Consideration of the relationship
65 Considered objectively, the conclusion that Mr James and Mr Kouka had entered into a contractual relationship with DMG, which is properly characterised as that of employee-employer, is the only proper conclusion on the evidence.
66 First, Captain Devine himself used the word "work" to describe the men's activities. When he spoke to Mr James on Ms Vulatolu's mobile phone in Suva, he told him that he could come and "work" for him on the same conditions as Mr Viliame. Captain Devine did not use the word "training". I accept Mr James' evidence about that. Mr James gave this evidence in his affidavit and said much the same in his cross-examination by Capt Boucat-Jones:
CAPT BOUCAUT-JONES: … Did Captain Devine ask you to come to Australia to be his employee?
A: That's correct.
HIS HONOUR: Well, did he use the word "employee"?
A: He used the word - if you [are] interested in working with me, you can work under the same condition[s] as [Mr Viliame].
CAPT BOUCAUT-JONES: What were the conditions that you were told about working with Captain Devine by [Mr Viliame]?
A: They will be doing welding, cutting, getting $100 a day.
Q: Did he say anything about being trained?
A: No.
67 Captain Boucaut-Jones cross-examined Mr James about his understanding of the word "work" with a view, apparently, to establishing that Mr James had understood Capt Devine's use of it in a distinctive sense. However, Mr James said:
In my first language, work is to do something to get something out of it … I think it's common sense. Everybody knows you work to get money. Nobody works to get something else. … Money is … the main thing.
In my view, that accords with the ordinary understanding of the word "work" and both Capt Devine and Mr James understood the word in that sense.
68 Mr Kouka said that Capt Devine told him that he could come to Australia to "work" for him and that he would be "working" on tugboats in Sydney.
69 Mr James did say that Capt Devine had spoken of plans to establish a company in Fiji. It is possible that, in that context, Capt Devine mentioned the prospect of the men obtaining work with him in Fiji. Mr James gave the following evidence:
HIS HONOUR: When you did come to talk to Capt Devine was there any discussion about the work or working in Fiji later on or anything of that kind?
A: No. He used to - he said - like, after, after all this he's going to make a company in Fiji, but no guarantee that …
HIS HONOUR: What did he say on that topic?
A: He used to tell us that all the projects here will be finished and he's going to open a company in Fiji.
HIS HONOUR: And was there anything said about you working for that company when it was established?
A: No idea, but we don't know if we're going to work in Fiji. So we tried to prove ourselves here so we had the chance to work in Fiji.
I accept that evidence. It indicates that Mr James had the hope of obtaining work with Capt Devine's company in the event that he established operations in Fiji, but it is well short of indicating that Mr James was informed that he was undergoing training in Australia for contemplated employment in Fiji.
70 Next, the very value of the benefits provided to the Fijians over an extended period is highly suggestive of the benefits being provided in consideration of reciprocal benefits to Capt Devine and/or DMG. DMG's payment of the airfares of Mr James and Mr Kouka, its provision of their accommodation, its payment of a "living away allowance" of $100 per day and its provision of a vehicle to Mr James for his use, together with other benefits are all highly suggestive that the arrangement was not the beneficent provision of work experience or work training.
71 In relation to the Japanese Longliner, DMG deployed the men in a profit-making activity. The men took the cut metal from the vessel to a scrap metal merchant and were paid for it. Captain Devine said that the men would collect "two or three, four thousand dollars" every "two or three days". From that money, Mr James would deduct the living away allowance and any out of pocket expenses and then send the balance to Capt Devine. Captain Devine said that ultimately he did not make money on the project but he did not produce any documentary evidence supporting that assertion. In any event, whether or not DMG did make a profit is immaterial as it is apparent that the cutting up and sale for scrap of the Japanese Longliner was intended as a profit-making exercise.
72 The work on the Bradley which involved the cleaning and removal of rust and scale, water jet blasting, pumping out and spray painting was of a different nature but was nevertheless valuable to DMG. The Bradley was being repaired and maintained so as to meet the requirements for a sea survey and to ready it for use on a valuable contract in Queensland which DMG had procured.
73 Mr Kouka said that in addition to the work he carried out on the Bradley, he also cleaned and painted two tugboats. His evidence about that was limited and it is not clear how he came to do that work.
74 The nature of the work carried out on both the Longliner and the Bradley was of a kind typically performed by employees. The men were essentially supplying their labour.
75 Captain Devine expectation of the work on the Bradley was revealed in the following passage in his cross examination:
Q: Do you agree that there were occasions when you would telephone and provide instructions on what needed to be done?
A: No I would ask, "where are you up to?". I had a rough idea where he was going, where he was up to, and a couple times I said, "you know, you are dragging the chain a bit. We've only got another week or so and we've got a survey inspection".
Q: Yes.
A: They were already pre-booked you see; everything was pre-booked.
Q: And so just talking about the Bradley barge, you expected them to complete this within a particular time?
A: Well, if they had - and if I could see they were getting behind, I would've sent [Mr Barrett] and some other - or engaged some other contractors or something like that to assist them.
Q: And also you would tell them to hurry up a bit, would that be fair?
A: I would tell them if they were, you know, sort of getting behind schedule but I knew in my own self that [Mr James] was a doer. He wasn't a slacko.
This is very suggestive of the men having to complete a work task according to a schedule, rather than a component of training.
76 The manner in which the men worked is indicative of an employment relationship. Mr James, Mr Kouka and the other Fijian men usually worked Monday to Saturday but Mr James also said that they often worked Sundays as well. They usually started work each day at about 6:00am and finished at about 6:00pm. If Capt Devine was on site, they continued working until he said they could stop. When he was not on site, they worked until they finished the particular task on which they were then engaged or, in Mr Kouka's case, until Mr James or Mr Viliame said they could stop. They had a lunch break each day of about half an hour. The very hours and regularity with which the men worked militates against their activities being regarded as a form of training. It is much more consistent with DMG wishing to maximise their output in the time they were available to it.
77 Both men recorded the days they worked in the manner of employees recording their work. There was no need for them to do so if they were mere trainees. Mr James recorded the days he worked in an invoice book with provision for duplicates. The original invoice was given to Capt Devine and a carbon copy was retained in the book. Sometimes Mr James used the word "training" or the word "experience" as a heading for the entries. Captain Devine usually signed the entries in his book when he gave him the originals.
78 Mr Kouka said that he recorded in an invoice book the days he worked and the entitlement to the Living Away Allowance for that day. Mostly he recorded $100.00 but, if he had not worked the full day, he recorded $50.00 only. In all his entries he used the word "training". He was told what to put in the book by Mr James and by the other Fijians, and not by Capt Devine. Mr Kouka's invoice book showed the deduction of an amount described as "Sub". It seems that this was the amount deducted by DMG for reimbursement of the airfares paid by it.
79 Another indication of the way in which Capt Devine regarded Mr James was his description of him as "the foreman". Captain Devine said that Mr James took over from Mr Barrett in that respect and praised his qualities. When he was away from Adelaide, which was often, he would telephone Mr James regularly giving directions and enquiring as to the progress of the work. In this respect he gave the following evidence:
Q: How did [Mr James] know what tasks he was to carry out?
A: I would tell him. I would say, "I want the barge" - I would not only tell him. I would fly down here …
Captain Devine also said that when he was away from Adelaide he would from time to time ask others such as Capt Boucaut-Jones or a Mr Lawrie to check on the Fijians and to report to him.
80 Mr James said that it was common for Capt Devine to telephone him shortly before 6:00am and to speak to him about the work planned for the day, and for him to ring again at about 5:30pm to enquire about the progress of the work. Mr James did not say so expressly but it was implicit in his evidence that Capt Devine was not enquiring about the men's training. It is very evident that Capt Devine exercised considerable control over the day to day activities of the men.
81 Captain Devine said that the men were free to go off and do something else but later said that he would have been "very annoyed" if they had gone to work for anyone else. He said that, in that event, he would have contacted DIAC so that the men's visas would be cancelled. Mr Kouka also said, and I accept, that Capt Devine said to him more than once words to the effect "I need to see the work. If you don't like it, you go back to Fiji.".
82 Another indication that Capt Devine regarded the Fijians as subject to his control is seen in the evidence as to the locations at which they worked. I referred earlier to Mr James' evidence concerning the trip to Cairns and his work at Capt Devine's daughter's home and at the caravan park of his former wife. Captain Devine told the men to accompany him and directed them as to the task which they were to perform. There was no suggestion that this was made in the form of a request as might have been expected if the men were regarded as "invited guests". They were not, for example, asked to leave their training programs for a time. Captain Devine did say that he had "possibly" said that the Cairns trip would be "some good training for cyclones for you". I do not accept that evidence as it had the hallmarks of a retrospective reconstruction. The nature of the tasks which Mr James and his fellow Fijians undertook in Cairns cannot reasonably be described as participation in a training program at all, let alone a training program relating to work on boats.
83 Further, Capt Devine was able to direct some of the Fijians to work at his yard in Sydney, rather than to come to Adelaide to work on the Japanese Longliner or the Bradley, and despite what was said in the letters of support provided in relation to the visa applications. He said that he was the one who made the decision as to whether a Fijian came to Adelaide or to Sydney. As noted, Mr James did spend six weeks of his second trip in Sydney on a variety of activities, none of which could be regarded as participation in a structured training program. Further, on Mr James' third trip he worked for about one week in Sydney doing cleaning and repairs on a boat at DMG's yard at Rozelle before driving to Adelaide and commencing work on the Bradley.
84 Captain Devine's ability and evident right to control both the activities of the men and the places at which they performed it is highly suggestive of an employment arrangement.
85 I accept that the men did receive some training but it cannot reasonably be regarded as sufficiently detailed or continuing so as to warrant the description of a course of training. Both Mr James and Mr Kouka had had a diverse work experience in a marine environment and were familiar with a number of the tasks involved. However, Mr James had not previously done oxy-cutting and he was taught how to do that. In addition, he received training in operating an excavator, in operating the cranes used on the site, and in the operation of a 20 t forklift. Captain Devine considered that Mr Kouka's manner of throwing a heaving line was deficient and gave him some instructions in the appropriate technique. Mr Kouka said, and I accept, that most of the jobs which he did on the Bradley were tasks which he had done as a seaman over the previous 10 years and that he learnt very little which was new to him. In my opinion, the instruction given to the men was a form of on the job training of the kind which is commonplace in many workplaces. It cannot reasonably be regarded as an incident of a structured and organised training program. In particular, the evidence does not indicate that the men spent much time at all being shown techniques, or the manner of working, or in observing others for instructional purposes.
86 Captain Devine referred to the payments made to the men as a "Living Away Allowance". However, the following evidence from Capt Devine made it plain that the allowance was not to compensate the men for the costs they would incur by being away from their home:
Q: Is this right? That the purpose of that money was effectively to cover expenses while they were away from home?
A: Yes, it was to accommodate their family, their school, their children, their schooling. They're far superior than what they would receive working on a fishing boat of $20 a day. $100 a day is equivalent to $250 Fijian dollars a day.
….
Q: So did you contemplate that they would be able to send that money or at least some of it back to Fiji?
…
A: Yes, to cover all their outgoings, everything, and it was far superior than what they would be doing earning in Fiji.
This evidence indicates two things. First, that the payments were to enable the men to support their families in Fiji, rather than to meet their own living costs in Australia. Secondly, the amounts paid were considerably in excess of that which they would have been paid if working in Fiji. The inference can therefore be drawn that the Living Away Allowance was not intended as compensation for the earnings which the men forwent by voluntarily undergoing training in Australia.
87 Mr James explained that the reason he had gone straight back to work after cutting his knee in the incident in March 2011 was "because of the money, if I'm not working I'm not paid". He gave other evidence, which I accept, which provided a reasonable basis for that belief. For example, on occasions when the men did not do a full days' work, DMG paid only $50 per day. Mr Kouka said that, on some days, Capt Devine told them to finish early and to record those days as "half days". He received only $50 in respect of the half days. In this way the payment of the allowance was conditional on the men's performance of productive activity.
88 I also observe that Capt Devine either paid for, or provided, the men's accommodation. He also supplied some of their food from time to time. In this way he met significant parts of the men's costs of living away from their own homes. That being so, the payment of $100 per day cannot reasonably be regarded as an estimate of the men's living expenses while in Australia.
89 All these matters point to the Living Away Allowance as being a payment of remuneration. I conclude that that is how the monies should be characterised. Captain Devine's description of the payments as a Living Away Allowance does not alter their true character. Nor does the circumstance that there were no deductions of income tax.
90 The certificates provided by Capt Boucaut-Jones purporting to certify that the Fijian men had completed forms of training should not be regarded as evidence that the men were engaged in some form of genuine training program. An obvious point is that Capt Devine had not even met Capt Boucaut-Jones until after Mr James had commenced working on the Japanese Longliner in January 2011. He could not therefore have established any program with ANC pursuant to which Mr James, and the others who came at that time, were undergoing some form of training with that College. I note that Capt Devine acknowledged that, at the time of Mr James' first trip to Australia, he had not had any arrangement with Capt Boucaut-Jones for the provision of training.
91 It was common ground between Capt Devine and Capt Boucaut-Jones that the latter had prepared the certificates at the request of the former and had included in them the detail which Capt Devine requested. Both Capts Devine and Boucaut-Jones acknowledged that Capt Boucaut-Jones had not undertaken any training of the Fijians at all. Some evidence from Capt Boucaut-Jones suggested that he had monitored aspects of the activities being undertaken by the Fijians and could see that it was training. I do not accept that evidence. I accept instead the evidence of Mr James that, in total, he had seen Capt Boucaut-Jones on four occasions only. One of those occasions was in April 2011 when Capt Boucaut-Jones gave him his ANC certificate. Another was after the incident in November in which Mr Sturm was asphyxiated in a tank on the Bradley. Mr Kouka said that the first time he saw Capt Boucaut-Jones was on the day of that incident. Captain Boucaut-Jones himself acknowledged that he had been to the shipyard only twice before presenting Mr James and others with the certificates dated 7 April 2011. Accordingly, the opportunities for any monitoring by Capt Boucaut-Jones of the Fijians were quite limited.
92 Further, Capt Boucaut-Jones' evidence was that the only course which the ANC provided in 2011 related to recreational boating licences, a very different activity from those being undertaken by the Fijians. Further again, Capt Boucaut -Jones told Capt Devine, when first asked if he could provide a training program for the Fijians, that he was not licenced to do so.
93 Captain Devine's explanation for the provision of these certificates is revealing. He said that he asked Capt Boucaut-Jones to provide Mr James with a certificate "like a boy scout stamp or a good behaviour stamp from a school teacher". He went on to say "Fiji is a little bit different to Australia. They're just lovely, wonderful people. Give them an encouragement and they really want to try. And that's how it has always been, every certificate …". He said in relation to the certificates provided later in 2011:
At all times, I have asked Captain Boucaut-Jones could he give me a certificate from - believe you me, when you see a Fijian's resume, the more certificates he has got - that's more impressive. It's just like a boy scout. The more emblems on his shirt, the more pride he takes in - amongst his clan. It's the same with Fijians. The more certificates they've got …
94 Captain Boucaut-Jones gave the following evidence in cross-examination concerning his provision of the certificates dated 7 April 2011:
Q: And what did Captain Devine ask you, or what did he say when he asked you to put together those documents?
A: I think it would be good thing for the boys if they had some recognition that they could take back to their family, to tell them what they had been doing in Australia. It was to be presented as an award on a final barbeque night in Sydney, before they left to go home.
95 The provision of the certificates is relevant in other respects and it will be necessary to return to them. However, for present purposes I indicate my satisfaction that the certificates are not evidence that the Fijian men were undergoing a training program, let alone a formal training program. They were little more than tokens given for patronising reasons. The certificates do not displace the very strong inference that the men were brought to Australia to carry out work.
96 I will refer later to the letters of support which Capt Devine provided on the DMG letterhead for use in connection with the visa applications. As indicated earlier, neither Mr James nor Mr Kouka saw these letters at the time of the visa application. They cannot be regarded as part of the communications between the parties against which their relationship is to be assessed. However, even if they were, they would not, in my view, result in any different characterisation. There is an element of contrivance in each of the letters. I make the following points about the letter of 9 January 2011 addressed to Mr James:
(i) Although the letter was addressed to Mr James, it was never provided to him, a circumstance which by itself means that it could not have been an invitation to him at all, let alone an invitation to train and participate in the disposal of a Longliner;
(ii) Contrary to the first sentence, Mr James had not had a "recent stay" in Australia and nor had he met Capt Devine in Adelaide so as to have any discussions with him;
(iii) For the same reasons, Mr James could not be invited "back to Australia".
The reality of the situation was that DMG was not "sponsoring" Mr James but instead wishing to engage him to perform services for it.
97 Similar points may be made in respect of the letter of 27 April 2011 addressed to Mr James:
(i) Although the letter was addressed to Mr James, it was never provided to him and so it could not reasonably be regarded as an invitation to him;
(ii) Contrary to the statement in the first paragraph, ANC was not running a "salvage, demolition and disposal training course" on the Longliner;
(iii) This meant that the contemplated completion of the "course" could not be beneficial for Mr James;
(iv) There were not "approximately 12 weeks available for further training before the vessel is completed". Even if there was another 12 weeks of work on the Longliner, DMG did not allocate Mr James to that work but instead had him work for six weeks in Sydney in DMG's salvage yard.
98 The letter to Mr Kouka of 13 September 2011 did not refer to training or instruction at all. It contemplated Mr Kouka carrying out activities on the tug Brooke D and made no reference to the Bradley. Mr Kouka was invited to Sydney for "three months familiarisation and preparation of the ship for the sea journey to Fiji to carry out work on our wreck-dive tourism project in the Yasawa Group of Islands". The letter said that he would help make the Brooke D and himself "seaworthy in Sydney and [then] join the crew to deliver her to Adelaide for slipping and surveying with RINA inspectors to comply with the International Classification Society rules and regulations." That is all suggestive of work activities. Although the letter referred to the Brooke D and not to the Bradley, it cannot be regarded as misleading of Mr Kouka because it was not provided to him.
99 It is very evident that each of the letters of support was prepared to assist in obtaining for the men a 456 Visa and that none reflected the reality of the situation.
100 I will refer later to Capt Boucaut-Jones' letter of 27 September 2011.
101 Objectively considered, it is plain that Capt Devine and DMG, on the one hand, and Mr James and Mr Kouka, on the other, entered into contractual relationships pursuant to which, in consideration of the payment of their airfares, accommodation, living away allowance and other benefits, the men were to provide valuable services to DMG. The fact that they may have acquired some additional skills and experience in doing so does not alter he underlying nature of the relationship. Their respective relationships cannot reasonably be understood as one between a host-business and a training participant. The proper characterisation of the relationship in each case is that of employer-employee.