Fair Work Ombudsman v Al Hilfi

Introduction 1 The applicant seeks orders against the second and third respondents to two proceedings before the Court. In SAD 27 of 2012, the applicant is the Fair Work Ombudsman ("FWO"), and the respondents are Ahmad Hamid Mohammed Al Hilfi, Nidal Albarouki, and Clency Ferriere ("the Al Hilfi proceeding"). Coles Supermarkets Australia Pty Ltd ("Coles Supermarkets") was the fourth respondent to the proceeding, but as between the FWO and that respondent the proceeding has been resolved. In SAD 109 of 2012, the parties are the same except that Mr Ayam Rahmah Al Basry is the first respondent ("the Al Basry proceeding"). Again, Coles Supermarkets was the fourth respondent, but the proceeding as between the FWO and that respondent has been resolved. The two proceedings were dealt with together at various interlocutory hearings, and both were listed for trial to commence on 7 October 2014. The two proceedings raise similar issues. 2 For the purposes of the reasons which follow, I can concentrate on one of the proceedings because my reasons and conclusions apply equally to both of them. In the reasons which follow, I refer to the Al Hilfi proceeding. 3 In broad terms, the FWO claims that Mr Al Hilfi employed various persons to collect supermarket trolleys. FWO claims that, in connection with that employment, Mr Al Hilfi contravened various sections of the Fair Work Act 2009 (Cth) ("the Act"). Mr Al Hilfi is alleged by the FWO to have been the principal contravener. The second, third and (until the proceeding was resolved against it) the fourth respondent were alleged to have been accessories or secondary contraveners in relation to the contraventions by Mr Al Hilfi. To be an accessory or secondary contravener, a person needs to be involved in the contravention within the terms of s 550 of the Act. 4 The proceeding between the FWO and Mr Al Hilfi has been resolved. I have made the following declarations against Mr Al Hilfi: Employment of Bhupinder Singh 1. During the period from 1 January 2010 to 30 July 2011, Ahmad Hamid Mohammed Al Hilfi (Al Hilfi) contravened section 45 of the Fair Work Act 2009 (Cth) (Fair Work Act) by failing to pay Bhupinder Singh: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the Cleaning Services Award 2010 (Modern Award); (b) shiftwork penalty rates pursuant to clause 27.1 of the Modern Award; (c) weekend penalty rates pursuant to clause 27.2 of the Modern Award; (d) penalty rates on public holidays pursuant to clause 27.3 of the Modern Award; and (e) overtime rates pursuant to clause 28 of the Modern Award. 2. During the period from 1 January 2010 to 30 July 2011, Al Hilfi contravened: (a) section 45 of the Fair Work Act by failing to make superannuation contributions on behalf of Bhupinder Singh pursuant to clause 23.2 of the Modern Award; (b) sub-section 44(1) of the Fair Work Act by failing to pay Bhupinder Singh annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the Modern Award; (c) sub-section 536(1) of the Fair Work Act by failing to provide Bhupinder Singh with pay slips; and (d) sub-section 535(1) of the Fair Work Act by failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 (Regulations) in relation to Bhupinder Singh. Employment of Gurpreet Sekhon 3. During the period from 1 January 2010 to 15 April 2010, Al Hilfi contravened section 45 of the Fair Work Act by failing to pay Gurpreet Sekhon: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the Modern Award; (b) shiftwork penalty rates pursuant to clause 27.1 of the Modern Award; (c) weekend penalty rates pursuant to clause 27.2 of the Modern Award; (d) penalty rates on public holidays pursuant to clause 27.3 of the Modern Award; and (e) overtime rates pursuant to clause 28 of the Modern Award. 4. During the period from 1 January 2010 to 15 April 2010, Al Hilfi contravened: (a) section 45 of the Fair Work Act by failing to make superannuation contributions on behalf of Gurpreet Sekhon pursuant to clause 23.2 of the Modern Award; (b) sub-section 44(1) of the Fair Work Act by failing to pay Gurpreet Sekhon annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the Modern Award; (c) sub-section 536(1) of the Fair Work Act by failing to provide Gurpreet Sekhon with pay slips; and (d) sub-section 535(1) of the Fair Work Act by failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to Gurpreet Sekhon. Employment of Ramnik Singh 5. During the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, Al Hilfi contravened section 45 of the Fair Work Act by failing to pay Ramnik Singh: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the Modern Award; (b) a part time loading pursuant to clause 12.4(b) of the Modern Award; (c) shiftwork penalty rates pursuant to clause 27.1 of the Modern Award; (d) weekend penalty rates pursuant to clause 27.2 of the Modern Award; (e) penalty rates on public holidays pursuant to clause 27.3 of the Modern Award; and (f) overtime rates pursuant to clause 28 of the Modern Award. 6. During the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, Al Hilfi contravened: (a) section 45 of the Fair Work Act by failing to make superannuation contributions on behalf of Ramnik Singh pursuant to clause 23.2 of the Modern Award; (b) sub-section 44(1) of the Fair Work Act by failing to pay Ramnik Singh annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the Modern Award; (c) sub-section 536(1) of the Fair Work Act by failing to provide Ramnik Singh with pay slips; and (d) sub-section 535(1) of the Fair Work Act by failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to Ramnik Singh. Employment of Bhola Singh 7. During the period from 18 June 2010 to 14 July 2010, Al Hilfi contravened section 45 of the Fair Work Act by failing to pay Bhola Singh: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the Modern Award; (b) a part time loading pursuant to clause 12.4(b) of the Modern Award; (c) shiftwork penalty rates pursuant to clause 27.1 of the Modern Award; (d) weekend penalty rates pursuant to clause 27.2 of the Modern Award; (e) penalty rates on public holidays pursuant to clause 27.3 of the Modern Award; and (f) overtime rates pursuant to clause 28 of the Modern Award. 8. During the period from 18 June 2010 to 14 July 2010, Al Hilfi contravened: (a) section 45 of the Fair Work Act by failing to make superannuation contributions on behalf of Bhola Singh pursuant to clause 23.2 of the Modern Award; (b) sub-section 44(1) of the Fair Work Act by failing to pay Bhola Singh annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the Modern Award; (c) sub-section 536(1) of the Fair Work Act by failing to provide Bhola Singh with pay slips; and (d) sub-section 535(1) of the Fair Work Act by failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to Bhola Singh. 5 The FWO did not press a claim for pecuniary penalties or other orders against Mr Al Hilfi. 6 Neither the second or third respondents appeared on the first day of trial. The FWO seeks a default judgment against each of them under rr 5.22 and 5.23 of the Federal Court Rules 2011 (Cth) ("the Rules"). The relief she seeks is declarations of contraventions of the Act. By way of example, the following are the declarations sought against the second respondent: Employment of Bhupinder Singh 1. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr Nidal Albarouki (second respondent), during the period from 1 January 2010 to 30 July 2011, contravened section 45 of the Fair Work Act 2009 (Cth) (Fair Work Act) by Mr Ahmad Hamid Mohammed Al Hilfi (Al Hilfi) failing to pay Bhupinder Singh: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the Cleaning Services Award 2010 (Modern Award); (b) shiftwork penalty rates pursuant to clause 27.1 of the Modern Award; (c) weekend penalty rates pursuant to clause 27.2 of the Modern Award; (d) penalty rates on public holidays pursuant to clause 27.3 of the Modern Award; and (e) overtime rates pursuant to clause 28 of the Modern Award. 2. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr Nidal Albarouki (second respondent), during the period from 1 January 2010 to 30 July 2011, contravened: (a) section 45 of the Fair Work Act by Al Hilfi failing to make superannuation contributions on behalf of Bhupinder Singh pursuant to clause 23.2 of the Modern Award; (b) sub-section 44(1) of the Fair Work Act by Al Hilfi failing to pay Bhupinder Singh annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the Modern Award; (c) sub-section 536(1) of the Fair Work Act by Al Hilfi failing to provide Bhupinder Singh with pay slips; and (d) sub-section 535(1) of the Fair Work Act by Al Hilfi failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 (Regulations) in relation to Bhupinder Singh. Employment of Gurpreet Sekhon 3. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr Nidal Albarouki (second respondent), during the period from 1 January 2010 to 15 April 2010, contravened section 45 of the Fair Work Act by Al Hilfi failing to pay Gurpreet Sekhon: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the Modern Award; (b) shiftwork penalty rates pursuant to clause 27.1 of the Modern Award; (c) weekend penalty rates pursuant to clause 27.2 of the Modern Award; (d) penalty rates on public holidays pursuant to clause 27.3 of the Modern Award; and (e) overtime rates pursuant to clause 28 of the Modern Award. 4. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr Nidal Albarouki (second respondent), during the period from 1 January 2010 to 15 April 2010, contravened: (a) section 45 of the Fair Work Act by Al Hilfi failing to make superannuation contributions on behalf of Gurpreet Sekhon pursuant to clause 23.2 of the Modern Award; (b) sub-section 44(1) of the Fair Work Act by Al Hilfi failing to pay Gurpreet Sekhon annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the Modern Award; (c) sub-section 536(1) of the Fair Work Act by Al Hilfi failing to provide Gurpreet Sekhon with pay slips; and (d) sub-section 535(1) of the Fair Work Act by Al Hilfi failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to Gurpreet Sekhon. Employment of Ramnik Singh 5. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr Nidal Albarouki (second respondent), during the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, contravened section 45 of the Fair Work Act by Al Hilfi failing to pay Ramnik Singh: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the Modern Award; (b) a part time loading pursuant to clause 12.4(b) of the Modern Award; (c) shiftwork penalty rates pursuant to clause 27.1 of the Modern Award; (d) weekend penalty rates pursuant to clause 27.2 of the Modern Award; (e) penalty rates on public holidays pursuant to clause 27.3 of the Modern Award; and (f) overtime rates pursuant to clause 28 of the Modern Award. 6. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr Nidal Albarouki (second respondent), during the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, contravened: (a) section 45 of the Fair Work Act by Al Hilfi failing to make superannuation contributions on behalf of Ramnik Singh pursuant to clause 23.2 of the Modern Award; (b) sub-section 44(1) of the Fair Work Act by Al Hilfi failing to pay Ramnik Singh annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the Modern Award; (c) sub-section 536(1) of the Fair Work Act by [sic Al Hilfi] failing to provide Ramnik Singh with pay slips; and (d) sub-section 535(1) of the Fair Work Act by Al Hilfi failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to Ramnik Singh. Employment of Bhola Singh 7. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr Nidal Albarouki (second respondent), during the period from 18 June 2010 to 14 July 2010, contravened section 45 of the Fair Work Act by Al Hilfi failing to pay Bhola Singh: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the Modern Award; (b) a part time loading pursuant to clause 12.4(b) of the Modern Award; (c) shiftwork penalty rates pursuant to clause 27.1 of the Modern Award; (d) weekend penalty rates pursuant to clause 27.2 of the Modern Award; (e) penalty rates on public holidays pursuant to clause 27.3 of the Modern Award; and (f) overtime rates pursuant to clause 28 of the Modern Award. 8. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr Nidal Albarouki (second respondent), during the period from 18 June 2010 to 14 July 2010, contravened: (a) section 45 of the Fair Work Act by Al Hilfi failing to make superannuation contributions on behalf of Bhola Singh pursuant to clause 23.2 of the Modern Award; (b) sub-section 44(1) of the Fair Work Act by Al Hilfi failing to pay Bhola Singh annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the Modern Award; (c) sub-section 536(1) of the Fair Work Act by Al Hilfi failing to provide Bhola Singh with pay slips; and (d) sub-section 535(1) of the Fair Work Act by Al Hilfi failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to Bhola Singh. 7 If these declarations are made, the FWO seeks further orders in relation to the service of the orders on the second respondent, and the fixing of a date for the hearing of submissions as to the appropriate pecuniary penalties. Similar orders are sought against the third respondent, although in the case of the third respondent, the FWO seeks additional orders relating to the pleadings, and the service of the pleadings. 8 For the reasons which follow, I think that the orders sought by the FWO against the second and third respondents in the Al Hilfi proceeding, and in the Al Basry proceeding, should be made.