Usha gave the following explanation of how Namitha Nakul took over the operation of the Nowra Restaurant in mid-March 2017: Vaisakh: You are not interested to run the business. There is two options, one, the Council shuts you down, or, two you give me all the shares in the business and I will run it. Ashik: Okay, I don't want the business. 179 Mr Usha gave evidence that Mr Haider did not commence working for Namitha Nakul until March 2017, around the time Mr Usha and Namitha Nakul took over the running of the Nowra Restaurant from Ashik. 180 Mr Haider also gave evidence, that in April 2017, when Mr Basi started at the Nowra Restaurant, Mr Usha told Mr Haider that he would pay him $600 a week. 181 That amount was the same amount that Mr Basi was in fact receiving, after the cashback arrangements were taken into account.

Consideration 182 Mr Haider's evidence concerning the work that he undertook at the Nowra Premises in the period between 10 July and 30 October 2016 was not contradicted in any material respect by the respondents and I accept it. 183 Rather, the relevant dispute was for whose benefit the work was undertaken. 184 I am satisfied that the work that Mr Haider was doing on the Nowra Premises in the lead up to the opening of the Nowra Restaurant on 31 October 2016 and then in the period to 31 March 2017 was ultimately being undertaken for Namitha Nakul and that Mr Haider was being employed on a full time basis. I have reached that conclusion for the following reasons. 185 First, Mr Usha arranged for Mr Haider to work at the Nowra Premises prior to the commencement of trading by the Nowra Restaurant under the name "1980s A Nostalgic Restaurant", Mr Haider had frequent contact with Mr Usha prior to March 2017 and the only evidence of any payments being made to Mr Haider during the period from July 2016 to March 2017 were payments from Namitha Nakul, described as salary payments, and reimbursements by Mr Usha of expenses incurred by Mr Haider. 186 Second, I accept the evidence given by Mr Haider concerning his conversations with Mr Usha in June, July and November 2016 as to the basis on which he was to be employed. There was no substantive challenge to Mr Haider's evidence in the course of his cross-examination and it was consistent with the apparent logic of events and the facts capable of being objectively established. Mr Usha was looking to open a new restaurant in Nowra and needed full time staff to operate it and Mr Haider was prepared to leave his current employment and move to Nowra. The absence of any payment consistent with full time employment is explicable given the start-up nature of the Nowra Restaurant and the informal and ad hoc manner in which Mr Usha approached his responsibilities as an employer. The contrary evidence of Mr Usha was inherently implausible, particularly the impression sought to be created that he had no knowledge that Mr Haider was working at the Nowra Premises until he observed him working there during a visit to Ashik in October 2016. 187 Third, Mr Usha and Namitha Nakul were inextricably linked in the operation of the Nowra Restaurant under the trading name "1980s A Nostalgic Restaurant". Mr Usha was a fellow director of Nostalgic with Sabitha, Namitha Nakul was the owner of the business name "1980s A Nostalgic Restaurant" and it had entered into the Nowra Lease and paid rent under the Nowra Lease during that period. 188 Fourth, I accept that Ashik and Sabitha, together with Mr Haider, were physically operating the Nowra Restaurant on a day to day basis under the trading name "1980s A Nostalgic Restaurant" in the period between 31 October 2016 and approximately January 2017. This finding, however, is of little significance in the absence of any evidence that Mr Haider received any payment from Ashik or Sabitha, either in the period up to 31 October 2016 or in the period that the Nowra Restaurant traded as "1980s A Nostalgic Restaurant", and Mr Haider's evidence that he only received payments from Mr Usha for his work during these periods. 189 Fifth, the explanation provided by Mr Usha as to the circumstances in which he took over the Nowra Restaurant from Ashik is more consistent with the existence of an existing business relationship that Mr Usha and Namitha Nakul had with Ashik rather than an arms-length transaction between two discrete parties. There was no offer of any payment by Mr Usha to Ashik for the restaurant, nor was there any evidence that Ashik made any contribution towards the rent for the Nowra Premises during the period the "1980s A Nostalgic Restaurant" operated, nor that he paid any wages or made any other payments to Mr Haider. 190 Sixth, the respondents did not call Ashik, and gave no explanation for why they failed to do so. The applicants submit that by reason of the failure of the respondents to call Ashik or provide an explanation for why they had failed to do so, I can more readily draw the inference from the evidence of Mr Haider and the evidence concerning the Nowra Lease that Namitha Nakul was the business owner and operator of the Nowra Restaurant between July 2016 and March 2017. The respondents submit that Ashik was not a director of Namitha Nakul and it cannot be said there was an expectation that he be called by the respondents to give evidence. They submit that the applicants had an equal opportunity to call Ashik or subpoena him to give evidence for the applicants. 191 A Jones v Dunkel (1959) 101 CLR 298 inference can only be drawn where three requirements have been met: first, there was an expectation that one party, as opposed to another, would call the witness; second, the evidence of that witness would have elucidated a particular matter; and third, the absence of that witness was unexplained: see Payne v Parker [1976] 1 NSWLR 191 at 201 (Glass JA); Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2021] HCA 17 at [169] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ) and [263]-[264] (Heydon J). 192 An unexplained failure to call a witness warrants only the drawing of an inference that the uncalled evidence would not have assisted the party's case (but not an inference that such evidence would have been adverse), and the court drawing, with greater confidence, other inferences open on the evidence: see Kuhl v Zurich Financial Services Australia Ltd and Another (2011) 243 CLR 361; [2011] HCA 11 at [63]-[64] (Heydon, Crennan and Bell JJ). The rule cannot be used to fill gaps in the evidence or to convert conjecture into suspicion: Jagatramka v Wollongong Coal Limited [2021] NSWCA 61 at [49] (Bathurst CJ, Bell P and White JA). 193 I am satisfied that there is sufficient evidence of the relationship between Ashik and Mr Usha for me to conclude that there was an expectation that the respondents, rather than the applicants, would call Ashik. Mr Usha and Namitha Nakul were inextricably linked in the operation of the Nowra Restaurant as explained above. 194 I am satisfied that it is appropriate to draw the Jones v Dunkel inference sought by the applicants and I have therefore more readily drawn the inference that Mr Usha and Namitha Nakul were ultimately responsible for the work that Mr Haider undertook at the Nowra Premises and the Nowra Restaurant prior to the end of March 2017.

Is Mr Haider entitled to payment by Namitha Nakul for the work he performed on the Nowra Premises between about July 2016 and October 2016 on a quantum meruit basis?

Submissions 195 The applicants submit that Mr Haider performed the work at the Nowra Premises in the period between 10 July 2016 and 30 October 2016 at the request of Mr Usha for Namitha Nakul's business at Nowra and Namitha Nakul received the benefit of that work. 196 The respondents submit that Mr Haider did not commence working for Namitha Nakul until the end of March 2017 and Mr Haider did not engage in any work at Namitha Nakul's request before that time. They submit that Mr Haider, therefore, has no available quantum meruit claim against Namitha Nakul. 197 The respondents submit that in the period up to January 2017, the Nowra Restaurant was operated by Ashik and Nostalgic under the business name "1980's", and that Mr Haider accepted during his cross-examination that the sign on the right hand side of the Nowra Premises during this period advertised the restaurant as "1980's". The business name "1980's" was owned by Nostalgic between 23 March 2016 and 2 November 2017. 198 The respondents also submit that because the tandoori oven was removed by the time Mr Basi commenced working at the Nowra Restaurant (at the end of March 2017), Namitha Nakul received no benefit from any work undertaken by Mr Haider in respect of the tandoori oven, that is, the purchase and any preparation work for its installation.

Relevant principles 199 An action on a quantum meruit basis for the value of work done does not depend upon an express or implied contract, but is available where work has been done and accepted by the defendant: Pavey & Matthews Proprietary Limited v Paul (1986) 162 CLR 221; [1987] HCA 5 (Pavey). 200 As Deane J stated in Pavey at [13]: The quasi-contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution. 201 The Full Court in Nield v Mathieson [2014] FCAFC 74, at [76] (Tracey, Bromberg and Mortimer JJ), expressed the following obiter dicta comments directed at the potential availability of a quantum meruit claim in an employment law context: Although it is not strictly necessary for us to do so we would record that, had we been minded to accept the appellants' argument that the trial judge was wrong to find that a contract of employment existed, we would, subject to two reservations, have been disposed to uphold Ms Mathieson's contention that she was entitled to obtain an order in the same terms as Order 1 on the ground that the appellants had been unjustly enriched by the work which Mathieson had performed but in respect of which she had not been paid. We would have valued that contribution to the appellants' business by reference to Ms Mathieson's award entitlements and her statutory entitlements to superannuation contributions and leave. The first reservation is that some discount might have been necessary to take account of the cash payments to Ms Mathieson between August and December 2006, the provision of cigarettes and the value to her of free board and lodgings. Our second reservation is that it would have been necessary for us to have been satisfied, on the evidence, that the appellants had requested Ms Mathieson to perform the work which provided them with the benefit for which they had not paid: see Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 at 664-7. This issue was only lightly touched on in written submissions following trial and was not explored at all on appeal. In these circumstances it is not desirable that we express any concluded views about these issues.

Consideration 202 I am satisfied that the applicants have established that Mr Haider is entitled to recover on a quantum meruit basis the fair value of the work that he performed for the respondents in in the period between 10 July and 30 October 2016 in preparing the Nowra Premises for the operation of the Nowra Restaurant, for the following reasons. 203 First, I accept Mr Haider's unchallenged evidence that from on or about 10 July 2016 until 30 October 2016 he worked an average of 30 hours at the Nowra Premises in preparing the Nowra Restaurant to open for trading as the "1980's A Nostalgic Restaurant", on 31 October 2016, an inference I am more prepared to draw in the unexplained absence of any evidence from Ashik. 204 Second, there was no "applicable genuine agreement" for the work that was undertaken by Mr Haider during that period either pursuant to any formal agreement or an industrial award. 205 Third, I am satisfied for the reasons outlined above that the work was undertaken for the ultimate benefit of Mr Usha and Namitha Nakul, given that the Nowra Premises were leased by Namitha Nakul, Mr Usha's guarantee of the obligations of Namitha Nakul under the Nowra Lease, the circumstances in which Mr Haider was engaged to do the work, the absence of any evidence of any payment for that work from Ashik, the respondents shareholding in Nostalgic and Mr Usha being a director of Nostalgic, combined with the unexplained failure of the respondents to lead any evidence from Ashik to rebut Mr Haider's evidence.

Does s 557C operate in the present proceedings? 206 Before considering the specific contraventions by the respondents of the civil remedy provisions of the FW Act alleged by the applicants it is necessary to address the potential application of s 557C of the FW Act. 207 Pursuant to s 557C of the FW Act, in proceedings relating to a contravention by an employer of a civil remedy provision, where the employer is required to make and keep records but failed to do so, the employer has the burden of disproving the allegations: s 577C(1) of the FW Act. 208 The respondents contend that the applicants cannot rely on s 557C of the FW Act in the present proceedings. 209 The respondents seek to rely on the following observations by Colvin J in Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 (Ghimire) in relation to s 557C of the FW Act: 16. However, s 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 did not work the hours that they claimed, then the effect of section 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 would not have thereby disproved the allegation made by them as to the hours that they worked. 17. It may be that in order for section 557C to apply, the relevant allegation must be made reasonably or bona fide before the provision applies. However, no issue of that kind was raised before the magistrate. The magistrate found expressly that Mr Ghimire and Ms Sharma were not paid anything for their work. They did undertake a considerable amount of work. Mr Quann accepted that they did work at the Lodge during the period alleged. In those circumstances, there was nothing to suggest that the claims were not bona fide. [Emphasis added by the respondents.] 210 The respondents submit each of Mr Haider's and Mr Basi's claims are not made reasonably or bona fide. Mr Haider and Mr Basi allege they each worked in excess of 12 hours a day, six days a week in the face of the undisputed evidence regarding the timing of EFTPOS transactions for the Nowra Restaurant. They submit that Mr Haider and Mr Basi have deposed to vague, imprecise and self-serving evidence to support this allegation including in terms of "frequently took orders after 9.30 pm" and "[i]n the summertime, [Mr Haider] frequently finished after midnight and often closer to 12.45 am". They contend that there has been no attempt to give specific evidence to support the allegations. 211 The respondents submit, in determining whether s 577C of the FW Act should apply, the Court ought to have regard to the following: (a) Mr Haider failed to call witnesses who could have provided the court with an independent account of relevant events and circumstances in the proceedings; (b) Mr Basi failed to adduce evidence to the Court of hours and days worked as recorded in his mobile telephone app data between May and August 2018 (I return to this issue later in these reasons); and (c) Mr Basi and Mr Haider made no effort to provide any detailed or specific evidence of their work hours, instead relying on a blanket 12 hours per day, six days per week (even to the extent, when proceedings were contemplated, of recording details which would then have been recent memory). 212 Whilst it may be acceptable to plead in such general terms, the respondents submit that in order to engage the benefit of s 557C of the FW Act, the applicants must set out the best possible specific evidence to support the general pleading. The respondents submit that the applicants have made no effort to provide details of specific starting or finishing times, even within the last month or so of their employment. 213 The respondents have admitted in their defences to contraventions of the requirements to keep records, including accurate payslips, but the admission did not extend to a failure to keep overtime records. The respondents deny there was any overtime worked by Mr Basi or Mr Haider and say there were therefore no records to keep. 214 In light of the above, and in reliance on the obiter reasoning in Ghimire, the respondents submit the applicants have not made a reasonable and bona fide claim and, despite the respondents' failure to keep records pursuant to ss 535 and 536 of the FW Act, they submit that the applicants should not be entitled to rely on s 557C of the FW Act to reverse the burden of proof. 215 The applicants submit, and I accept, that the approach taken by the respondents to s 557C of the FW Act would in effect make the section largely nugatory in practice. They submit that the purpose of the section is not to allow an employer to benefit from its own failure to maintain appropriate records in defending a claim for contravention of the FW Act. The applicants submit that the respondents' complaint is essentially that the applicants' evidence is insufficiently specific but that, they argue, is the very contention that s 557C seeks to preclude an employer from making. 216 The applicants further submit that it is not evident what further specific evidence might be required in addition to the evidence that the applicants have given as to the pattern of work that they performed for the respondents. 217 I do not accept the respondents' submission that the claims advanced by Mr Basi and Mr Haider as to their hours of work are not bona fide nor reasonably made. Both were employed pursuant to employment offer letters that stipulated that they were being employed on a full time basis and although their commencement dates were disputed, there was no suggestion that they did not work at the Restaurants for Namitha Nakul for material periods. 218 I have therefore approached the questions concerning the hours that Mr Basi and Mr Haider worked for Namitha Nakul and other aspects of their employment addressed by the Award the subject of the alleged civil remedy contraventions on the basis that the applicants have the benefit of s 557C of the FW Act.

What were the hours of work performed by Mr Basi and Mr Haider at the Restaurants?

Submissions 219 The applicants submit that the Court should accept the evidence of Mr Basi and Mr Haider that they worked between about 9.30 am and 10.00 pm, or later, at the Restaurants on Tuesday to Sunday each week. The applicants rely on the failure of the respondents to comply with their obligations to keep records of overtime worked and to issue payslips pursuant to s 557C to reverse the onus of proof, thus requiring the respondents to disprove the hours of work alleged to have been worked by Mr Basi. 220 The applicants submit that it is illogical that the respondents: (a) would engage experienced and skilled persons such as Mr Basi and Mr Haider, and not avail themselves of those skills; and (b) would pay Mr Basi and Haider so much more than the law requires if they were in fact performing the work for the hours claimed by the respondent. 221 The applicants also sought to rely on the evidence of the hours worked by Ms Kumar as the Head Chef at the Wollongong Restaurant, typically arriving between 11.00 am and noon and working until 10.00 pm, with a break between 2.30 pm and 3.30 pm, from Tuesday to Sunday, as corroborating the hours claimed to have been worked by Mr Basi and Mr Haider. In addition, each of Mr Usha, Mr Sulatha and Ms Sujith gave evidence that they worked in the Restaurants from Tuesday until Sunday. Mr Usha gave evidence that over the period between April 2016 and July 2019, the Wollongong Restaurant was open between noon and 10.00 pm, Tuesday until Sunday. 222 The respondents submit that Mr Basi generally worked between 5.30 pm and 9.30 pm at the Wollongong Restaurant and between 5.00 pm and 9.00 pm at the Nowra Restaurant, and Mr Haider generally worked between 12.00 pm and 2.30 pm at the Nowra Restaurant. 223 The respondents submit that the hours alleged to be work by the applicants are inherently implausible given the evidence of Mr Usha, Ms Kumar, Mr Sulatha and Ms Sujith, the EFTPOS records for the Nowra Restaurant that revealed only 0.2% of transactions at the Nowra Restaurant occurred before 11.30 am and only 5% of transactions at the Nowra Restaurant occurred after 9.30 pm, and the limited amount of food preparation required at the Nowra Restaurant.

Evidence 224 Mr Usha gave evidence that Mr Basi typically worked during his employment with Namitha Nakul from: (a) 5.30 pm to 9.30 pm at the Wollongong Restaurant between 16 November 2016 and 27 March 2017; and (b) 5.00 pm to 9.00 pm at the Nowra Restaurant between April 2017 and July 2018. 225 Mr Usha's evidence as to the hours that Mr Basi worked at the Wollongong Restaurant from March 2017 was corroborated by the evidence of Ms Kumar and at the Nowra Restaurant in the period from September 2017 by the evidence of Mr Sulatha and Ms Sujith. 226 Mr Usha gave evidence that Mr Haider typically worked during his employment with Namitha Nakul: (a) the dinner shift (5.30 pm to 9.30 pm) at the Wollongong Restaurant between 28 March 2017 and May 2017; (b) from 12.00 pm to 2.30 pm (Wednesday to Sunday) at the Nowra Restaurant between May 2017 and 25 March 2018, except in July 2017 where he also worked the dinner shift (5.00 pm to 9.00 pm) while Mr Basi was on leave; (c) either the lunch shift (12.00 pm to 2.30 pm) at the Nowra Restaurant or the dinner shift (5.30 pm to 9.30 pm) at the Wollongong Restaurant between 27 March 2018 and 3 June 2018; and (d) both the lunch shift (12.00 pm to 2.30 pm) and the dinner shift (5.30 pm to 9.30 pm) at the Wollongong Restaurant between 5 June 2018 and 14 August 2018. 227 Mr Usha's evidence as to the hours that Mr Haider worked at the Wollongong Restaurant was substantially supported by the evidence of Ms Kumar, and his evidence as to Mr Haider's hours at the Nowra Restaurant in the period from September 2017 was supported by the evidence of Mr Sulatha and Ms Sujith. I note, however, that Mr Usha's evidence that Mr Haider worked only Wednesdays to Sundays from 12.00 pm until 2.30 pm at the Nowra Restaurant is not supported by the evidence of Mr Sulatha or Ms Sujith. Both simply describe Mr Haider working the "lunch shift", and they do not exclude Tuesday from the days that Mr Haider worked at the Nowra Restaurant. 228 The EFTPOS records for the Nowra Restaurant reveal that in the period from 9 May 2017 to 11 April 2019: (a) only 5% of transactions occurred after 9.30 pm (with the latest transaction being at 10.45 pm); and (b) only 0.2% of transactions occurred before 11.30 am.

Payslips 229 The payslips issued by Namitha Nakul to Mr Basi (Basi payslips) and to Mr Haider (Haider payslips) are not a reliable record of the actual hours worked by either Mr Basi or Mr Haider. 230 The Basi payslips for the period 7 November 2016 to 15 July 2018 record that Mr Basi worked "Ordinary Hours" of 76 hours each fortnight at an hourly rate of $27.83. 231 The Basi payslips are consistent with the Basi Employment Offer, in that the employment was full time, namely 38 hours a week (as stipulated by the Award). They are not consistent, however, with the positions sought to be advanced by either the applicants or the respondents in the proceedings as to the hours that Mr Basi actually worked at the Restaurants. 232 The Haider payslips for the period: (a) 27 March 2017 to 9 April 2017 record that Mr Haider had an annual salary of $8,320 payable fortnightly in a gross and an after tax amount of $320 and worked 20 hours each fortnight at an hourly rate of $16; (b) 10 April 2017 to 2 July 2017 record that Mr Haider had an annual salary of $8,320 payable fortnightly in a gross and an after tax amount of $640 and worked 40 hours each fortnight at an hourly rate of $16; (c) 3 July 2017 to 17 July 2017 record that Mr Haider had an annual salary of $8,320 payable fortnightly in a gross and an after tax amount of $320 and worked 20 hours each fortnight at an hourly rate of $16; (d) 17 July 2017 to 25 March 2018 record that Mr Haider had an annual salary of $8,856 payable fortnightly in a gross and an after tax amount of $340.60 and worked 20 hours each fortnight at an hourly rate of $17.03; (e) 26 March 2018 to 15 July 2018 record that Mr Haider had an annual salary of $39,955 payable fortnightly in a gross amount of $1,536.72 and an after tax amount of $1,214.72 and worked 76 hours each fortnight at an hourly rate of $20.22; and (f) 16 July 2018 to 14 August 2018 record that Mr Haider had an annual salary of $39,955 payable fortnightly in a gross amount of $1,536.72 and an after tax amount of $1,332.72 and worked 76 hours each fortnight at an hourly rate of $20.22. 233 In summary, the Haider payslips record him working 10 hours each week between 27 March 2017 and 9 April 2017, 20 hours each week between 10 April 2017 and 2 July 2017, 10 hours each week between 3 July 2017 and 25 March 2018, and 38 hours each week from 26 March 2018 to 14 August 2018. 234 The Haider payslips, unlike the Basi payslips, do not even purport to reflect the terms of the employment offers made by Namitha Nakul from the date of receipt of the Department's approval of Namitha Nakul's sponsorship. The respondents received approval from the Department on 19 October 2017 but it was not until 26 March 2018 that the payslips recorded Mr Haider working full time and then only at an annual salary of $39,955, notwithstanding that the Department's approval had been obtained on the basis of an annual salary of $55,000. I note, however, that Mr Haider's application for a subclass 457 visa was ultimately rejected by the Department on 16 August 2018. 235 Moreover, the Haider payslips record Mr Haider only working 10 hours each week in July 2017. This was only half the hours recorded for each week between 10 April 2017 and 2 July 2017. This reduction in recorded hours is inexplicable given Mr Usha's evidence that when Mr Basi was in India for his wedding in July 2017, Mr Haider worked both the lunch and the dinner shifts at the Nowra Restaurant.

Where was the food served at the Nowra Restaurant prepared? 236 A significant aspect of the respondents' challenge to the hours that Mr Basi and Mr Haider claimed they worked was the extent to which, on the respondents' case, much of the food served at the Nowra Restaurant was substantially prepared in advance at the Wollongong Restaurant and then transported to Nowra, in part due to Mr Basi's alleged limited cooking skills. 237 Ms Kumar gave evidence that: All food for the Nowra restaurant, except dosa and rotti was cooked at the Wollongong Restaurant and delivered to the Nowra Restaurant as required by either myself and Vaisakh or the Fourth Respondent (Sujith) 238 Ms Kumar conceded in cross-examination that the statement was, at the very least, incorrect in respect of the prawn dishes and the onion bhajis. 239 Counsel for the applicants, Ms Doust, somewhat colourfully submitted in her closing written submissions, in response to the evidence of Ms Kumar, that: The arrangement apparently involved 10 kilogram buckets of half-cooked chicken ("The chicken was half-cooked and then transported from Wollongong down to Nowra. Is that what you're saying?---Yes." [T.580.20]) and rice-based dishes such as biryani [see, e.g. Ms Sujith at T593.30] wending their way down the Princes Highway to Nowra over an hour away by car after having been left to cool in Wollongong.

Consideration 240 The fundamental tension in the case advanced by the respondents is that they are seeking to advance a case that Mr Basi and Mr Haider only worked part time at the Restaurants, generally only worked a lunchtime or a dinner shift and performed duties not much beyond what could be expected from a kitchen hand, but at the same time they contend that they agreed to sponsor each of them as full time cooks and, at least with respect to Mr Basi, purported to pay him on that basis for the whole period of his employment by Namitha Nakul. This difficulty is compounded by the extent to which Mr Usha and Ms Kumar gave evidence of the limited cooking skills of Mr Basi and Mr Haider, and Mr Basi's poor attitudes as employees. 241 At the same time, the evidence given by Mr Usha, to the extent that it is supported by the evidence of Ms Kumar, Mr Sulatha and Ms Sujith and the objective evidence of the revenue generated by the Nowra Restaurant and the ad hoc manner in which Mr Usha operated the Restaurants, particularly with respect to his lack of compliance with regulatory requirements, casts significant doubt on the hours of work that Mr Basi and Mr Haider claim to have worked for Namitha Nakul. 242 It is difficult to reconcile the conflicting evidence relied upon by the applicants and the respondents concerning the number of hours worked by Mr Basi and Mr Haider. Much of that difficulty arises because of the manner in which the respondents conducted their businesses at the Restaurants. 243 The Restaurants were operated as family businesses with little attention being given to creating and maintaining accurate employment records that might have provided an objective contemporaneous record of the hours worked by Mr Basi and Mr Haider. 244 I am not satisfied, however, given the evidence of Mr Usha, to the extent that it is supported by Ms Kumar, Mr Sulatha and Ms Sujith, that Mr Basi or Mr Haider worked, on average, more than 38 hours per week or for more than five hours at any one time, given the relatively limited duration of the lunch and dinner shifts at the Restaurants, the dependence by the respondents on family and household members undertaking work at the Restaurants, the limited business generated, by at least the Nowra Restaurant, the very limited transactions at the Nowra Restaurant for the lunch shift prior to 11.30 am and the dinner shift after 9.30 pm, and the extent to which the food served at the Nowra Restaurant was prepared by Ms Kumar in the Wollongong Restaurant. 245 I am satisfied that this evidence, when weighed against the generalised evidence given by Mr Basi and Mr Haider of the extreme hours that they worked at the Restaurants, is sufficient to discharge the onus placed on Namitha Nakul by reason of s 557C of the FW Act with respect to the 12 hour, six day a week claims advanced by the applicants. 246 I am not persuaded, however, that the hours of work undertaken by Mr Basi and Mr Haider were as narrowly confined as claimed by Mr Usha and in more general terms by Ms Kumar, Mr Sulatha and Ms Sujith. Further, given the informal manner in which the Restaurants were operated, I do not accept that the hours worked by Mr Basi and Mr Haider were limited to the lunch and dinner shifts. 247 I accept, given the evidence of Ms Kumar, Mr Sulatha and Ms Sujith, that on some occasions, Mr Basi and Mr Haider might only have worked a lunch or a dinner shift at the Nowra Restaurant but I find, consistent with the apparent logic of events and the facts capable of being objectively established, that this was very much the exception not the rule. 248 Moreover, irrespective of the actual hours that they might have been required to work in practice, I am satisfied, consistently with their respective offer letters, that each was employed by Namitha Nakul on a full time basis. Although Mr Haider did not receive the Haider Employment Offer until the end of May 2017, I am satisfied that he was effectively working on a full time basis in the Nowra Restaurant from 31 October 2016, an inference that I am more confident in drawing in the period between 31 October 2016 and 31 March 2017 by reason of the failure of the respondents to call Ashik or to explain his absence. 249 The respondents submit the failure by Mr Basi to adduce the data from a Fair Work Ombudsman mobile app that he had on his mobile telephone on which he had recorded the hours that he worked from around May or June 2018 at the Nowra Restaurant is sufficiently unexplained to allow the Court to draw the inference that the evidence would not have assisted Mr Basi's case (and in particular that he did not work the claimed 12 hours each day, six days per week during the period of his employment by Namitha Nakul). Mr Basi gave evidence that he had provided the work hours recorded on the app to Mr Arthur Rorris, the secretary of the South Coast Labour Council, but on ceasing employment with Namitha Nakul he had deleted the app from his mobile telephone. When pressed in cross-examination as to why he had deleted the app, Mr Basi responded: I was expecting my 489 visa and I want to move away from there, that's it. 250 Given the quantum of the claim that he was making against the respondents, the explanation for the deletion is difficult to accept. In a letter from the South Coast Labour Council, signed by Mr Rorris, to the respondents dated 31 July 2018, Mr Basi demanded payment of an amount of approximately $227,000 by reference to the hours that he claimed to have worked at the Restaurants. The data on the app could reasonably be expected to have had considerable evidential value in substantiating that claim. The receipt of a 489 visa would not have otherwise assisted Mr Basi in pursuing a claim for that very significant quantum of money. It is implausible that Mr Basi did not appreciate the significance of the app data to the claim that he was making against the respondents at the time that he deleted it. 251 The rule in Jones v Dunkel also applies to the failure by a party to tender documents: see Burke v LFOT Pty Limited (2002) 209 CLR 282; [2002] HCA 17 at [134] (Callinan J); Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 at [124]-[131] (Croft J). 252 In all the circumstances, I accept that the failure by Mr Basi to adduce the app data from his mobile telephone, by reason of his decision to delete it, was not sufficiently explained so as to preclude me from drawing an inference that it would not have assisted Mr Basi's case and I have therefore, in the case of Mr Basi, more confidently found that he did not work the claimed 12 hour days, six days a week while he was employed by Namitha Nakul.

Were Mr Basi and Mr Haider afforded the breaks required by the Award when working for Namitha Nakul at the Restaurants? 253 Mr Basi gave evidence that there were no set times for breaks while he was working for Namitha Nakul. He stated that on occasions Mr Sulatha or Ms Sujith would tell him to take a break for food, but he maintained that he remained on call during his break and was required to return to the Nowra Restaurant if an order was placed. 254 The applicants submit that before Mr Basi commenced working with him, Mr Haider did not have any breaks. They submit that other than on a few occasions, the Nowra Restaurant remained open throughout the afternoon, and Mr Haider and Mr Basi were not allowed to refuse any orders. At best, they submit, Mr Haider and Mr Basi could sit outside on Tuesdays, Wednesdays and Thursdays, but subject to them remaining in the close vicinity of the restaurant. 255 In the absence of positive evidence that demonstrated that Namitha Nakul afforded them the breaks required, the applicants submit that the Court would accept their evidence that they were not given proper breaks. They submit that whilst while they may have been permitted to eat or sit down this does not ameliorate the objective seriousness of the contravention and that a period of rest which is subject to recall, and requires the employee to remain at the premises, is not in fact a break. 256 Mr Basi was cross-examined at length in relation to breaks at the Restaurants. Mr Basi claimed to have been given "no break at all" while working for Namitha Nakul but later agreed he would sit on the floor to have his lunch. However, Mr Basi maintained that this could not be classified as a break. He stated there was consistently lots of work to do, including things such as preparation of dough for the following day and other jobs including checking groceries and cleaning. 257 Mr Sulatha and Ms Sujith gave evidence of telling Mr Basi to take a break and have something to eat when the restaurant was quiet. 258 The respondents submit that given Mr Basi and Mr Haider were in truth only required to work at most four hour shifts that the issue of breaks required by the Award did not arise. 259 I accept that on occasions Mr Basi and Mr Haider may have carried out tasks between the lunch and dinner shifts but I am satisfied that these tasks were relatively limited and irregular given the ad hoc manner in which Mr Usha conducted the Restaurants and that his family members and Ms Kumar were more likely to have undertaken these additional tasks during those periods given their greater ties and apparent commitment to Mr Usha. 260 I am satisfied that Mr Basi and Mr Haider were not provided with breaks at set times but I am also satisfied, given my findings above, that Mr Basi and Mr Haider would rarely, if ever, had to work more than five hours without a break. The Restaurants had distinct and limited opening hours for lunch and dinner shifts of much less than five hours duration, much of the food for the Restaurants was prepared in advance by Ms Kumar and the trading results of the Restaurants, particularly the Nowra Restaurant, established that the Restaurants were trading relatively slowly and ultimately were both closed down. The Award obligation to give an employee a break only arises where an employee works for five or more hours.

What duties did Mr Basi and Mr Haider perform? 261 The scope of the duties performed by Mr Basi and Mr Haider for Namitha Nakul at the Restaurants was the subject of much conflicting evidence.

Evidence 262 Mr Basi gives evidence that he was responsible for turning on machines, grinding rice for dosa batter, boiling potatoes, making dough, preparing gravies and sauces, chopping onions and other vegetables, preparing dosa batters and cutting and cooking meats. Mr Basi did not draw any distinction in his written evidence between his duties at the Wollongong Restaurant and the Nowra Restaurant. 263 Mr Basi accepted during cross-examination that some stock items were delivered "pre-prepared" such as the dosa batter (as the Nowra Restaurant did not have a rice grinder) but otherwise maintained that the balance of the groceries which were delivered were uncooked and prepared by him (or Mr Haider) in Nowra. 264 Mr Haider gives evidence of being responsible for preparation, cooking and service of dishes and meals, training another person (without experience), preparation and safe use of the tandoori oven, cleaning the kitchen and restaurant before and after service, ordering food from Mr Usha and stock control, collection of bulk food and stores, occasional deliveries and letterboxing flyers. On the basis that the tandoori oven was removed after the renovations undertaken by Namitha Nakul in March 2017, this list appears to refer to the period before Mr Basi commenced working at the Nowra Restaurant. 265 Mr Haider and Mr Basi agreed that once Mr Basi began working at the Nowra Restaurant they shared all the responsibilities for doing kitchen work, with Mr Basi stating he was in charge of the kitchen. 266 In cross-examination Mr Haider clarified the extent of the work he undertook in the preparation and cooking of dishes and meals. Mr Haider confirmed that he was not good at cooking dosa from batter, he had not cooked a dish called kallappam and he had only tried cooking sambar vada but never made it alone, and he had never made ulunda vadai. He stated, however, that he had observed Mr Basi making each of those dishes, and assisted him in preparing them. 267 Mr Usha, Ms Kumar, Mr Sulatha and Ms Sujith gave evidence that the majority of the food served at the Nowra Restaurant was cooked at the Wollongong Restaurant, and delivered each week by Mr Usha and Ms Kumar on Mondays and then additional food was delivered by either Mr Usha or Mr Sulatha (and Ms Sujith) when required. 268 Ms Kumar and Mr Sulatha conceded that some items, such as prawns and the onion bhajis, needed to be cooked in the Nowra Restaurant. 269 Ms Kumar gave evidence that the curries were cooked in Wollongong, delivered to Nowra and if they were not sold within two days it would be taken home to be consumed by the 11 people living with Ms Kumar and Mr Usha. This practice was supported by the report prepared by Ms Csanitz. 270 Mr Usha and Ms Sujith otherwise gave evidence that the duties performed by Mr Basi were relatively limited and his skills did not demonstrate an ability to run a commercial kitchen. 271 Mr Usha and Mr Sulatha each gave evidence that Mr Haider's responsibilities were limited to placing food in warmers, undertaking general pantry duties and arranging food for service.

Consideration 272 I accept that it is necessary to distinguish between the skills an employee may have and the work that was in fact undertaken by an employee. 273 I also accept Ms Kumar's evidence that much of the food served at the Nowra Restaurant was "precooked" at the Wollongong Restaurant. I consider that this was primarily directed at the preparation of the curries and sauces that served as the bases for the dishes served at the Nowra Restaurant and some "precooking" of meat and vegetables. I am satisfied, however, that a not immaterial amount of work was required to be undertaken at the Nowra Restaurant before the food was ready to be served to customers. In particular, I do not accept that it was simply a matter of heating up the food in a microwave or in a saucepan on a hot plate. 274 Ms Kumar was not physically present in the Nowra Restaurant. One or both of Mr Basi and Mr Haider, at least in the period prior to the arrival of Ms Sujith, were the only cooks working in the kitchen of the Nowra Restaurant. Mr Usha may have been present in the kitchen from time to time prior to the arrival of Ms Sujith but it would appear that Mr Usha was performing the role of Restaurant Manager of the Nowra Restaurant during that period. Further, I note that Mr Usha in his affidavit evidence only states that Ms Sujith from September 2017 "often also worked in the Nowra Restaurant". 275 Further, in considering the apparent logic of events, as the applicants submitted: The respondent asks the Court to accept that two people with extensive experience in the restaurant industry elected to launch a new restaurant, offering food cooked elsewhere and reheated, with all of the attendant logistical difficulties and ever-present risk of food-poisoning involved in that course, rather than to terminate an unsatisfactory staff member and engage staff capable of cooking meals to order on site. The only logic that dictates such an approach is one conceived of in hindsight, and dictated by imperative to deny that the only qualified cooks working at the Nowra restaurant other than Mr Basi and Mr Haider, were in fact performing the work they [Mr Basi and Mr Haider] were qualified and engaged to perform. 276 In the circumstances, I do not accept that the work undertaken by Mr Basi and Mr Haider, particularly at the Nowra Restaurant, was limited to duties undertaken by kitchen hands. Rather, I am satisfied that the work that they undertook included work that involved the utilisation of substantive cooking skills.

What is the appropriate Award classification for the employment of Mr Basi and Mr Haider by Namitha Nakul? 277 Relevantly for present purposes, the distinctions in the Award, between a Cook Grade 3 and a Cook Grade 5, is a Cook Grade 3 is a chef who has completed the appropriate level of training and who is engaged in cooking, whereas a Cook Grade 5 is a chef with the appropriate level of training and who performs any of the following: (a) general and specialised duties including supervision or training of other kitchen staff; (b) ordering and stock control; and (c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment. 278 The extension to "specialised cooking" and supervision and training of other cooks is also included in the definition of a Cook Grade 4. 279 The applicants submit that the work performed by Mr Basi at both restaurants aligns (at least) with Cook Grade 4, and aligns with Cook Grade 5 when he worked in the absence of a cook senior to him. 280 The respondents submit that despite Mr Basi alleging to have skills which would classify him at a more senior level, the work he actually undertook while employed by Namitha Nakul is best classified as a Cook Grade 3. 281 In his written evidence, Mr Basi states he was originally employed at the Wollongong Restaurant as the Head Chef, a role which Mr Basi admits was taken over by Ms Kumar when she commenced working at the Wollongong Restaurant. 282 Mr Basi also gave evidence he was the Head Chef or "in charge of the kitchen" while working at the Nowra Restaurant. Mr Haider conceded in cross-examination that he did not cook anywhere near as extensively as Mr Basi and in fact lacked the skills to cook many dishes including dosa, ulundu vadai, kallappam and sambar vada. 283 Mr Usha, Ms Kumar, Mr Sulahta and Ms Sujith give evidence that Mr Basi and Mr Haider were always supervised and worked at the direction of Mr Usha, Ms Kumar or Ms Sujith. 284 Namitha Nakul's solicitors, Maguire & McInerney, however, in their letter to the South Coast Labour Council dated 4 September 2018, stated: We refer to the identified base rate of pay and observe that this was at all times sufficient to meet the minimum rate for a Level 4 employee under the Award. Our view and that of our client is that this classification was appropriate and applied at all times to Mr Basi when working at the Wollongong restaurant. … The payment to be made to Mr Basi on termination is set out in the attached schedule and comprises an amount of $1,205.61 (gross) less applicable tax based on a base rate of pay of $23.42 per hour for a Level 5 employee. … We have formed a view, which is accepted by our client, that for all the work performed at the Nowra restaurant Mr Basi should have been paid at a Level 5 employee rate. 285 It is telling that despite the sustained attempt by the respondents to contend that Mr Haider's duties never extended beyond that of a kitchen hand, the statement that Mr Usha requested Mr Haider sign in response to Mr Basi's allegations included the following representation: I commenced working at the restaurant as an apprentice cook, but I finished my Hospitality Management Course approximately one year ago and I now have a Certificate 3 confirming that qualification. Consequently, I am employed in the Nowra restaurant as a cook, Level 4. 286 I am satisfied, having weighed the conflicting evidence given by the applicants and the witnesses relied upon by the respondents, that the duties performed by Mr Haider fell somewhere between a Cook Grade 3 and Cook Grade 4 classification but closer to a Cook Grade 4 classification, and the duties performed by Mr Basi at the Wollongong Restaurant fell within a Cook Grade 4 classification and at the Nowra Restaurant were equivalent to a Cook Grade 5 classification under the Award. Each had completed an apprenticeship by reason of their past experience and had obtained a trade qualification (Certificate III in Commercial Cookery), was clearly engaged in "cooking duties" and Mr Basi, at least, by reason of his preparation of dosa batters and Mr Haider's observations of the dishes that he prepared, was engaged in general or specialised cooking duties. Further, given that Ms Kumar worked at the Wollongong Restaurant, Mr Basi in a practical sense "supervised" Mr Haider on a day to day basis.

Did Namitha Nakul arrange the hours of work of Mr Basi and Mr Haider in a way that contravened the Award? 287 Namitha Nakul was required by clause 31 of the Award to arrange ordinary hours of work so that: (a) there was a minimum of six hours and a maximum of 11 and a half hours to be worked on any one day (cl 31.2(a)); (b) no employee was rostered to work for more than 10 hours per day on more than three consecutive days without a break of at least 48 hours (cl 31.2(b)); (c) no more than eight days of more than 10 hours may be worked in a four week period (cl 31.2(c)); and (d) every employee was be given a minimum of eight full days off per four week period (cl 31.2(e)). 288 The applicants submit that Namitha Nakul did not do so. They contend that as a matter of its normal practice, it required Mr Basi and Mr Haider: (a) to work 12 hours in a day; (b) to do so for six days in a row for most of their employment; (c) to work 24 days of more than 10 hours in a four week period (that is, 16 ten hour days greater than the maximum allowed by the Award clause over a four week period); and (d) to have only four days off in a four week period, four days off less than the minimum of eight days off. 289 The applicants submit that the arrangement of hours that they allege they worked is largely consistent with the arrangement of Ms Kumar's hours of work. 290 For the reasons outlined above I have accepted that Mr Basi and Mr Haider were employed on a full time basis, that each was required to worked at least a single shift of four hours each day between Tuesday and Sunday but the applicants did not work more than a 38 hour week. 291 I am satisfied that Namitha Nakul contravened clause 31.2(e) of the Award by only giving Mr Basi and Mr Haider four days off in a four week period rather than the stipulated eight days. 292 Further, I find that because the applicants were employed on a full time basis by Namitha Nakul, clause 31.1 of the Award required Namitha Nakul to pay the applicants on average for 38 hours a week and by clause 31.2(a), Namitha Nakul was required to arrange their ordinary hours of work each day so that each worked a minimum of six hours over the course of the day. As the applicants were required to work each day of the week from Tuesday to Sunday, for the purpose of calculating penalty rates for work on weekends, Namitha Nakul was consequently required by clause 31.2(a) to ensure that each of the applicants worked a minimum of six hours on both Saturday and Sunday. 293 The other alleged contraventions of clause 31 of the Award have not been established.

What did Namitha Nakul pay Mr Basi for his work? 294 The respondents were obliged, by s 536(2)(b) of the FW Act to give Mr Basi a payslip that included any information prescribed by the FW Regulations. Regulation 3.46(3) required the payslip to include, inter alia: (a) the hourly rate; (b) the number of hours for which the employee was employed at that rate; and (c) the amount of the payment made at that rate. 295 Mr Usha gave evidence that he did not keep proper records in relation to Mr Basi's employment. He accepted in cross-examination that he did not always pay Mr Basi correctly and that his bank statements were not an accurate record of the amount Mr Basi had been paid. 296 Mr Basi gave evidence that he was paid a total of $76,417.78 by Namitha Nakul comprising: (a) $32,113.42 in the 2016/2017 financial year; (b) $34,916.22 in the 2017/2018 financial year; and (c) $9,388.14 in the 2018/2019 financial year. 297 The respondents submit that in the circumstances the best evidence before the Court of what Mr Basi was paid is Mr Basi's personal bank statements. They contend, however, that this establishes that Mr Basi received $76,417.78, after tax, during his employment with Namitha Nakul, a matter that they submit they are prepared to concede in order to simplify the proceedings. 298 The determination of the amount that was in fact received by Mr Basi, however, turns upon a consideration of what, if any, payments Mr Basi was required to pay back to Namitha Nakul. I return to this issue later in these reasons.

Did Namitha Nakul pay Mr Basi the amount payable to him pursuant to the Award for the work he performed?

Prior to 15 November 2016 299 It is necessary first to consider the position in the period to 15 November 2016. 300 In the period prior to the Department approving Namitha Nakul's sponsorship of Mr Basi on 15 November 2016, Mr Basi was only paid $600 in cash per week. The regular cash deposits Mr Basi made into his account in the period from July 2016 are consistent with him receiving cash in the order of $600 on a regular basis during that period. 301 Mr Basi gave evidence that he was given a copy of the Basi Employment Offer that provided for an annual salary of $55,000 but in his initial discussions with Mr Usha he was told: Ok, I can hire you, but I can only pay you $600 per week at the beginning because it is a new restaurant. I will pay your super. You will have to pay your tax but you can get it back at the end of the year. Once it gets more business and customers I can pay the full amount. Most restaurants ask for thirty thousand or forty thousand dollars for the sponsorship. You don't have to pay that. 302 Mr Basi stated that the $600 per week arrangement was presented by Mr Usha as a temporary departure from what was accepted to be "the full amount". I am satisfied that in its terms the language used by Mr Usha comprehends an obligation on his part to pay a greater amount consistently with the Basi Employment Offer, being an obligation that would ultimately be honoured. It is not exceptional that Mr Basi would accept something less than his legal entitlement during this period, given Mr Usha had referred to existing difficulties but spoke to a better future and promised the situation would only be temporary. Mr Basi's circumstances were at that stage far from ideal. He had recently arrived in Australia and had to find a new employer to sponsor his 457 visa because Chellappas had withdrawn its sponsorship of him because of financial difficulties. 303 Further, and in any event, no "understanding" about contractual terms can operate to relieve an employer of its obligation under the FW Act to abide by the terms of relevant awards. Award rates are not a matter for negotiation between employers and employees. Neither an employer nor an employee can waive those entitlements. 304 As submitted by the applicants, $600 per week was a weekly payment less than even the lowest weekly wage payable to an Introductory Level worker under the Award as at 1 July 2016 of $672.70. 305 I am therefore satisfied that the payments made to Mr Basi by Namitha Nakul in the period between on or about 19 July 2016 and 14 November 2016 were less than the rates payable under the Award.

From 15 November 2016 306 I turn now to the period in which Mr Usha accepts that Mr Basi was employed pursuant to the Basi Employment Offer. 307 The applicants submit that even if the Court accepted Mr Usha's evidence as to: (a) the alleged loans to Mr Basi; (b) that Mr Basi was properly classified as a Cook Grade 3; (c) Mr Basi received the breaks to which he was entitled; and (d) Mr Basi did not work anymore than about 42 hours over 6 days between Tuesday and Sunday, then Mr Basi was underpaid compared with his entitlements under the Award. 308 The parties have advanced various scenarios for the purpose of calculating the amount that Mr Basi should have been paid pursuant to the Award. At one extreme, the applicants contend that Mr Basi worked 12 hour days for six days a week from Tuesday to Sunday with no scheduled breaks. At the other extreme, the respondents contend that Mr Basi worked a single shift each day for six days of approximately four hours but somewhat paradoxically was entitled to be paid on a full time basis of 38 hours per week. 309 The respondents submit that Mr Basi's pre-tax entitlements pursuant to the Award (Cook Grade 3) were $17,230.24 for FY 2016/2017, $29,423.28 for FY 2017/2018 and $5,576.12 for FY 2018/2019, in aggregate $52,229.64. These calculations were based on Mr Basi only working four hours each day and do not include the admitted contraventions to pay annual leave, leave loading and superannuation entitlements. They submit that there has consequently been no underpayment. 310 Namitha Nakul failed to keep records other than the payslips reflecting the hours worked by Mr Basi but I am satisfied that the evidence of Mr Usha, Ms Kumar, Mr Sulatha and Ms Sujith establishes that Mr Basi was not required to and did not work 12 hour days six days a week with no breaks. 311 I am satisfied that while Mr Basi may generally have worked more than a single shift of four hours each day the actual hours worked by Mr Basi each week did not exceed 38 hours. 312 Maguire & McInerney informed the South Coast Labour Council in their 4 September 2018 letter that: It is clear that Mr Basi throughout his employment has been paid a fixed amount of $2,115.38 (gross) per fortnight derived from an annual salary of $55,000 per annum. We refer, in this regard to the payslips issued to Mr Basi by our client throughout the period of the employment. 313 The representation made by Maguire & McInerney was consistent with the base rate of pay for Mr Basi that had been represented would be paid in the Basi Employment Offer. 314 Maguire & McInerney further observed in the their 4 September 2018 letter that: In any case the hourly rate received by Mr Basi for all work performed by him at the Wollongong restaurant was in excess of the minimum rates under the Award for an employee classified as either a Level 4 or Level 5 employee, in that the minimum hourly rate for the higher classification, Level 5, was at the date of his commencement $21.90 per hour. 315 Although not stated expressly, the same observation applied to Mr Basi's work at the Nowra Restaurant given the fortnightly payments to Mr Basi recorded in the payslips was in excess of the rate payable to a Cook Grade 5. 316 The respondents dispute that the payslips accurately reflected the hours worked but they sought to rely on the payslips to demonstrate that Namitha Nakul paid the annual salary that Namitha Nakul had agreed to pay in the Basi Employment Offer. 317 I am therefore satisfied that the purported payments made to Mr Basi by Namitha Nakul exceeded the minimum amounts payable under the Award for the period from 15 November 2016 (the date on which the nomination transfer of the 457 Visa to Namitha Nakul was approved). 318 It is next necessary, however, to consider whether the purported payments to Mr Basi were the subject of any other arrangements that might have caused the amounts actually retained by Mr Basi to be less than the minimum amounts payable under the Award for the period from 15 November 2016. 319 The first "payslip" generated in respect of Mr Basi's employment recorded Mr Basi working 76 hours (that is two weeks of full time work) in the fortnight from 7 November 2016 to 20 November 2016, and being paid a fortnight's pay, namely $1711.38, on 21 November 2016. Thereafter, the payslips continue to "record" payments on a fortnightly (rather than weekly) basis. 320 In February 2017, Mr Usha commenced paying Mr Basi by electronic funds transfer, transferring the amount of $1711 or $1711.38 into Mr Basi's account. That was the fortnightly amount, net of tax, payable to an employee on a salary of $55,000 per annum. The same amount was transferred into Mr Sulatha's account when he commenced. 321 Mr Basi gives evidence that when Mr Usha commenced paying the $1711.38 amount into Mr Basi's account, it was subject to a requirement that Mr Basi pay back to the respondent $511.38 in cash, leaving Mr Basi with an effective wage of $600 per week. 322 Mr Usha gives evidence that the fortnightly payments made by Mr Basi were $500 with respect to repayments of loans that he had advanced to Mr Basi and any amount in excess of $500 were amounts reimbursed to him for food that Mr Basi may have consumed. 323 As I explain later in these reasons, I am satisfied that there were no such loans and the transfer of amounts of $1711.38 to Mr Basi were designed to make it appear that Mr Basi was being paid at the rate specified in the Basi Employment Offer. 324 Further I am satisfied that the respondents did not pay the $1711.38 to Mr Basi: (a) at regular intervals (there was no regular day on which payments were made to Mr Basi); (b) between 13 June 2017 and 11 August 2017, when three fortnightly payments should have been made; (c) between 5 October 2017 and 3 November 2017, when a fortnightly salary payment should have been made between those dates; nor (d) between 15 December 2017 and 10 January 2018, when a fortnightly salary payment should have been made on about 28 December 2017. 325 The latter failure was despite the Namitha Nakul business account having sufficient funds to pay a salary to Mr Basi on each of 27, 28 and 29 December 2017 and the respondent paying Mr Haider some $1100 on 28 December 2017. Mr Basi was not paid any salary between 15 December 2017 and 10 January 2018 and when Mr Basi rang Mr Usha on 28 December he was told that he (Mr Basi) had to pay the PAYG tax. 326 The respondent paid Mr Basi the amount of $1200, instead of $1711.38 on both 7 March 2018 and 26 June 2018. Mr Basi gave evidence that on each occasion this reduced payment was made after he told Mr Usha that he did not have the $510 to pay back to Mr Basi. 327 In addition to the cashback payments, I am satisfied that Mr Basi was required to return approximately $6000 to the respondent in August 2017 and some $1710 in January 2018 to defray the tax payable on his salary.

What did Namitha Nakul pay Mr Haider for his work? 328 Mr Usha accepted that he did not keep proper records in relation to Mr Haider's employment. He agreed in his cross-examination that he did not always pay Mr Haider correctly and that his (Mr Usha's) bank statements were not an accurate record of the amount Mr Haider had been paid. 329 The respondents accepted that the best evidence before the Court of what Mr Haider was paid was the payments recorded in Mr Haider's personal bank statements. 330 Mr Haider gave evidence, by reference to his bank statements, that he was paid $29,980 during his employment with Namitha Nakul. The respondents conceded this amount "in order to simplify the proceedings".

Did Namitha Nakul pay Mr Haider the amount payable to him pursuant to the Award for the work he performed? 331 The applicants submit that the payments to Mr Haider were irregular. In the absence of proper records from the respondent it is difficult to discern precisely what Mr Haider was paid. They submit that it is fair to assume that it was ordinarily $500 per week until about mid 2017. 332 The applicants submit that if the Court is persuaded that Mr Haider worked on a full time basis, even if it concluded that he worked only 38 hours per week, and received wages of $500 or $600 per week (or less allowing for those occasions when there was a complete failure to pay anything), those wages are less than the full-time wages that were payable to the lowest classification in the Award as at 1 July 2016. 333 The respondents submit that Mr Haider's minimum entitlement pursuant to the Award Classification Cook Grade 3 is $32,765 (before tax). The calculation is based on Mr Haider working three hours each day (for 22 days) and four hours each day (for 42 days) in FY 2016/2017; three hours each day (for 169 days), four hours each day (for 46 days) and seven hours each day (for 41 days) in FY 2017/2018, and seven hours each days (for 21 days) in FY 2018/2019. The calculation does not include any entitlements for annual leave, leave loading, payment in lieu of notice or superannuation which are otherwise contraventions admitted by the respondents. 334 I am satisfied that, contrary to Mr Haider's payslips and the evidence given by the respondents' witnesses, Mr Haider was employed by Namitha Nakul as a full time employee in the periods from both 31 October 2016 to 26 March 2017 and from 27 March 2017 to 14 August 2018. 335 I am therefore satisfied that Namitha Nakul did not pay Mr Haider the minimum amount payable to him under the Award as a full time employee of Namitha Nakul working 38 hours a week as a Cook Grade 4 in the period between 31 October 2016 and 14 August 2018.

Was Mr Usha knowingly concerned in any of the alleged contraventions committed by Namitha Nakul? 336 Section 550 of the FW Act provides that a person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. 337 The respondents have conceded in their written submissions that Mr Usha accepts, as the sole director, secretary and shareholder of Namitha, that he is the controlling mind of the company, and that he was involved in and, consequently, was knowingly concerned in any contraventions found to have been committed by Namitha Nakul (or as otherwise already admitted) to the extent they have been pleaded by the applicants. 338 I am satisfied that the concession was appropriately made. 339 Namitha Nakul acted only through Mr Usha. He was aware of and was personally involved in all of the elements of the contraventions alleged, namely: (a) the terms upon which the applicants were employed; (b) the arrangement of hours of work; (c) the demands for payment; and (d) the payment of wages.

Did Namitha Nakul and Mr Usha contravene the Award in respect of Mr Basi and Mr Haider? 340 For the reasons set out above I am satisfied that in addition to the admitted contraventions, Namitha Nakul contravened the Award by: (a) failing to pay Mr Basi the amounts that he was entitled to as a full time employee under the Award in the period between 19 July 2016 and 27 August 2018; (b) failing to provide Mr Basi with a minimum of eight full days off in the period of his full time employment by Namitha Nakul in the period between 19 July 2016 and 24 July 2018 (noting that Mr Basi took annual leave from 24 July 2018 until his resignation on 27 August 2018); (c) failing to pay Mr Haider the amounts that he was entitled as a full time employee in the period between 31 October 2016 and 14 August 2018; and (d) failing to provide Mr Haider with a minimum of eight full days off in the period of his full time employment by Namitha Nakul in the period between 31 October 2016 and 29 July 2018 (the date of his last shift at either of the Restaurants). 341 For these reasons, I am satisfied that Namitha Nakul contravened s 45 of the FW Act between on or about 19 July 2016 and 27 August 2018 in the case of Mr Basi, and between 31 October 2016 and August 2018 in the case of Mr Haider, by arranging the hours of work of the applicants in contravention of clause 31 of the Award, failing to pay weekend penalty rates to the applicants and by reason of the admitted contraventions of the Award by Namitha Nakul (Namitha Nakul Award Contraventions). 342 I am also satisfied that Mr Usha contravened s 45 of the FW Act by being involved in the Namitha Nakul Award Contraventions.

Introduction 343 The respondents seek to explain away the cashback payments made by Mr Basi to Mr Usha on the basis that those payments were regular repayments of loans that Mr Usha and his brother had advanced to Mr Basi and that the other payments made by Mr Basi and Mr Haider to Mr Usha were also repayments of loans that he or his brother had made to them. 344 I am not persuaded that any of the alleged loans were made. Rather, I am satisfied that they were a device advanced by the respondents in the case of Mr Basi to reconcile the discrepancy between the amounts that they had agreed to pay to Mr Basi pursuant to the Basi Employment Offer and the amounts in fact paid to him once the cashback payments and other payments by Mr Basi to Mr Usha are taken into account. Equally, I am satisfied in the case of Mr Haider that they were a device to explain away payments made by Mr Usha to him prior to the dates on which Mr Usha has admitted that Namitha Nakul had employed Mr Haider.

Alleged loans to Mr Basi 345 The respondents contend that Mr Usha and his brother made the following loans to Mr Basi: DATE FROM AMOUNT 28 October 2016 Vaisakh Usha $3,500 10 January 2017 Vaisakh Usha $5,000 14 January 2017 Harisankar Ushakumari INR900,000 (approx. $18,000) 19 January 2018 Vaisakh Usha $10,000 TOTAL approx. $36,500

Did Mr Usha lend Mr Basi $3500 on 28 October 2016? 346 The respondents contend that Mr Usha made a loan of $3,500 to Mr Basi on 28 October 2016 (October 2016 Loan). 347 Mr Usha gave evidence that Mr Basi told him that he had lost his job, needed to pay rent and expenses and send money to India. He stated that Mr Basi told him he needed $4,000 or $5,000 but he was only able to lend Mr Basi $3,500. 348 Mr Basi denies that Mr Usha made the 28 October 2016 Loan. 349 I am satisfied that Mr Usha did not make the 28 October 2016 Loan. It is inherently implausible given the following matters. 350 First, there is no loan agreement or any other document recording or evidencing the existence of the alleged loan. 351 Second, Mr Usha's evidence as to the reasons advanced by Mr Basi for the loan are not persuasive. Mr Basi's rent was only $100 a week, as disclosed in his bank statements. At all times after Mr Basi's arrival in Wollongong he was in a position to pay those modest amounts. No explanation was proffered as to how Mr Basi could have accrued a rental debt that he was unable to pay by 28 October 2016. It is also apparent from his bank statements that Mr Basi had been paying a number of expenses from his account. 352 Mr Basi regularly made international transfers from his account. After 28 October 2016, the next international transfers made by Mr Basi through his account were on 13 and 20 December 2016 of just over $200 each time. If Mr Basi took the money from Mr Usha for the purposes of an international transfer, he then utilised a different method of transfer to that which he customarily used. 353 Third, as at 28 October 2016, Mr Basi had more than $3,200 in his bank account. That balance increased beyond $3,700 on 31 October 2016 when he made a further $500 deposit. He had most of the funds he allegedly required available in his own account. 354 Fourth, if Mr Basi had indeed been given a loan which fell short of the amount he required to meet his alleged expenses, as claimed by Mr Usha, one could expect to see Mr Basi withdraw $500 or $1500 from his account to make good the shortfall. No such withdrawal was made. 355 Fifth, the proposition that Mr Basi received cash which he did not deposit into his account is inconsistent with his practice from early August 2016 of making regular deposits of about $500 per week. There is no deposit of $3,500 into his account after Mr Usha claims to have advanced the money. Nor did Mr Usha provide any explanation for why Mr Basi would need to receive monies, or why Mr Usha would need to provide such monies, in cash, rather than by electronic transfer. 356 Sixth, Mr Basi continued to deposit amounts of $500 or so, including on 31 October 2016. His balance continued to increase through to the end of January 2017, when it reached $7,800. During the same period Mr Usha claims that Mr Basi made cash repayments of the loan in instalments of $500 on 21 November 2016, 28 November 2016, 5 December 2016, 19 December 2016, 29 December 2016, 2 January 2017, 13 January 2017, 25 January 2017 and 30 January 2017, in aggregate $5,400. Over that period there were no cash withdrawals of $500 from Mr Basi's account. Rather, the only cash withdrawals in the period from 28 October 2016 to 30 January 2017 made by Mr Basi from his bank account with the Commonwealth Bank were for amounts between $50 and $100, totalling $700. In the absence of any other identified source of cash, it would appear to follow that for Mr Usha's account to be accepted Mr Basi simply used the cash provided to him pursuant to the October 2016 Loan to repay the loan and not for any of the alleged purposes that Mr Usha claims were represented to him by Mr Basi. 357 Seventh, given the financial position of Namitha Nakul it is inherently implausible that either it or Mr Usha was in a position to make the alleged loans to Mr Basi. The inability of Mr Usha to make the loans was somewhat graphically illustrated by the following exchange with counsel in cross-examination: Weren't they loans from you?---Yes, that's - I'm - that money, I take it from the company account, that's - the company money, I take it, that's what is I give back to the - put it back to the company. That's the things I thought. So the company was lending him the money?---If it's, you know - yes, theoretical - if it's - yes, yes, it's kind of - because he asked me his money but I don't have it, the personal job or anything, because only is I am doing this business. So I take the company, you know, the money and I give to him and what was the moneys he is giving back I am putting back to the bank. That was sitting in a company account. So what my calculation was, what was the money I take the company I am giving back. Like, take it, give to the Midhun, and Midhun repaying, that's moneys slow - little bit, little bit I am putting back to the company.

Did Mr Usha lend Mr Basi $5000 on 10 January 2017? 358 The respondents contend that Mr Usha made a loan of $5,000 to Mr Basi on 10 January 2017 (10 January 2017 Loan). Mr Basi denies that any such loan was made. 359 Mr Usha gave evidence that on or about 10 January 2017 he gave Mr Basi a further $5,000 in cash, at his request. 360 I do not accept that Mr Usha made the 10 January 2017 Loan. 361 First, there is no loan agreement or any other document recording or evidencing the existence of the alleged loan. 362 Second, Mr Basi did not appear to have any compelling need for a loan of $5,000 in January 2017, at least to cover his living expenses as explained above. As at 10 January 2017, Mr Basi had approximately $7,600 in his bank account. 363 Third, no deposit of $5,000 appears in Mr Basi's bank statement at around that time. Rather, his balance increases modestly over the month. He makes Western Union transfers of some $792 and $1180 which were more than covered by the savings that he had accumulated in his account.

Did Mr Usha organise a loan to Mr Basi on about 25 January 2017? 364 The respondents contend that Mr Usha organised a loan of INR900,000 (approximately $18,000) be advanced by his brother, Harisankar Mohanan Ushakumari (Harisankar) for Mr Basi's benefit on or about 25 January 2017 (25 January 2017 Loan). Mr Basi denies that any such loan was made. 365 I do not accept that the 25 January 2017 Loan was made. 366 Mr Usha gave evidence that on or about 14 January 2017 Mr Basi asked him for a loan of between ten to fifteen lakhs in order to purchase a house for his parents in India. Mr Usha gave unchallenged evidence that a "lakh" is equivalent to INR100,000 and that in calculating the exchange rate at that time he proceeded on the basis that INR100,000 was equivalent to approximately $2,000. 367 Mr Usha states that in response to his query as to how the loan would be repaid, Mr Basi told him that he was expecting a dowry from his fiancée's family when he married her in July 2017 and that would be the source of the repayment. 368 Mr Usha gave evidence that his brother, who lived in India, then arranged for a sum equivalent to 9 lakhs (approximately $18,000) to be paid in cash to relatives of Mr Basi at the Thampanoor Central Railway Station in Kerala, India. 369 The only documentary evidence of the alleged 25 January 2017 Loan is a copy of a State Bank of India account statement of Harisankar. The document records two transfers of INR45,000 on 25 January 2017 to Harisankar each with the notation: 25.01.17 TRF TO FD TRANSFER TO Mr HARISANKAR M U 370 The balance of the account is recorded as being reduced from INR900982.75Cr to INR982.75Cr following the transfers. 371 I am prepared to infer that the account statement records an aggregate withdrawal of INR900,000 from Harisankar's account on 25 January 2017 that was equivalent to approximately $18,000, given Mr Usha's evidence on exchange rates referred to above. 372 I do not accept, however, that the account statement otherwise establishes the advance of any money from Harisankar to any relative of Mr Basi in India. 373 It is implausible that a new employee who had just approached their employer for a substantial loan four days previously would approach them again and ask for significantly more money just a few days later. 374 It again is implausible, particularly in circumstances where the loan is said to have been extended by someone other than Mr Usha, that there would not be any documentary record of the arrangement. 375 Further, given the apparent absence of any probative documentary evidence, the failure to call Harisankar to give evidence and the absence of any evidence as to why Harisankar was not called, I have more readily concluded that there was no loan. 376 Moreover, the relevance of the alleged 25 January 2017 Loan to the respondents' defence of the claims made by Mr Basi is not readily apparent. The alleged loan was made by Harisankar, not the respondents. Mr Usha gave evidence that he deposited $8,500 in cash that he received from Mr Basi in four instalments of $500 in May and June 2018 and $6,500 on or about 8 August 2017. There is no record of any of these amounts being provided to Harisankar in India. Rather, Mr Usha's personal ANZ bank statement records a deposit of $6,500 on 8 August 2017 by "CARD ENTRY AT WOLLONGONG BRANCH" and on the same day an "ANZ INTERNET BANKING FUNDS TFER" to an account 183683237 held at bank branch with a BSB 012463 (Other Account). Mr Usha's personal ANZ bank statements record other transfers between his account and the Other Account, including: transfers to the Other Account on 12 September 2017 of $9,000 after receiving $8,400 earlier that day with the notation "CARD ENTRY AT WOLLONGONG BRANCH"; a transfer of $10,000 to the Other Account on 13 December 2017; and deposits from the Other Account of $13,528.32 on 12 December 2017 and $29,000 on 15 December 2017. 377 I am satisfied that the $500 payments formed part of the cashback arrangement implemented by Mr Usha. I address the status of the $6,500 payment below.

Did Mr Usha lend Mr Basi $10,000 on 19 January 2018? 378 The respondents contend that Mr Usha made a further loan of $10,000 to Mr Basi on 19 January 2018 (19 January 2018 Loan). Mr Basi denies that any such loan was made. 379 The only evidence that Mr Usha gave in relation to the making of the alleged 19 January 2018 Loan was: The loan amount was further increased on or about 19 January, 2018, I provided a further $10,000 to Midhun at his request. Annexed and marked VMU-55 is a copy of my personal bank statement showing the withdrawal of $10,000 in cash from a Wollongong ATM. 380 I do not accept that the 19 January 2018 Loan was made by Mr Usha to Mr Basi. 381 First, there is again no loan agreement or any other document recording or evidencing the existence of the alleged loan. I am satisfied that Mr Usha has sought to re-characterise a cash withdrawal that he made for his own purposes on 19 January 2018 as a loan to Mr Basi to assist him in legitimising the cashback arrangements that he had implemented. 382 Second, no reason was advanced as to why Mr Basi would need to receive any monies or Mr Usha would need to provide such monies in cash, rather than by electronic transfer. 383 Mr Basi's bank statements for January 2018 record a balance of up to about $3,000 with modest expenses, apart from the money he was withdrawing to pay the cashback amounts. He did not appear to be without the means to meet any expense that arose. 384 Third, no deposit of $10,000, or any amount in the vicinity of that amount, appears in Mr Basi's account at around that time. If the loan was for his family in India there is no reason why Mr Basi would depart from his usual practice of using Western Union to make those transfers.

Alleged loans to Mr Haider 385 Mr Usha gave evidence that he lent Mr Haider $3,400 between November 2016 and March 2017 (before he commenced working for Namitha). These loans are summarised in the table below: DATE FROM AMOUNT 15 November 2016 Vaisakh Usha $1,900 31 January 2017 Vaisakh Usha $500 7 February 2017 Vaisakh Usha $500 20 March, 2017 Vaisakh Usha $500 TOTAL $3,400

386 Mr Usha gave evidence that he made the loans to Mr Haider in response to requests for assistance during a period that Mr Haider was experiencing financial difficulties. I note the cheque for the first payment was drawn on 15 November 2016 (as recorded on the cheque butt) but was not presented for payment until 29 November 2016. 387 Mr Haider gave evidence that the 15 November 2016 payment (by cheque) and the other three payments were all salary payments by Mr Usha, with the balance of his salary payments being taken out of "the till".

Did Mr Usha lend Mr Haider $1900 on or about 15 November 2016? 388 I am satisfied that Mr Usha did not make a loan to Mr Haider of $1,900 on or about 15 November 2016. 389 First, there is no contemporaneous record identifying the payment as a loan, not even on the cheque butt. 390 Second, Mr Haider denied the money was a loan and stated that it was payment for his work at the Nowra Restaurant. As explained above, I am satisfied that Mr Haider had been undertaking work at the Nowra Restaurant at Mr Usha's request for which he had not received any regular wages or formal remuneration since July 2016. 391 Third, there were insufficient funds in Mr Usha's account to meet the cheque on the date it was drawn. It is implausible that he would be making a loan in those circumstances, in contrast to making a payment he believed he was otherwise obliged to make.

Did Mr Usha make three loans of $500 to Mr Haider? 392 The description of the transfers in Mr Haider's bank statements recording the transfers from the Namitha Nakul account for the alleged $500 "loans" made by Mr Usha on 31 January 2017 and 7 February 2017 was "adithya salary vaisakh". That is inconsistent with either transfer being a loan. Mr Haider denies either transfer was a loan. The claims made by Mr Usha that he was recording the payment as "salary" in anticipation of Mr Haider's future employment and in order to claim the payment as a business expense are inherently implausible. The profound difficulty with this attempt to explain away the salary descriptions is that it is inconsistent with Mr Usha's own evidence that he was not approached by Mr Haider to discuss any potential employment by Namitha Nakul at the Nowra Restaurant until mid-March 2017. The much more compelling explanation for the salary descriptions on the transfers is that Mr Haider was indeed being employed by Mr Usha in that period. 393 As to the alleged $500 loan on 20 March 2017, the description in Mr Haider's bank statement recording the transfer from the Namitha Nakul account was simply "vaisakh adithya". That goes no further than recording the payment was from Namitha Nakul to Mr Haider. Mr Haider denies it was a loan. 394 The spacing of the payments and the amounts is consistent with the payments being in respect of work performed by Mr Haider rather than a series of ad hoc loans made to a person, moreover a person whom Mr Usha claims he had no responsibility as an employer during this period. 395 Mr Usha's admits that subsequently to March 2017 he made initial payments to Mr Haider of $500 per week for his work. The subsequent payments of the same amount support drawing the inference that the payments made to Mr Haider between January 2017 and March 2017 were in fact payments for work undertaken by Mr Haider for Namitha Nakul, not loans made by Mr Usha to Mr Haider.

Cashback arrangements 396 There is no dispute that Mr Basi made payments to the respondent of about $510 on approximately a fortnightly basis from the time that regular fortnightly payments of $1,711.38 were made from the Namitha Nakul bank account to Mr Basi in purported compliance with the obligation in the Basi Employment Offer to pay Mr Basi an annual salary of $55,000. 397 The issue to be determined is whether those payments were made in repayment of loans that had been made by Mr Usha or his brother to Mr Basi, or whether they were made by Mr Basi pursuant to demands from Mr Usha in order to reduce his wages to $600 per week. 398 I am satisfied for the following reasons that the fortnightly cash payments of approximately $510 per week paid by Mr Basi to Mr Usha were made pursuant to a cashback arrangement imposed by Mr Usha on Mr Basi, ostensibly because the Restaurants were not generating sufficient revenue for him to be able to pay Mr Basi the amount specified in the Offer Letter. 399 First, for the reasons outlined above, I do not accept that Mr Usha or his brother made any loans to Mr Basi. The payments therefore cannot be characterised as repayments of loans. 400 Second, Mr Basi's evidence was that prior to the commencement of his work for the respondent, Mr Usha made it clear that he would pay Mr Basi only $600 per week (rather than the amount specified in the Basi Employment Offer) and would require him to pay back the additional amount once he started transferring the full amount into his bank account. Further, in late January or early February 2017, Mr Usha told him that he was going to start paying the full amount to Mr Basi and that Mr Basi had to take out $511 and pay it to him. 401 Mr Basi's evidence was that the amount he paid Mr Usha after he received his salary was $511, although on occasion when he did not have any coins it was only $510. 402 Mr Basi gave evidence that when he moved to the Nowra Restaurant, he was usually required to pay the money in advance of payment of his salary. 403 Mr Basi also gave evidence that on 7 March 2018, after Mr Basi told the respondent he didn't have the $510 to pay him, Mr Usha transferred only $1200 into his account. Mr Basi stated that Mr Usha did the same on 26 June 2018 after Mr Basi told the respondent he didn't have the $510 to pay him in advance. 404 Mr Basi gave the following evidence of a conversation that he states that he had with Mr Usha on 13 June 2018: [Mr Usha]: Do you know how much you are supposed to give me fortnightly? [Mr Basi]: $511. [Mr Usha]: $511.38. Right from the start, you never gave me that 38 cents and then you cut $1. Now you give me only $510. [Mr Basi]: I will give that, I forgot that. [Mr Usha]: You will forget that; you will forget the amount you need to pay but will remember exactly what you have to get (from me). You remember exactly the salary that you have to get. [Mr Usha]: No worries, it's ok. With the $1 you can buy bread and with 38 cents you can buy soap. Take shower with soap, eat bread and sleep. Is that what you are planning? [Mr Basi]: Yes, I am doing that. I am not eating anything on Mondays. Just one meal only. [Mr Usha]: Your life has become pathetic. [Mr Basi]: What should I do? Everyone needs money. Nobody cares whether I eat or not. [Mr Usha]: Who is asking money? Your parents? …. I have transferred the money. [M Basi]: Ok, thank you 405 When confronted with this conversation in the course of his cross-examination, Mr Usha gave the following evidence: And you - and so you said something back to him along these lines, "511, right from the start, you never gave me that." Sorry. "511.38. Right from the start, you never gave me that 38 cents and then you cut one dollar. Now you only give me 510." Do you remember saying that to him?---That's a - you know, a story - the situation is different. That's a funny situation, because he said, "Brother, I will give you $511 plus 38 cent." I said to - I - I feel, you know, funny, that's why I said to him, "Okay. You don't need - need to give 38 cents." You know, normally, so he don't talk like that, because he talk, "Okay, brothers, you know, I will do this this time, this time," but, at that day, he is different. You know, the change to different topic. So I feel, you know, that's a funny situation, I feel. So I said, you know, "The 38 cent, you can take it and one dollars, you can buy something, bread or something," that's I said, because, always, he's eating in the restaurant. He is taking, you know, food from restaurant. So I know he don't spend any money to, you know, purchasing groceries or, you know, the shoppings or - that I know. That's the reasons I said the funny things and, you know, I said that one, you know, "The $1, you can buy these from - 38. I don't need it," because what I mean - that, in Malayalam, I am not behind the money. That's the things I said to, you know, Midhun, because money comes, money go. That's the sentences I said, you know. 406 In substance, Mr Usha's initial response was to suggest that it had been a light hearted conversation and the tone made it clear that the complaint about the 38 cents was not to be taken seriously. 407 Mr Usha gave evidence that he believed the specific figure of $511.38 was first raised by Mr Basi: Because the - the conversations, you know, I never - in my mind, you know, I never, you know, say this cents - you know, the calculation. I never say it to them. That's why I have confidence that I never said that, but, you know, in that situation - particular situations, we - I don't exactly - I don't know exact, you know, what's the situation and everything. That's the reason, "I think". Because I'm sure, you know, he's the one said that - you know, the word, then I continued. 408 Irrespective of who might have first raised the issue or how light hearted the reference to bread might have been, the critical issue is that Mr Usha accepted that there had been a discussion about payments of $510.00 rather than $511.38. This is fundamentally inconsistent with Mr Usha's claims that the "loans" he made to Mr Basi were being paid back in instalments of $500 (that is, a round number). The significance of course of the figure of $511.38 or the less exact $510.00 is that is the figure, if deducted from the fortnightly payment of $1,711.38, would effectively give Mr Basi $600 per week. It is straining credulity to suggest that Mr Usha might otherwise have arrived at a repayment figure of $511.38 or $510 a fortnight as a regular "loan" repayment. 409 Mr Usha sought to explain away the discussion of a payment in excess of $500.00, bearing in mind that the discussion he admitted to having with Mr Basi was about a figure of $511.38, by giving the following implausible and opportunistic evidence in cross-examination: And you were saying in this conversation, weren't you, that you can't transfer his salary unless he pays you that 500-something?---No, no, no. Not like - no, I didn't mean anything like that. Well, the 500-something is a reference to 500 and a little bit more, isn't it?---500. Yes, "something" means, you know, that sometimes he take the, you know, food from there, so that money may be, you know, he know that. So I don't know that exact amount, so he calculate, and he give. But I am happy with, you know, the half payment or any payment, you know, for food. Food he took from the restaurant. So I am whatever is the money he paid, it's okay. I don't, you know, mind. 410 On balance, I accept Mr Basi's evidence concerning the cashback payments. It is consistent with the apparent logic of events and the facts capable of being objectively established, and it provides a plausible explanation for why Mr Basi would be making regular cash payments to Mr Usha. It had the practical effect of maintaining Mr Basi's wages at approximately $600 per week ($1,200 a fortnight), notwithstanding the fortnightly bank transfers of $1,711.38. Mr Usha did not advance any reason for the payments, other than repayments of the alleged loans, and given the financial position of Namitha Nakul, as reflected in its financial statements, it is readily apparent that Namitha Nakul had limited, if any, ability to meet the obligations in full that it had assumed in the Basi Employment Offer. Moreover, Mr Usha's evidence on the payments of $510.00 or $511.38 was not supported by any of the other witnesses relied upon by the respondents.

Did the requirement to make the cashback payment contravene ss 323 and 325 of the FW Act? 411 In Cheesecake Shop, the Court found that "cashback" arrangements constituted contraventions of ss 323 and 325 of the FW Act. In that case the employer unreasonably required the employee to make "cashback" payments in the amount of $700 per fortnight under threat of losing his employment and his employer discontinuing sponsorship of his application for a subclass 457 visa: Cheesecake Shop at [3] (Rares J). The employer required the employee to provide him with login, password and debit card details and transferred the cashback payments to himself before transferring the stipulated wages to the employee: Cheesecake Shop at [17] (Rares J). 412 Mr Basi contends he was entitled to be paid a great deal more than $55,000 per annum given the hours of work he performed, and that a contravention will be established if the Court is satisfied that: (a) the requirement for the payments reduced the effective salary to $600 per week; and (b) based on its findings as to his classification and the hours of work he performed he would have been entitled to be paid more than that (and for the reasons set out above, he was). 413 The respondents submit that a requirement to repay a loan to Mr Usha was not a contravention of ss 323 or 325 of the FW Act by Namitha Nakul and could not be a contravention by Mr Usha. 414 Mr Basi's evidence was that he made his first payment on 9 February 2017 (the day after being paid). 415 The respondents submit that Cheesecake Shop is otherwise not analogous to the current circumstances as, in these proceedings Mr Usha had entered into oral loan arrangements with each of Mr Basi and Mr Haider and any payments made to Mr Usha (or others) were paid pursuant to those loan agreements and were not otherwise related to Mr Basi and Mr Haider's employment. The respondents deny ever requiring Mr Basi to make "cashback" payments. The respondents say that, on occasions when Mr Basi paid more than $500, any additional monies paid were reimbursement for the purchase of food. 416 The respondents accept, however, that if the Court finds the payments were made in response to a "cashback" demand, such payments would contravene s 323 of the FW Act. 417 For the reasons outlined above, I have concluded that the payments made by Mr Basi to Mr Usha were made pursuant to cashback demands and I am thereby satisfied that in those circumstances Namitha Nakul has contravened ss 323 and 325 of the FW Act in the period between 8 February 2017 and July 2018, by requiring Mr Basi to make regular fortnightly payments out of his wages to Namitha Nakul, and Mr Usha contravened ss 323 and 325 of the FW Act by being involved in those contraventions by Namitha Nakul.

Were any contraventions "serious contraventions"? 418 The applicants contend that the Namitha Nakul Award Contraventions with respect to s 45 of the FW Act and Mr Usha's involvement in those contraventions were contraventions that constituted "serious contraventions" for the purposes of s 557A of the FW Act. 419 The applicants also contend that the contraventions by Namitha Nakul of s 323 of the FW Act and Mr Usha's involvement in those contraventions, by reason of the cashback arrangements with Mr Basi and the underpayments of wages to them, were contraventions that constituted "serious contraventions" for the purposes of s 557A of the FW Act. 420 Section 557A(1) of the FW Act provides that a contravention of a civil remedy provision by a person is a serious contravention if the person knowingly contravened the provision and the conduct was part of a systemic pattern of conduct relating to one or more other persons. 421 Section 557A(2) of the FW Act provides that in determining whether the person's conduct constituting the contravention was part of a systematic pattern of conduct, a court may have regard to: the number of contraventions; the period over which the relevant contraventions occurred; the number of other persons affected; the person's response; and whether the person also contravened ss 535 (records) and 536 (payslips) of the FW Act. According to s 557A(3) of the FW Act, a Court is not limited to considering only the matters in s 557A(2). 422 Section 557A(5A) of the FW Act provides that a person is involved in a serious contravention of another person (the principal) only if the principal's contravention was a serious contravention and the involved person knew that the principal's contravention was a serious contravention. 423 Section 557A has not been the subject of detailed consideration by the Federal Court: see Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848 at [54] (Anderson J); Fair Work Ombudsman v IE Enterprises Pty Ltd & Anor [2019] FCCA 2952 at [5] and [31] (O'Sullivan J); however, see Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848 at [28] (Rares J). 424 The respondents accept that the Court's determination in relation to this issue (especially the number of contraventions) will be impacted by the findings of fact in relation to the preceding issues, however, in relation to some of the factors raised by s 557A(2) of the FW Act, the respondents make the following submissions: (a) Mr Usha sought to engage with Mr Basi's claim as soon as it was brought to his attention and immediately rectified the underpayment of Mr Basi's annual leave; (b) the respondents admitted to contraventions described above at the earliest opportunity; (c) the contraventions occurred over a period of 18 months; (d) on the respondents' case, no overtime hours were worked by Mr Basi or Mr Haider and therefore those records were not required to be kept; and (e) Mr Usha was a demonstrably inexperienced operator and relied heavily on the advice and assistance provided by his migration agent and his taxation agent. 425 I accept that the matters raised by the respondents may be relevant to penalty but I am not satisfied that they are of sufficient weight, either individually or collectively, to preclude a finding that the respondents' contraventions of s 323 of the Act were serious contraventions for the purposes of s 557A(1) of the FW Act. 426 I am satisfied that having regard to the matters identified in s 557A(2) of the FW Act, the respondents knowingly contravened s 323 of the FW Act, being a civil remedy provision of the FW Act, and the conduct of the respondents was part of a systematic pattern of conduct relating to one or more persons, being both Mr Basi and Mr Haider. 427 I have found that there were multiple contraventions concerning the underpayment of both applicants over a period of some two years. Mr Usha denied their complaints repeatedly, sought to have Mr Haider provide backdated timesheets and make a statement containing incorrect representations and made fallacious claims about loans to attempt to cover up and avoid the consequences of the contraventions. Further, the respondents failed to keep records relating to the conduct that gave rise to the contraventions. 428 For these reasons, I am satisfied that Namitha Nakul committed serious contraventions, within the meaning of s 557A of the FW Act, of s 45 of the FW Act by reason of the Namitha Nakul Award Contraventions, and of s 323 of the FW Act by failing to pay to Mr Basi and Mr Haider the wages due and payable to them under the Award, including with respect to Mr Basi by reason of the cashback arrangements, and that Mr Usha committed serious contraventions of s 557A of the FW Act by being involved in those serious contraventions of s 45 and s 323 of the FW Act committed by Namitha Nakul.

Introduction 429 The applicants contend that Mr Usha made various threats to them to take adverse action against them to coerce them not to insist that they be entitled to retain the wages paid to them, contrary to s 343 of the FW Act, and exerted undue influence or undue pressure to secure their agreement to pay amounts to Mr Usha, contrary to s 344 of the FW Act. 430 The alleged threats were made to Mr Basi in connection with the cashback payments and payments to cover Namitha Nakul's PAYG tax obligations and to Mr Haider in connection with a payment to cover Namitha Nakul's costs of its sponsorship of his subclass 457 visa. 431 The applicants also contend that some of the threats made by Mr Usha also constituted misrepresentations for the purposes of s 345 of the FW Act.

Relevant statutory provisions and principles 432 Section 343 of the FW Act provides: 343 Coercion (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. Note: This subsection is a civil remedy provision (see Part 4-1). (2) Subsection (1) does not apply to protected industrial action. 433 Coercion requires the satisfaction of two elements, first, an intent to negate the exercise of choice, and second, the use of unlawful, or illegitimate or unconscionable means, determined objectively: Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; [2016] FCAFC 72 (Buchanan J at [174]-[176] and [194], Siopis J agreeing at [1]). Although the matter went on to the High Court and the appeal was successful in part, these parts of the Full Court's decision were not disturbed. 434 So far as s 343 is directed towards conduct taken for a particular reason, ss 360 and 361 are relevant. 435 First, the prohibited intent need form only a part of the reasons for the conduct. Section 360 of the FW Act provides: For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 436 Second, the alleged contravenor bears the burden on the question of the prohibited intent. Section 361 of the FW Act provides: (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 437 Taken together, those two sections operate to mean that a person who is alleged to have contravened s 343 must persuade the Court that an intent to coerce the other person as to their workplace rights was not amongst their reasons for the action. 438 Section 344 provides: 344 Undue influence or pressure An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to: (a) make, or not make, an agreement or arrangement under the National Employment Standards; or (b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or (c) agree to, or terminate, an individual flexibility arrangement; or (d) accept a guarantee of annual earnings; or (e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)). 439 "Adverse action" includes dismissal (s 342, Item 1(a)) or an alteration of the position of an employee to their prejudice (s 342, Item 1(c)). The term also comprehends threats to take adverse action. 440 Coercion demands a high degree of compulsion negating choice. There is a significant difference in ordinary meaning between concepts such as influence, persuasion, inducement and the like, on the one hand, and coercion, on the other: National Tertiary Education Industry Union v Commonwealth of Australia and Another (2002) 117 FCR 114; [2002] FCA 441 (National Tertiary Education) at [99] and [103] (Weinberg J). It is generally embodied by the threat to take away something possessed or an advantage that would otherwise be obtained: Ellis v Barker (1871) 40 LJ Ch 603 (Romilly MR); National Tertiary Education at [104]. 441 In Auimatagi and Another v Australian Building and Construction Commissioner (2018) 267 FCR 268; [2018] FCAFC 191, Allsop CJ, Collier and Rangiah JJ provided examples at [161] of conduct which has been found to be illegitimate, including making threats to put a company out of business. 442 Section 345 provides: 345 Misrepresentations (1) A person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a workplace right by another person. Note: This subsection is a civil remedy provision (see Part 4-1). (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. 443 Section 793 of the FW Act is directed at the liability of a body corporate for conduct of officers and employees. It relevantly provides that: (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official; is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

Cashback arrangements 444 Mr Basi gave evidence that Mr Usha said to him on many occasions words to the effect of: (a) "I can shut down the restaurant so that you can lose your job"; (b) "You could lose your job at any time if you don't obey me"; and (c) "You would be the loser and I won't lose anything. I already have Australian citizenship and business and I don't need you to run the business. All of my family is in Australia." 445 Mr Usha denies making such threats, giving evidence that: Sometimes, I said the - not the story like that. The story is business is not good. If it's a lot of place, you know, the business is not good that times of day, I worried the workers. But in this case, you know, I can't worry because the immigration - a lot of things there. So I can't, you know, worried him. So ..... the stages for, you know, they close the restaurant and, you know, not doing the business sometimes the business is not good; that's the reasons that I said. 446 Mr Usha gave evidence of disciplinary conversations with Mr Basi. The respondents submit that such disciplinary action was well within Mr Usha's rights as an employer. 447 The respondents further submit that Mr Usha's statements were not a threat to put Namitha Nakul out of business and influence a workplace right, but a statement of the reality of an underperforming business which was consistently trading at a loss. 448 The respondents submit that Mr Basi is travelled, well-educated, holds a Master's in business management, and admitted in cross-examination that not only had he completed a course in human resources management but was also aware of his entitlements including to leave breaks, breaks for meals and annual leave while working for Namitha Nakul. 449 The respondents submit that it must follow that Mr Basi understood: (a) his visa was not conditioned upon employment with Namitha Nakul and he was able to transfer his visa, as he had previously done with Chellapas Pty Ltd, to a new sponsor; (b) his visa could not be cancelled by Namitha Nakul; (c) he should keep a diary of days and hours worked; (d) he had minimum workplace entitlements; and (e) he had protections at work and was entitled to ask the Fair Work Ombudsman about his pay and conditions. 450 The respondents' submissions fail to grapple with the vulnerable status of Mr Basi. He had lost his original sponsorship for his subclass 457 visa in Western Australia and was now dependent on Mr Usha, and given his current visa status he would not be able to obtain alternative employment unless an employer was prepared to sponsor his visa. Further, given the terms of the Basi Employment Offer and the prospect of an improvement in the financial position of Namitha Nakul by reason of the opening of the Nowra Restaurant, it is plausible that Mr Basi might not have sought to pursue his workplace rights for some time. Of course, this deferral was finite and Mr Basi subsequently did indeed seek to pursue his workplace rights, as demonstrated by the letters of demand written on his behalf by the South Coast Labour Council and the commencement of these proceedings. It is important not to allow hindsight bias to influence unduly an assessment of the plausibility of a particular state of affairs, in particular in the context of an alleged failure to pursue legal rights at an earlier time. 451 Moreover the content of the alleged "disciplinary conversation" is telling. In the course of those conversations Mr Usha gives evidence that he stated to Mr Basi: (a) on at least two occasions in April 2017 that: Midhun, I am going to close the Nowra shop because of your attitude. There is not much business. And too much food is being wasted. (b) in the course of a telephone call in July 2017 in which Mr Basi admitted that he had deliberately wasted food in the Nowra Restaurant because he was angry with Mr Usha: Next time, if you do like that, I will give notice to the immigration agent to cancel the 457 sponsorship. You would need to find a new employer/sponsor. 452 The attempt to explain away admissions that statements were made by Mr Usha to the effect that he would close the Nowra Restaurant and that he would give notice to an immigration agent to cancel Mr Basi's "457 sponsorship" as "disciplinary conversations" is not persuasive in the absence of any independent corroboration of Mr Usha's characterisation of the context in which they were made. Further, even if statements to this effect were made strictly in the course of "disciplinary conversations", this does not preclude and rather supports Mr Basi's evidence that they were made from time to time in the course of his employment and would have been very much at the forefront of Mr Basi's mind when faced with the ongoing cashback requirements from Mr Usha. In any event, the issuing of "disciplinary warnings" in the nature of an "adverse performance assessment" may constitute adverse action for the purposes of s 340(1) of the FW Act, as it has the effect of altering the employee's positon to his or her prejudice: see Sabapathy v Jetstar Airways and Others (2021) 283 FCR 348; [2021] FCAFC 25 at [54]-[63] (Logan and Katzmann JJ) citing, at [63], the following statement of principle in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531 at [95] (Branson J): Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee's employment. In a sense, written warnings under the respondent's disciplinary procedures may be regarded as analogous to the receipt of driving demerit points. It seems to me that few holders of driving licences would doubt that the advantage enjoyed by them in holding driving licences is adversely affected by the accumulation of demerit points close to, but less than, the number required to trigger cancellation of their licences. 453 I am satisfied that statements were made by Mr Usha to Mr Basi that he would "lose his job" or "lose everything", and that they were threats of dismissal, or threats to alter his position to his prejudice and were designed to make Mr Basi compliant with the work arrangements Mr Usha had instituted, which involved him foregoing his "workplace rights", namely his award entitlements, contrary to s 343 of the FW Act. I am not persuaded that the respondents have established that an intent to coerce Mr Basi not to exercise his workplace rights was not amongst the reasons for the threats made by Mr Usha to Mr Basi. 454 I am also satisfied that the statements also involved the application of undue influence or undue pressure on Mr Basi for him to accept Mr Usha effectively deducting monies from his salary, contrary to s 344 of the FW Act. In context, the pressure that was applied by Mr Usha was excessive and disproportionate. The statements about Mr Basi losing his job are exacerbated by Mr Usha's statements comparing his own migration status with Mr Basi's. Mr Usha, having had a student visa and then a subclass 457 visa, would be acutely aware of the implications of loss of a sponsored position. 455 For these reasons, I am satisfied that Namitha Nakul contravened ss 343 and 344 of the FW Act by requiring Mr Basi to make payments out of his wages to Namitha Nakul and that Mr Usha contravened ss 343 and 344 of the FW Act by being involved in the contraventions of ss 343 and 344 committed by Namitha Nakul.

August 2017 Basi Payment 456 On or about 7 August 2017, Mr Basi made a cash payment of $4,200 to Mr Usha (August 2017 Basi Payment). 457 The applicants submit the payment was made by Mr Basi in response to a demand from Mr Usha that Mr Basi cover the PAYG liability of Namitha Nakul for Mr Basi. 458 The respondents deny ever requiring Mr Basi to Mr Usha to defray any PAYG tax payable on Mr Basi's wages. 459 Mr Usha gives evidence that the August 2017 Basi Payment was a partial repayment of the loan from Mr Usha's brother, Harisankar, and subsequent instalment payments of $500 per fortnight made thereafter were in satisfaction of the balance. 460 Mr Basi gave evidence that in or about May 2017, Mr Usha said to him: You have to pay me [an amount which was about six thousand dollars] when you come back from your holidays to pay me back because I have to pay your tax. 461 Mr Basi gave evidence that on or about 24 July 2017, after he had returned from holidays in India, that he asked Mr Usha to pay his wages of approximately $1,711 that had been due, but had not been paid, on 27 June 2017 but was told by him: I paid it towards the tax bill. You still have to pay me the rest of that bill. 462 Mr Basi also gave evidence that at the time he paid the amount of approximately $4,200 in cash to Mr Usha on or about 7 August 2017, Mr Usha said to him: If you don't pay, it could affect your permanent residency. 463 I accept this evidence of Mr Basi concerning the circumstances in which he made the August 2017 Basi Payment to Mr Usha. 464 As explained above, I do not accept that Harisankar advanced any money to Mr Basi and therefore the August 2017 Basi Payment could not have been a partial repayment of that loan. In the absence of any other explanation from Mr Usha and the poor financial position of Namitha Nakul, I accept Mr Basi's evidence that Mr Usha demanded the payment from Mr Basi to pay for Namitha Nakul's PAYG tax liabilities. 465 It is improbable that Mr Basi would have willingly paid money back to his employer to meet his employer's tax obligations in the absence of some form of threat of adverse action. The Basi payslips made plain that he was being paid fortnightly after tax wages referrable to the stipulated salary of $55,000 in the Basi Employment Offer. It is implausible, given Mr Basi's proficiency in English and his tertiary education qualifications, that he did not understand that tax had already been deducted and retained by Namitha Nakul before he was paid his fortnightly wages during this period by bank transfer. 466 The threat made by Mr Usha at the time of making the demand for the payment to meet Namitha Nakul's tax obligations constituted a threat to take adverse action, namely action that could affect his permanent residency in this country and thus alter Mr Basi's position to his prejudice. 467 In context, I am satisfied that it was a threat that was made to ensure that Mr Basi complied with the demand for payment. The demand for payment was a demand that Mr Basi not exercise his workplace rights by retaining the wages paid to him, or insisting on his entitlement to those wages. The action was thus in contravention of s 343 of the FW Act. I am not persuaded that the respondents have established that an intent to coerce Mr Basi not to exercise his workplace rights was not amongst the reasons for the threats made by Mr Usha to Mr Basi. 468 The representation that Mr Basi was required to pay the PAYG tax on his salary was a misrepresentation about his workplace rights. In effect, it was a misrepresentation that he was not entitled to retain all of the wages paid to him because he was under an obligation to return a proportion of them to his employer, when demanded, to meet the tax obligations of his employer. There is no such obligation. I am satisfied that it was a false and misleading representation with respect to Mr Basi's workplace rights contrary to s 345 of the FW Act 469 For these reasons, I am satisfied that Mr Usha contravened ss 343 and 345 of the FW Act by demanding between May and August 2017 that Mr Basi pay Namitha Nakul the sum of approximately $6,000 to defray its PAYG tax liability in respect of Mr Basi (First Usha PAYG Demand Contraventions). 470 I am also satisfied that by reason of s 793(1) of the FW Act, Namitha Nakul also contravened ss 343 and 345 of the FW Act because of the First Usha PAYG Demand Contraventions.

January 2018 Basi Payment 471 The applicants contend that Mr Basi made a payment of $1,710 in cash to Mr Usha in January 2018 (January 2018 Basi Payment). I note that in their submissions the parties referred to this alleged payment as the "December 2017 Basi Payment". 472 The applicants submit that the January 2018 Basi Payment was made in response to a demand from Mr Usha for a payment from Mr Basi to defray PAYG tax payable on his salary in contravention of ss 325, 343 and 345 of the FW Act. 473 Mr Basi gave evidence that Mr Usha made a demand on Monday, 27 November 2017 for a contribution towards Mr Basi's PAYG tax liability. He states that at the time the demand was made Mr Usha told him: You better do something or else, it will be problem. You think about it. 474 Mr Usha gave the following evidence when he was confronted with this this alleged demand in the course of his cross-examination: And at the end of November he made a call to you and you said you had received a letter about paying the tax, and he had to give you the tax money. That's right, isn't it?---No, no, that's not right. That situation - the story is different. They changed the story. You know, one time, you know, I ask, you know, "Where is the repayment?", and he said a lot of the excuse. I said, you know, "I take the money from the company. I have to put it back to the company. You know, the company have to - you know, the - a lot of things to do. Pay the bills and the tax and, you know, a lot of things to do. So, you know, give that money when you can give that money". That's the things I ask. The story totally different. 475 Mr Basi states that he withdrew $1,710 from his bank account on 31 January 2018 and gave it to Mr Sulatha for him to pass on to Mr Usha to pay Namitha Nakul's PAYG tax liability. 476 Mr Usha denies receiving any money from Mr Basi as a payment towards Namitha Nakul's PAYG liability. Mr Usha contends any money paid to him by Mr Basi was a repayment of the loans that he had made to Mr Basi. 477 I am satisfied that Mr Usha made the demand that Mr Basi make a contribution towards his PAYG tax liability. As explained above, I do not accept that Mr Usha made any loans to Mr Basi and Mr Usha acknowledged in cross-examination that he had drawn a link in a conversation with Mr Basi between the payment requested and the tax obligations of Namitha Nakul. 478 For the reasons set out above, the representation that Mr Basi was obligated to pay the respondent the PAYG tax on his salary was a misrepresentation about his workplace rights, contrary to s 345 of the FW Act. 479 Given the "You'd better do something or else, it will be a problem" threat, in the context of the earlier threats made by Mr Usha, that demand amounted to a threat to Mr Basi's employment. The threats made by Mr Usha constituted a threat to take adverse action. The threats by Mr Usha were either of dismissal, or that he would take action to alter Mr Basi's position to his prejudice. 480 I am satisfied that the threats were made to ensure that Mr Basi complied with the demand for payment. The demand for payment was a demand that Mr Basi not exercise his workplace rights by retaining the wages paid to him, or insisting on his entitlement to those wages. I am satisfied that the demand thereby was made in contravention s 343 of the FW Act. I am not persuaded that the respondents have established that an intent to coerce Mr Basi not to exercise his workplace rights was not amongst the reasons for the demand made by Mr Usha to Mr Basi. 481 I am also satisfied that the demand was an unreasonable requirement by Namitha Nakul, as his employer, that Mr Basi spend money, contrary to s 325 of the FW Act. 482 I note that the respondents accept that if the Court finds there was a payment made by Mr Basi to the respondents in January 2018, and that the payment was for the purposes of contributing to Mr Basi's PAYG tax obligation, such a payment or requirement to spend money was contrary to s 325 of the FW Act. 483 For these reasons, I am satisfied that Mr Usha contravened ss 325, 343 and 345 of the FW Act by demanding in December 2017 and January 2018 that Mr Basi pay Namitha Nakul the sum of $1,710 to defray its PAYG tax liability in respect of Mr Basi (Second Usha PAYG Demand Contraventions). 484 I am also satisfied that by reason of s 793(1) of the FW Act, Namitha Nakul also contravened ss 325, 343 and 345 of the FW Act because of the Second Usha PAYG Demand Contraventions.

September 2017 Haider Payment 485 The applicants contend that Mr Haider made a payment of $1,400 to Mr Usha in September 2017 in response to a demand by Mr Usha that Mr Haider make a payment towards the cost of Namitha Nakul's sponsorship of his subclass 457 visa (September 2017 Haider Payment). They submit that sponsorship of a skilled employee provides a benefit to an employer and a demand that an employee defray the employer's costs of the nomination is an unreasonable demand, contrary to s 325 of the FW Act. 486 The respondents deny that Mr Haider made the September 2017 Haider Payment to Mr Usha. The respondents accept that if the Court finds there was a payment made by Mr Haider to the respondents in September 2017 and the payment was for the purpose of defraying Namitha Nakul's sponsorship costs, such a payment or requirement to spend money would be contrary to s 325 of the FW Act. 487 Mr Haider gave evidence that in September 2017, Mr Usha demanded that he pay $1,400 towards the cost of Namitha Nakul making an application for a subclass 457 visa that would be sponsored by Namitha Nakul, and at the time of making the demand Mr Usha told him that unless Mr Haider paid him that amount he would not submit the application. Mr Haider stated that in response to this demand from Mr Usha he gave Mr Usha $1,400 in cash at the Wollongong Restaurant. 488 Mr Usha gave evidence that he did receive payments from Mr Haider in the form of repayments of loans that he had made to him but denied that he ever received any payments from Mr Haider in relation to Namitha Nakul's "migration expenses". 489 I accept Mr Haider's evidence concerning the September 2017 Haider Payment for the following reasons. 490 First, Mr Haider was challenged on his evidence about the September 2017 Haider Payment. He did not resile from that evidence in the course of his cross-examination. His evidence in the following exchange was given forthrightly and without hesitation: I put it to you that Mr Usha never demanded a sum of $1400 from you as payment towards his sponsorship costs?---No. That's not true. He asked me. He asked you and you say you paid it?---Yes. He asked me. I couldn't have any other option. Yes. Now, I say that's not true. You didn't pay it and he didn't ask?---No. He asked and I paid. And I say that Mr Usha never threatened to cancel your visa?---No. That's not true. 491 Second, Mr Usha was cross-examined regarding this issue and acknowledged that Namitha Nakul paid a sponsorship application fee of about $1,400 or $1,500 but maintained that he never required Mr Haider to reimburse him for that fee. The acknowledgment of the payment of an equivalent amount as a sponsorship fee to that claimed to have been paid to him by Mr Haider is significant. 492 Third, I do not accept, as explained above, that Mr Usha made any loans to Mr Haider. Mr Usha advances no other explanation for any payments that he may have received from Mr Haider. 493 Fourth, Mr Haider's evidence about this matter is consistent with that of Mr Basi about the demands made of him for the cashback payments, and for money to meet Namitha Nakul's PAYG tax obligations. 494 For these reasons, I am satisfied that Namitha Nakul contravened s 325 of the FW Act by demanding that Mr Haider pay the amount of $1,400 in respect of its sponsorship of Mr Haider's sub-class 457 visa (Namitha Nakul Sponsorship Contravention). 495 I am also satisfied that Mr Usha was knowingly concerned in the Namitha Nakul Sponsorship Contravention and thereby contravened s 325 of the FW Act.

Disposition 496 There should be judgment for each of Mr Basi and Mr Haider against the respondents for the full amount of the underpayment under the Award of their wages plus tax. 497 The amount of the judgment for Mr Basi is to be calculated as the difference between, on the one hand, the wages that would have been payable to him on the basis that he was employed full time by Namitha Nakul from Tuesday to Sunday, for 38 hours a week as a Cook Grade 4 at the Wollongong Restaurant from 19 July 2016 to 31 March 2017 and a Cook Grade 5 at the Nowra Restaurant from 1 April 2017 to 27 August 2018 with weekend penalty rates to be paid on the basis that he worked six hours on each of Saturday and Sunday, and on the other hand, the amount he received from Namitha Nakul of $76,417.78 less the cashback payments, the August 2017 Basi Payment and the January 2018 Basi Payment. 498 The amount of the judgment for Mr Haider is to be calculated as the difference between, on the one hand, the wages that would have been payable to him on the basis that he was employed full time by Namitha Nakul from Tuesday to Sunday, for 38 hours a week as a Cook Grade 4 at the Restaurants from 31 October 2016 to 14 August 2018 with weekend penalty rates to be paid on the basis that he worked six hours on each of Saturday and Sunday, and on the other hand, the amount he received from Namitha Nakul of $29,980 less the September 2017 Haider Payment of $1,400. 499 In addition, there should be judgment for Mr Haider on a quantum meruit basis for the wages that would have been payable to him on the basis that he was employed by Namitha Nakul for 30 hours per week at the National Minimum Wage in the period between 10 July 2016 and 30 October 2016. 500 The parties will need to bring in calculations of the specific sums together with interest to enable me to make final orders to give effect to these reasons. 501 I will give the parties an opportunity to lead any further evidence and make submissions on the applicants' claims for the imposition of pecuniary penalties and on costs in the light of these reasons for judgment. I certify that the preceding five hundred and one (501) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.