Harper v Gold Coast Pistol Club Ltd

1. Mrs Harper (Harper) was born on 23 June 1946 and is 78 years old. Harper was known as 'Kate'. Harper first became a member of the first respondent (the Club) in 1981. She was made a life member of the Club in 2007, but that life membership was terminated on 13 August 2021.
2. The Club provided competitive shooting facilities for members and guests at premises situated in Ashmore in southern Queensland.
3. Harper claimed that during the course of her employment with the Club, she had not been paid appropriate award wages, and that she ought to be compensated for that underpayment, and for other alleged contraventions of the Fair Work Act 2009 (Cth) (the FWA). She also claimed that she was entitled to continue to occupy a residence situated within the Club's premises (the Cottage), and to continue to perform the role of caretaker for the Club. The final orders sought in the Third Amended Statement of Claim (SOC) filed on 20 June 2024 were as follows:
   1. An order pursuant to s. 545 of the Fair Work Act that the Pistol Club continue to permit the Applicant to occupy the Cottage and perform the role of caretaker in accordance with the terms of the Amended Accommodation Agreement.
   2. Alternatively to paragraph 106, an order pursuant to s. 545 of the Fair Work Act that the Respondents pay the applicant compensation for the loss of the value of the Amended Accommodation Agreement.
   3. An order pursuant to s. 545(2) of the Fair Work Act that the Respondents pay the Applicant compensation for the loss referred to in paragraphs 59AA, 64.6, 73.6, 68.6, 80.6, 86A.1 and 86C.4.
   4. Alternatively to paragraph 108, the Pistol Club pay the Applicant in quantum meruit reasonable renumeration for services rendered.

...

1. An order pursuant to subsection 546(1) of the Fair Work Act that a pecuniary penalty be imposed upon the Respondents in respect of each of the contraventions of the Fair Work Act pleaded above.

2. An order pursuant to subsection 546(3)(c) of the Fair Work Act, that the pecuniary penalties be paid to the applicant.

...

116. An order that the Respondents pay the Applicant's costs of the Proceedings.

...

1. An order that the Respondents pay the Applicant Long Service Leave in the amount of $15,127.58.
2. An order that the Respondents pay the Applicant annual leave in the amount of $64,617.80.

1. At all relevant times, the Club was a "constitutional corporation" under s. 12 of the FWA.
2. The Club was a "national system employer" under s. 14(1)(a) of the FWA. It was also an employer for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth) (the SGA).
3. The Club was run by a fourteen (14) person committee elected at its Annual General Meeting (AGM). Membership of the Club was governed by the provisions of a document entitled "Gold Coast Pistol Club Limited - Constitution and Articles of Association". [1] The club committee was required to meet once every calendar month.
4. By clause 14(a) of the Constitution, it was provided, under the heading "Functions of the Management Committee", that the management committee "(i) shall have the general control and management of the administration of the affairs, property and funds of the Club...".
5. One of the responsibilities of the Management Committee was to manage the affairs of the Club according to law. So much was trite.

1. Harper claimed that from November 2005 until 30 June 2006 she was employed by the Club on a part-time basis to undertake bookkeeping and other administrative tasks on its behalf.
2. Harper claimed that from November 2005 until the commencement of the Registered and Licenced Clubs Award 2010 on 1 January 2010, she was employed by the Club under the Clerical Award - Registered and Licenced Clubs - State 2003 (the State Award).
3. The Court finds that Harper was appointed as the Club Manager by Geoffrey Hall, the then president of the Club, on or about 1 July 2006. Harper moved into the caretaker's residence on site at the Club premises in about October 2007. [2] Harper stayed in that residence as part of her remuneration package, paying rent to the Club in the amount of $100 per week, from 2007 until the date of the termination of her employment on 7 July 2021.
4. It was Harper's ongoing occupancy of that Club caretaker's residence (the Cottage), after the termination of her employment with the Club, which was the subject of an application for leave to appeal to the Federal Court from an interlocutory judgment of His Honour Judge Vasta, who refused an application for an interlocutory injunction restraining the Club from interfering with Harper's quiet use and enjoyment of the residence until the handing down of judgment in this proceeding. On that application for leave to appeal, Logan J in Harper v Gold Coast Pistol Club Ltd [2022] FCA 525 granted leave to appeal from the interlocutory orders of His Honour Judge Vasta and allowed the appeal. Orders were made by Logan J on 16 February 2022 in the following terms:

THE COURT ORDERS THAT:

1. The applicant be granted leave to appeal and the appeal be heard and determined instanter.

2. The appeal be allowed.

1. Orders 1 and 3 of the orders made by the Federal Circuit and Family Court of Australia (Division 2) dated 20 October 2020 be set aside.

4. In lieu thereof it be ordered:

Upon the applicant, by her counsel, undertaking in respect of the premises known as the Cottage, 85 Edmund Rice Drive, Ashmore, Queensland 4215 (the Cottage):

1. to keep the Cottage in the manner of a reasonable tenant; and

2. to pay the first respondent rent in respect of the occupancy of the Cottage in the sum of $275 per week;

the respondents be restrained from interfering with the applicant's quiet use and enjoyment of the Cottage pending final resolution of these proceedings or further earlier order.

1. From 1 January 2010 until on or about 6 January 2021, Harper claimed that she was an employee under a Modern Award, namely from the time of the commencement of the Registered and Licenced Clubs Award 2010, and thereafter from the time of the commencement of the Registered and Licenced Clubs Award 2020.

1. The provisions of ss. 340, 341 and 361 of the Fair Work Act (2009) (Cth) (FWA) are respectively as follows:

"Section 340 - Protection

(1) A person must not take adverse action against another person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

• (b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4-1).

Section 341 - Meaning of workplace right

(1) A person has a workplace right if 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; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a) a conference conducted or hearing held by the FWC;

(b) court proceedings under a workplace law or workplace instrument;

(c) protected industrial action;

(d) a protected action ballot;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining representative;

(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h) agreeing to cash out paid annual leave or paid personal/carer's leave;

(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k) any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees

(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earning.

(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).

...

Section 361 - Reason for action to be presumed unless proved otherwise

(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."

1. For Harper's adverse action claims to be proven, she must have asserted, and established, that:
   • she exercised a workplace right or rights as pleaded in her SOC;
   • the conduct complained of in fact occurred; and
   • the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.
2. If it was established by Harper that the impugned conduct was conduct which contravened provisions of the FWA, it was for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason in respect of the threatened termination of her employment.
3. As to the proper approach to be adopted by a court when considering whether impermissible adverse action has been established or not, the Court respectfully adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:

"[5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task." - at [5] per French CJ and Crennan J

"[104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342." - at [104] per Gummow and Hayne JJ

"... The test is whether adverse action has been taken because of a proscribed reason." - at [129] per Gummow and Hayne JJ;

"... Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action." - at [140] per Heydon J;

"... The assessment of a witness's mental processes is an assessment of that witness's state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court..." - at [141] per Heydon J.

1. A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) - (iii) inclusive of the FWA, due to the use of the word "because" in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:

"[60] The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression "because" or "because of" as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.

...

[63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action."

1. On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:

"[41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.

...

[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?"

[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity."

(Footnotes omitted) (Emphasis added)

1. On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:

"[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden's Pty Ltd v Bowling remains pertinent: "the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge."

(Footnotes omitted)

1. An employer's onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:

"[54] ... a question arose as to whether the director's evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director's evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts."

(Emphasis added)

1. When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] - [127] inclusive said:

[121] My conclusion that the applicant's exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant's case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant's First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.

[122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) [1981] FCA 207; (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant's position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.

[123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:

[19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.

However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.

[124] Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:

[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply "rubber stamps" a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.

[125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].

[126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.

[127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role."

1. It will always be a question of fact as to whether the proscribed reasons, as pleaded in a statement of claim as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to have regard to when assessing the evidence before it, in that regard.
2. Whether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s. 341(1)(c)(ii) of the FWA is factual and is to be considered objectively.
3. In this proceeding, the respondent conceded that the termination of the applicant's employment on 7 July 2021 constituted adverse action under s. 342 of the FWA.
4. As later canvassed in these reasons, the Court finds that the exercise by Harper of her workplace rights was in respect of her employment as governed by the provisions of s. 341(1)(c)(ii) of the FWA.

The capacity in which Harper worked at the Club

1. At trial, the lawyers for Harper called 21 witnesses, and the lawyers for the respondents called 6 witnesses. All the witnesses did their best to recall what work they saw Harper performing on the occasions that they each were in attendance at the Club's premises. When viewed as a whole, the weight of the evidence favoured Harper's version as to the extent of work performed by her. [3]
2. Inconsistencies between the evidence of those witnesses called on behalf of Harper as compared with those witnesses called on behalf of the respondents were because of their memory having suffered due to the passage of time, and in some respects because their friendship with Harper had been fractured over time due to her dispute with the Club.
3. The Court finds that Harper was employed in the capacity of Club Manager, and that the work she performed, over time, and as particularised in her affidavit filed on 5 February 2023, was as follows:
   1. Paragraphs 78 - 81 - work performed as and from 1 July 2006 until 2007.
   2. Paragraphs 88 - 131 - work performed from 2007 until 2009.
   3. Paragraphs 132 - 177 - work performed from 2009 until 2010.
   4. Paragraphs 178 - 210 - work performed during 2011.
   5. Paragraphs 211 - 225 - work performed during 2012.
   6. Paragraphs 226 - 292 - work performed from 2013 until 2016.
   7. Paragraphs 296 - 359 - work performed from 2017 until 2019.
   8. Paragraphs 360 - 417 - work performed from 2020 until 25 June 2021.
4. The Court found Harper to be a forthright and honest witness. Harper was plausible and accurate in most of her evidence, though the Court did find that in some respects she was inaccurate in her memory and reconstruction of past events. Although sometimes appearing nervous, she did not prevaricate or otherwise give conflicting evidence of significance. The small number of errors in her evidence, some significant, can be attributed to memory lapses because of the passage of time.
5. Harper was best placed to record exactly what work she performed during the period of her employment by the Club, and the capacity in which she performed such work. Her relevant affidavit evidence about her ongoing work performance was as set out in [48] - [425] of the Harper Affidavit filed on 5 February 2023. In particular, the Court accepted that Harper performed the work as set out in [81] of her affidavit filed on 5 February 2023, which provided as follows:

81. I accepted the full-time role and from in or around July 2006, I undertook the following type of work for the Club:

81.1 continual and daily updating of the financial accounts for the Club. The Club operated on an accounting package called Quickbooks, however when I started it changed over to use MYOB,

81.2 ongoing, daily, processing of memberships. I was signing up maybe 2-3 new memberships a week at this stage,

81.3 preparing week to week payment requisitions and obtaining signatures from Committee Members for those payments. I'd prepare the requisition, cheque, and remittance advice, obtain the signatures, and then I'd post the payments in the mail. The Club was operating on hand-written cheque books / payments and letters by post at that stage,

81.4 entering on a daily or weekly basis the data for the monthly Profit and Loss and Balance Sheet, reconciliation of the accounts, and producing a report for the end of month for the Treasurer to present to the Committee Members at the monthly Committee Meetings of the Club,

81.5 at the end of month printing out a list of payments already made over the course of the month by the Club Treasurer to be ratified at the monthly Committee Meeting,

81.6 attending, on daily basis, upon prospective members, answering their inquiries, taking their application, completing the necessary documentation/ references for their application, and preparing the application for approval of the Committee at Committee Meeting,

81.7 daily processing of payments for the Club from the new members or renewals, and posting letters of renewal to members,

81.8 issuing, on daily basis, the new members with a swipe card and participation book, and discussing with them how the Club operated, how to maintain their participation book, requirements of their licensing, when they were able to acquire firearms, storage of firearms, likely costs of firearms and ammunition, Club events, and any other type of inquiry or direction,

81.9 following up, on daily basis, members after making their application for their information, records, and paperwork to process, or dealing with after application inquiries, including attending upon the Weapons Licensing Branch with respect to those applications and or permits to acquire firearms,

81.10 conducting a daily stocktake of ammunition, alcohol, stationary, and placing orders for them from local suppliers. At that stage the Club did not have a significant retailing business,

81.11 managing, on daily basis, volunteers to conduct work around the Club including what work was required by each of them. Rostering of volunteers to complete the work required in and around the Club. Bruce Brown (Moses) undertook the cleaning for the Club at that stage, and Graham Jeremy (Graham) undertook the maintenance. They were both paid a wage for doing that work. The Club engaged many volunteers, year to year. Many of the volunteers were paid cash by the Club to not affect their government pensions,

81.12 attending, on daily basis, to the post office to post or pick up Club mail, the bank to carry out the Club's banking, or various locations to pick up supplies,

81.13 attending to, daily or weekly, general maintenance issues around the Club. would occasionally, through the course of any week, walk around the Club and see if anything needed attending to, or would have it reported to me by members attending the range. I'd then arrange any work that was required,

81.14 physically, on daily basis, attending on members for the retailing of limited volumes of ammunition, safes, shirts, caps, firearms accessories, food, and beverage, and maintaining the cash register. Most members paid for items by EFTPOS or credit-card at that stage, however some still paid with cash. The Club used manual credit card machines with carbon paper receipts at that stage,

81.15 attending, on daily basis, upon the Weapons Licensing Branch with respect to licensing, membership renewals, new members, compliance, or permits to acquire,

81.16 in anticipation of upcoming Committee Meetings making sure all the bank reconciliations and records of transactions were up to date and printed for the Treasurer. I would work on the accounts wherever I could find time over the course of the week. It was an ongoing attendance. The minutes of prior meetings were typed by the Secretary, who was Laurie Hinton at that stage,

81.17 giving each Committee Member upon arrival a copy of the minutes of prior meeting and agenda for meeting, and discussing the Club with them prior to the start of the Committee Meetings,

81.18 attending each month's Committee Meeting over the course of 3 to 4 hours and taking notes of what was required of me by way of Club Management arising from that Committee Meeting. The Committee would discuss the business of the Club for the month. The meetings were conducted in a certain order. We'd start with apologies for those who could not attend. That was addressed by the Secretary. Then we'd cover the incoming and outgoing correspondence. That was also addressed by the Secretary. Then we'd have the Treasurer's report. That was addressed by the Treasurer. The Treasurer would go through the profit and loss, balance sheet, funds held at bank and then distribute the accounts to all the Committee Members for review. The financial records presented by the Treasurer were those which I had maintained, prepared, and provided to the Treasurer. Then we'd go through new memberships. Then we'd move to business from the last meeting. That was addressed by the President. Then to current business, which was also addressed by the President. Each of the matters raised would be addressed with or without much discussion by the Committee. If anyone wanted to say something about an issue they would speak and discuss it. I would speak and contribute to the discussion when I felt any comments were necessary. A lot of matters would be raised by Committee Members at the Committee Meeting that were not on the agenda. That is, if matters came to mind during the meeting, they would raise them, and we'd discuss them. A lot of the matters raised would revert to me for comment because I was the only person present full-time at the Club over the course of the month and would have either observed it, heard about it, or experienced it. Most times I was responsible for sending out the letters or emails that are referred to within the Minutes of the Committee Meeting. Even where there is no identification in the Minutes about who is to undertake a task that task was usually undertaken by me. On my next day of work, I would start to action the items given to me from the Committee Meeting. If I couldn't attend a Committee Meeting the President would adjourn it to a later date so that I could be present for it. That was the case with each President ie Geoff, Bob Schukraft (Bob), Barry Dixon, and later Steven Flori (Steve),

81.19 I maintained the accounts for the Club on a week to week and then month to month basis,

81.20 completing, on the daily basis, application forms for permits to acquire a firearm for members,

81.21 attending, on the daily basis, upon suppliers / creditors of the Club to manage accounts payable. When I started the Club had a poor reputation because the former Treasurer, Tim Davis, hadn't paid creditors of the Club. No one wanted to deal with the Club because of its bad credit. It took me quite a while to mend relationships. When people noticed that I was working at the Club, some having dealt with me in my former firearms dealership, and that payments were being managed and made, they were happy to deal with the Club again,

81.22 dealing with the external accountant through the course of the year. I'd provide John Amos with the figures for quarterly lodgements, in the lead up to the AGM, and for the end of financial year. The Treasurer would supervise what records I was providing to John Amos,

81.23 working with or supervising the work that Moses and Graham did in and around the Club,

81.24 training of junior members, aged 11 to 18, on a weekly basis. There was generally 5 or 6 of them at any given time. I also undertook any administration / paperwork for them with their parents,

81.25 each year going through a register received from the Police and checking member attendance / participation records, firearms ownership, reconciling that register against our records, and reporting back to the Weapons Licensing Branch. I would complete this task over a period of approximately 8 weeks,

81.26 attending, month to month, to promotional activities for the Club including stalls at shows, like the Gold Coast Show. I would speak with interested parties at shows or any public event and try to attract memberships to the Club. We had a TV ad running in those early years. In later years I attended on radio broadcasts promoting the Club,

81.27 attending any events or functions of the Club where alcohol was served because I was the responsible person for the Liquor License and the only person who held a certificate for the responsible service of alcohol. At a later stage another member also obtained a certificate and would assist me in the service of alcohol,

81.28 on a weekly basis obtaining quotes, estimates, and tenders for work needed around the Club and reviewing them and providing them with my recommendations to the Committee Members for their consideration and or acceptance,

81.29 reviewing the financial records of the Club, on daily and weekly basis, as I entered the data and identifying any irregularity. If found or where the accounts didn't balance, then finding out why and resolving the irregularity,

81 .30 sending by mail invoices every month for any receivables including for membership renewals,

81.31 on daily and weekly basis, preparing for, processing, and attending to the accounts payable,

81.32 on daily and weekly basis, preparing for, processing, and managing the accounts receivable,

81.33 on daily basis, manually entering all transaction undertaken by the Club into MYOB,

81.34 attending upon representatives of third parties for inspections or matters of compliance. For instance, I negotiated the changes to the operating hours of the Club for licensing purposes, I attended to inspections of the Club premises with Christian Moore of the Weapons Licensing Branch, I attended to inspections of the Club premises / ranges with Sergeant Gerry O'Conner, I attended to inspections of the Club premises with Trevor Jenkins from SSAA for insurance purposes,

81.35 preparing policies and procedures for the Club. I would prepare them and provide or dictate them to Noel Willis who would enter them into the computer in the correct format,

81.36 on daily basis taking all phone inquiries for the Club and attending to all tasks that arose from those calls, and

81.37 on daily and weekly basis preparing lists and registers for work that needed to be done in and around the Club.

1. Harper was adamant that the work that she performed after 1 July 2006 was that of a full-time club manager. That claim was supported, in abundance, by documentation generated by the Club itself. In relation to the Club's acknowledgment of the extent of work carried out by Harper on behalf of the Club after 1 July 2006, and as to the capacity in which Harper carried out such work, the Court has read, and having done so, adopts as accurate, those references in Schedule E to the applicant's submissions filed on 5 November 2024, to Exhibit 9, and to the transcript as respectively particularised in footnotes 41 - 44 inclusive of the applicant's submissions filed on 5 November 2024. Those references evidence Harper being acknowledged as Club manager, as well as the performance by her of work in that capacity.
2. An example of the latter was Harper being referred to as "Club Manager" on the Club's website as early as 17 November 2007. [4] The ongoing reference by the Club to Harper being the Club Manager was further evident from an emailed Club Information Book prepared in 2012 which identified Harper as being an integral part of the Club's operations. Harper was specifically referred to as being the point of contact by reference to those headings in the Information Book relating to Range Operations, Club Management, Weapons Safety Attainment Certificate (Weapons Act Safety Course), Weapons Licencing and Firearm Acquisition. Under the heading "Range Operations", reference was made to Harper being the Club Manager as follows: [5]

The Club Manager is Kate Harper. Kate is the person you will most likely have the most to do with on a day to day basis. Her duties include: opening the club grounds and facilities for members, giving potential new members tours of the club and taking bookings for and providing weapons safety courses, and coaching sessions. Kate is responsible for the collection of range fees from non-member shooters, which currently is $15 per person per day. She also reports to the management committee on matters of range operation and most importantly from your perspective, range availability for members use.

Kate is directly responsible to the committee through the Vice President. If there are matters that require attention and they cannot be resolved by Kate she will bring the matter to the attention of the appropriate committee member on your behalf. If you need something and don't know who to ask, Kate is a good starting point.

The club manager is on duty on Saturdays and Sundays. On the weekends the responsibility for range operations is exercised by the range officers for the particular disciplines on the shooting calendar.

If you are an unlicenced shooter at this point in time you will need to complete a QLD Government Weapons Safety Course. Kate will help you out with this requirement. What you need to remember you cannot get a weapons licence until you have completed this course.

1. The Court largely accepts the evidence of Harper in her affidavit. First, at [156], [176], [209], [243], [263], [280], [294], [355], [361], [372] and [373] of her said affidavit, Harper deposed that she had, from as early as 2010, raised the underpayment of her wages with, respectively, Robert Craig, Bob Schukraft, John Illingworth and, via Craig, with Steve Flori. Each of Craig, Schukraft, Flori and Dixon were members of the Club committee at the relevant time that Harper raised the underpayment of her wages with them. The Court accepts that Harper raised the issue of underpayment of wages by the Club with Craig as early as 2009 - 2010, with Barry Dixon in about 2010 [6], and that Craig raised the issue with other committee members over time up until his resignation in 2021.
2. For Harper, the evidence concerning work performed by her was as follows:

Transcript of 21.08.2024 at p. 208.34 - 267.30 and Transcript of 22.08.2024 at p. 292.5 - 316.45

1. For the respondents, the evidence concerning work performed by Harper was as follows:

1. The applicant called one Robert Craig as a witness in her case. Craig was an important witness because he had not only been a member of the Club from about 2004 until he resigned from the Club in 2021, but he had also served as a director and committee member of the Club between 12 November 2007 - 16 June 2008, and between 10 November 2008 - 22 January 2021. Craig had also served as treasurer of the Club between 2009 and 2021.
2. At [38] of his affidavit filed on 12 March 2023, Craig deposed, and the Court finds, that Harper had performed work at the Club as follows:
   1. Over the period of my membership, as Director, Committee Member, or Treasurer, I observed during my attendance at the Club, from my personal undertaking of work with Kate, the Club's records, or reports made to me by other members / Committee Members, that Kate undertook the following work for the Club

38.1 day to day general management task.

38.2 sourcing and ordering of any plant, machinery, or equipment required for use the Club

38.3 purchasing, firearms' related equipment, and ammunitions for the Club and its members

38.4 ordering food and beverage for the Club and maintaining stocktake.

38.5 membership inquiries, new memberships, membership licensing, and renewals.

38.6 sourcing, recruitment, training rostering, and management of volunteer staff.

38.7 attending upon third parties and government agencies concerning the Club and its affairs. For instance, in relation to licencing, employment, or workplace issues, legal and accounting matters, third party certifications (such as the police training)

38.8 preparing reports and recommendations to the Committee as to procedures, business, or administration of the Club and assisting the Committee on decision making

38.9 administration, maintaining, and processing of financial records for the Club and preparing its records for statutory periodic lodgements ie for business activity statements or annual returns.

38.10 assisting / arranging, authorising, and overseeing maintenance or replacement of Club property. For instance, the security cameras or IT equipment.

38.11 attending monthly Committee meetings and annual meetings. She discussed the issues that were relevant to that months' business and administration of the Club.

38.12 overseeing the computer system and making recommendations to the Committee to upgrade the computer system.

38.13 representing the Club at various external meetings or events.

38.14 resolving any disputes with third parties, the public, government agencies

38. 15 directly supervised the work of other volunteers.

38.16 completing tasks that required a level of skill and intelligence.

38.17 completing any training or education she required to advance the administration or business of the Club.

38.18 supervising staff in one or more sections of the club, including allocation of duties, preparation of rosters, counselling, discipline, and performance.

38.19 undertaking or supervising clerical work, maintaining records including the use of computers.

38.20 assisting in stock control and stocktaking.

38.21 contributing ideas for long term planning, including the areas of new equipment, maintenance, human resources, marketing.

38.22 checking and supervising quality of services, hygiene, and safety arrangements.

38.23 checking equipment and facilities for maintenance, replacement, and upgrading.

38.24 checking, organising, and implementing security procedures.

38.25 placing supply orders and authorised payments within set procedures.

38.26 assisting in establishing stock control levels, checking accuracy of stocktaking, evaluating suppliers, negotiated pricing and / or terms.

38.27 implementing and checking emergency procedures.

38.28 collecting statistics, analysing income, and making recommendations for improvement of trade.

38.29 assessing tenders and quotations, inspecting works done at the Club, liaising with outside businesses.

38.30 analysing income and expenditure for a number of the Club's operations, calculating costs and / or value of stock and sales.

38.31 Investigating and identifying financial irregularities.

38.32 Implementing and maintaining marketing programs and activities including the Club's website.

38.33 supervising financial reports and calculation of finances, reporting to the Club's accountant, establishing stocktaking procedures, and identifying financial risks.

38.34 preparing agendas and proposals for consideration by the Committee.

38.35 assisting/ establishing procedures that apply to the whole Club.

38.36 preparing financial reports, co-ordinating reporting with the Club's external accountant.

38.37 representing the Club at third party venues, events, speaking engagements, including annual meetings / Club meetings.

38.38 maintaining a firearms register.

38.39 attending with me upon suppliers of firearms to negotiate and purchase stock for the Club.

38.40 attending with me to the quarterly firearms dealership meetings including when the Weapons Licensing Branch of the Queensland Police was present.

38.41 inquiring about, pursuing, and obtaining government grants for the Club.

38.42 operating for the benefit of the Club's services and membership a registered training organisation.

1. The Court further finds that from 26 July 2015 until 7 July 2021, Harper was either required or expressly or impliedly authorised to perform the work which was carried out by her on behalf of the Club.

1. Harper had been residing at the Club's premises since late 2007 until the present time. She was for most of that time the person who was responsible for the opening and closing of the gates to the Club premises. She had unrestricted access to the office, and she otherwise was able to access all parts of the Club, at her own discretion, as and when she desired. Due to the close proximity of the Cottage to the areas where most members congregated when attending at the Club's premises, Harper was in regular contact with such Club members. Much of the evidence given by witnesses called on behalf of Harper relating to her hours of work was based upon such witnesses having seen Harper in and about the Club when they had been at the Club. The fact that Harper always appeared to be present when such witnesses were at the Club does not necessarily support the proposition advanced on behalf of Harper that she was working up to 60 - 70 hours per week. Nor does it support the proposition that Harper was always working when such witnesses so observed her.
2. It was not surprising that Harper would have found it difficult to distinguish between times worked by her, and times claimed to have been worked by her. Mere banter with club members, which the Court finds Harper extensively engaged in, did not constitute work on most such occasions. During cross-examination, Harper conceded that socialising was not part of her job description as follows: [7]

But you weren't always in the office, were you?---Not always in the office, no.

No. Sometimes you're out shooting and enjoying shooting, weren't you?---I would be socialising with the visitors and the members, yes.

Yes. And socialising with the visitors and members wasn't part of your work, was it?---As the manager, yes, it was.

You weren't employed by anyone to socialise, were you?---I was employed to be a club representative, and to me that was to make visitors and members feel at home and be happy.

No one ever instructed you that your job was to socialise with people, did they?---Part of a member's - excuse me - manager's duty is to socialise with people and make ---

I'm asking what you think part of a manager's duty is, no one ever instructed you as part of your employment duties to socialise with anybody, did they?---I would say they did.

Well, you haven't mentioned it in your affidavit?---Well, then, no.

No. So you accept that no one ever told you to do it?---I accept that.

Okay. And the practical reality is you had been at the club a very long time, you accept that?---Yes.

And that a large part of your social circle was centred around the club and its members?---Not a large part, but probably half of it.

Half of it. And you accept, don't you, that you enjoy spending time with your friends at the club?---I love spending time with my friends at the club.

1. Relevantly, there were no time sheets required to be kept by Harper, or anyone else in authority at the Club, relating to Harper's hours of work. [8] In the absence of the accurate recording of the times when Harper was engaged in work on behalf of the Club, the Court is required to make a holistic assessment on such issue based upon the entirety of the evidence before it, including the nature and extent of the duties which the Court has found Harper performed during her employment. In the absence of documentation which reflected actual times worked, such assessment was necessarily impressionistic. Having considered all relevant evidence on that issue, the Court finds that for most of the time between 1 July 2006 and 6 January 2021, Harper worked a 38-hour week. The Court accepted the submission made on behalf of the respondents that Harper often sought the company of friends who were Club members, and that she mingled with them, because she found it difficult to concentrate watching television or relaxing in the Cottage due to the noise generated by range gunfire. The Court also finds that Harper was a gregarious individual who enjoyed mixing with Club members socially.
2. Further, the Court finds that Harper spent a considerable period during her working week dealing with issues arising out of the running by her of a business under the corporate name of Queensland Training Centre Pty Ltd (QTC). QTC was a business incorporated on 24 October 2011 which ran weapons training courses. Harper deposed that she relevantly had the skills and knowledge to run weapons safety training courses. [9] She benefited financially from the operation of such business in her capacity as a beneficiary of the Queensland Training Centre Trust (QTCT).
3. Harper's evidence during cross-examination about QTC was relevantly as follows: [10]

Now, you ran your own business, QTC, from the club's premises, didn't you?---Correct.

And you used the club computer to run the business?---Yes, I got permission from Bob Schukraft when I got QTC, and he said to use the club's computer, so I did.

And you were regularly doing QTC work from 2010 onwards during hours you claimed to have been working for the club?---QTC work from 2010 was very minimal and all I ever did was email certificates. And it didn't take much time at all, and I believe one to two hours a week would have been the total time I took on QTC.

QTC had a website, didn't they?---It did.

And you have to prepare the information for that website to be put up?---The only thing I had to change on the website was the date of the courses, and I had somebody do that.

But when the website was originally created, for example, there was information that was required to be given to a web designer?---Yes, I did that.

You did that?---But that didn't come from the club, I did that - - -

And you did that at the club, didn't you?---No, I did not.

You did it during work hours on the club computer?---No, I did not.

And on that website, the QTC website, there was a phone number?---Yes.

To ring you, wasn't there?---Yes.

And that was a number which went to your phone, that the club phone was diverted to as well?---Correct.

So to the extent you were taking calls, you weren't only taking them for the club, you were taking QTC calls as well, weren't you?---Yes, I was, but there wasn't a lot of QTC calls.

All right. Now, you used the club computer, you've accepted, and used to print out certificates for the attendees at the courses?---No, they were emailed.

You would print out some of them, wouldn't you?---Some of them. The ones Thursday nights, ones for Ross, I used to print out.

And you would print those out - - -?---And some - yes.

You would print those out at the club on hours you claimed to have been working?---Most of the Ross ones I did at 9.30 at night, after he finished his course.

And there were also packs that you gave to the attendees, weren't there, with information in them?---Correct.

Booklets, and those sorts of things?---Correct.

And you printed those booklets out from the club computer as well, didn't you?---I printed some of them - most of them were printed by a man that I knew that worked at Xerox, and he printed me out a bulk lot which I had at home.

Now, during the entirety of its operation period, QTC had 7894 different attendees - sorry, I will withdraw that. I will start that question again. There were 7894 attendances at QTC training during its period; do you accept that?

HIS HONOUR: Which period?

MR SMITH: During the entirety of QTCs operation, your Honour.

THE WITNESS: What that's - - -

HIS HONOUR: Well, up until when?

MR SMITH: Well, up until - - -

HIS HONOUR: About.

MR SMITH: - - - mid 2021?---So - probably that would be correct.

All right. And each of those attendees had to contact you, didn't they?---No, they didn't.

Well, you organised the training sessions; you accept that?---The training sessions - I organised the dates, yes.

And the way that you were contacted by those people was either by them ringing you on your telephone; that was one way they contacted you, wasn't it?---Everybody didn't contact me. Most of them - if they came from the webpage then they would - the information that they needed was on the webpage. If they came from the club, the information that they needed was on the new members form that I used to send out to each welcome letter to every member.

But they still had to register to do the course?---No, they didn't. They would just turn up. They did not have to register.

How would you know if anyone was going to turn up to a course, Ms Harper?---We didn't.

Now, QTC didn't only operate the Gold Coast Pistol Club, did it?---No, it didn't.

You had trainers scattered all throughout Queensland, didn't you?---I did.

About 23 of them, I think. Does that sound about right?---I think - at the last six years I've had seven.

All right. But over time you've had a number of different trainers?---Yes, but some of them did, like, a year. They weren't big trainers.

No, but I'm asking about the number of trainers?---Yes, I probably had up to 16 trainers, yes.

All right. And you had to identify people with the right qualifications and ability to train the courses, didn't you?---Yes, I did.

And that was something that you did during business hours, wasn't it?---No, it wasn't. It was something that I did at home. That was done on my computer.

And you had to liaise with the other ranges that were used, didn't you?---No, I didn't. That was up to the trainer.

You spent, can I suggest to you, a significant amount of time each week administering business at QTC from the club; do you accept that?---I accept I did about one to two hours, yes.

Can I suggest to you that it was more like five to 10 hours a week?---No, that is not correct.

All right. You would accept, though, that you sent a significant number of emails from the Gold Coast Pistol Club address that were QTC emails?---I did, but probably most of them were on my days off. Some weren't.

So to the extent that there are emails, that are before the court, which are from the Gold Coast Pistol Club address that relate to QTC - - -?---Yes.

- - - you accept you would have sent those?---I would, yes.

All right. And there were - not all of those emails that you sent during that time would have been about straightforward matters, would they?---They were just certificates, and they would take, probably, one minute to do.

Well, you would have also sent emails to your accountant about financial matters; do you accept that?---Not from the club, no.

Not from the club. Excuse me, your Honour.

THE WITNESS: I met with John Illingworth in person.

HIS HONOUR: Yes, Mr Smith.

MR SMITH: Yes. Excuse me, your Honour. I am just trying to find a particular email that's relevant to the question I just asked.

HIS HONOUR: Do you think you will finish with Ms Harper before 1?

MR SMITH: Not before 1, but I would expect to finish with Ms Harper today.

HIS HONOUR: Right. Well, I am going to adjourn at about 10 to 1.

MR SMITH: Thank you, your Honour.

Would you have, then, sent emails to your accountant from your - - -?---Private email - - -

- - - kateharper2 email?---Yes.

And you would accept if that showed you were in club hours, you sent it during club hours - it would show that on the email?---If it's stated on the email, I would accept it was during club hours, yes.

All right. The reality is that you were running a reasonably complex business operation with QTC, weren't you?---I wouldn't call it complex.

Well, you had to maintain real training and assessing certification, didn't you?---No, I didn't do that. The trainers did that, and the paperwork was done by people that I employed.

Well, you did it while you were training, didn't you?---What's that?

While you were training people for QTC you had to have a trainer and assessor certification - - -?---I did, yes.

- - - and you had to do that and maintain it?---I did.

And you had to do checks on your trainers to ensure that they had the right certification, didn't you?---That was done originally when they became trainers, yes.

And the business had a licence as a registered training organisation; is that right?---It did. And you had to apply for that licence, didn't you?---I did.

And you had to maintain that licence, didn't you?---It was audited every 10 years. It was up for an audit now.

Yes. So there were audits that you had to respond to?---Correct.

And there was financial information that you had to prepare for the accountant?---But that was not done at the club. I did everything - - -

I am not asking where it was done?---Okay.

I am just asking about the tasks?---Yes - yes. There was financial things that had to be done for the accountant, yes.

Yes. And there were payments that had to be made to the trainers?---Yes.

And there were telephone inquiries that you had to deal with?---Yes.

And all of those things you did while at the club during your hours of work, didn't you?---No, I did not. A lot of it I did at home, and a lot of it I did on my days off.

So is your evidence to his Honour that from 2011 onwards, in addition to working 60 to 70 hours a week, plus working two hours a night as a caretaker, you're also running this business on your own time? Is that your evidence?---I had - yes. I had one trainer up till two thousand and seven - 2015. One additional trainer is all I had.

I didn't ask how many additional trainers you had. I asked you whether in addition to, you say, working between 60 and 70 hours a week, plus another 10 hours of caretaker-time, you were then, on top of that, running this business in your own time?---Yes. I was running it in my own time.

That's just a flat-out lie, isn't it?---No, it's not.

1. Harper transacted business on behalf of QTC, as and when required, when approached at the Club by people who wanted to undertake firearm training and safety courses under the auspices of QTC. She also took telephone calls concerning QTC courses during the day when she was otherwise performing her usual work duties for and on behalf of the Club.
2. Again, the Court has been required to adopt a holistic approach to the question as to how much time Harper spent on QTC related activities. Having considered the nature of work undertaken by Harper on behalf of QTC as deposed to by her, as well as the fact that most of such work was undertaken by her at the Club's premises, the Court finds that Harper probably spent about 5 hours per week involved in QTC business. That 5 hours would have fallen outside of the 38-hour working week performed by Harper on behalf of the Club, such that her entitlement to payment by the Club for the performance of a 38-hour working week was not diminished thereby.

1. In the present matter, Harper was paid on a part-time basis until 30 June 2006 as a bookkeeper, but after 1 July 2006 she was employed on a full-time basis as Club Manager. Such change of role was of no moment. It has long been acknowledged that the facts of each particular case determine whether a change in the employment relationship between an employer and an employee has, or has not, occurred.
2. In Westpac Banking Corporation v Wittenberg & Ors [2016] FCAFC 33; (2016) 242 FCR 505 at [257] - [262], Buchanan J held as follows:
   1. The search, accordingly, in a case where it is said that a contract of employment has been replaced in an ongoing relationship of employment (or even that its terms have been varied), is for an imputed mutual intention that such a change in the contractual landscape has occurred.
   2. In Easling v Mahoney Insurance Brokers [2001] SASC 22; (2001) 78 SASR 489 ("Easling"), Doyle CJ said:

8 To my mind, a court should not too readily assume that a change in working arrangements, or in the duties of an employee, involves either a variation to an existing contract, or the making of a new contract. In my respectful opinion Murray CJ stated the matter too widely when he said in Federated Mutual Insurance Co of Australia Ltd v Sabine [1920] SALawRp 21; [1920] SALR 284 at 292:

"The true view, I think, is that unless the original agreement gave the employer the right to the services of the employee in any capacity he chose to direct from time to time there would be a new employment whenever a change was made in the duties to be performed, and it would be a question of fact in each case what the terms of the new employment were."

9 In my respectful opinion the issue is whether the original agreement gives the employer the right to make the changes that have been made, and if it does, then neither a varied contract nor a new contract arises.

10 The application of the relevant principles to the facts of a particular case will often be difficult. In some fields of employment changes in the working arrangements and tasks performed will occur gradually. The application of the relevant principles of law may be difficult in such a case.

1. In the same case, Bleby J found that there had been no unilateral change of duties and hence no repudiation of the contract to support a claim for damages. His Honour said:

157 It cannot be said, in the light of the correspondence and of the appellant's oral evidence, that as at 12 February 1999, when the appellant terminated the contract, there had been any enforced change of duties against the appellant's will, such as to amount to a repudiation of his contract of employment. The respondent had expressed a repeated willingness to discuss such changes with the appellant, and indeed to seek his advice as to how the restructuring could best be effected. He himself had expressed a willingness to undertake a different range of duties, and had frankly acknowledged in evidence that the prospect of some further change was not a major concern to him.

1. Even with changes to duties being made at the instigation or direction of an employer, there may be no basis for complaint about imposed changes. In Spartalis v BMD Constructions Pty Ltd (2014) 120 SASR 575, a Full Court of the Supreme Court of South Australia referred to the observation of Doyle CJ in Easling, and to Quinn, and said:

26 A court should not too readily find that a change in working arrangements or in the duties of an employee entails either a variation to an existing contract or the making of a new contract. If the original agreement gives the employer the right to make the changes that have occurred, there will be neither a variation of contract nor a new contract.

(Footnotes omitted.)

1. Whether changes occur incrementally and slowly, or more rapidly pursuant to an intended program of development and expansion, unless it can be said that an employer has breached a contract by an unjustified and unlawful attempt to impose change (in which case the employee has the normal remedies for breach or repudiation) it would not be readily inferred, in my view, that the entire contract of employment has been replaced by a new one. In the case of a comprehensive written contract dealing with a range of important matters, including but by no means confined to, methods and occasions for termination of the contract, that could have drastic and potentially damaging results for both parties. Such an intention should not lightly be imputed to them in a continuing relationship.
2. A suggestion of consensual variation raises different issues. The variation suggested must arise directly from the altered circumstances and respond to them in a way which can be objectively attributed and imputed to both parties. The test for implication of the term, or the implied abandonment of an existing term, leaving a void to be filled, is not supplied by the view of a court that the change would itself be reasonable. Unless it can be said that abandonment of a term represents a common intention it may not be assumed in my respectful view. A fortiori, the altered circumstances are consensual; so must be the contractual variation, if any.

1. Further, it has long been a well-established principle that employers and employees cannot contract out of minimum entitlements as contained in awards. As was held by White J in Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 at [49]:
   1. The FWO's first contention on the appeal concerning the Deeds was that no effect should be given to them because it is not possible for employers and employees to contract out of the minimum entitlements established by awards. That principle is well established: Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691 at 700; Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406 at [23]‑[35]; Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784, (2000) 99 FCR 95 at [17]‑[25]. The FWO accepted that this general principle does not preclude parties from compromising bona fide current and contemplated litigation. So much was confirmed by the Full Court in Kowalski at [17]:
      1. In these circumstances to view the Heads of Agreement as simply involving some diminution of the appellant's statutory rights is to misunderstand the agreement reached. Plainly the appellant and the second respondent had litigation outstanding. Plainly enough each party was putting a particular position in that litigation. There were risks to each. True it is that statutory public rights cannot be waived or compromised. However, this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation.
2. The Court finds that from at least 2010 until 7 July 2021, Harper was either required by the Club, or was expressly or impliedly authorized by the Club, to perform the work which she did, and that Harper worked a 38-hour week.
3. It was submitted on behalf of Harper that the applicable awards governing Harper's employment were the Registered and Licenced Clubs Award [MA000058] 2010 and 2020 (the Clubs Award).
4. It was submitted on behalf of the respondents that the applicable awards were the Amusement Events and Recreation Award [MA000080] 2020 (and its predecessors) (the Amusement Award).
5. Clause 4 of the Clubs Award relevantly provided as follows:

4. Coverage

[Varied by PR994478]

4.1 This award covers employers of employees engaged in the performance of all or any work in or in connection with or for clubs registered or recognised under State, Territory or Commonwealth legislation and their employees in the classifications within Schedule C-Classification Definitions, to the exclusion of any other modern award.

4.2 To avoid doubt, this award covers the work of bar attendants or stewards employed in a club situated on a football ground, cricket ground or sports ground and persons engaged as greenkeepers, ground attendants, gardeners, propagators, lawn mower and motor roller drivers and general labourers in the construction and maintenance of bowling greens and golf courses, but does not cover:

(a) persons employed by a student union of a university;

(b) employees of municipal, shire or county councils;

(c) landscape gardeners and master gardeners;

(d) employees employed by an employer other than the club, where the employer operates a golf pro shop, driving range or other golfing facility, or provides golf coaching or other similar services, which are accessible to the general public;

(e) thoroughbred, harness, trotting and greyhound racing clubs and their employees in relation to operations covered by the Racing Clubs Events Award 2010; or

(f) club honorary secretaries.

4.3 This award does not apply to employees of employers who are covered by the following awards:

(a) Hospitality Industry (General) Award 2010;

(b) Cleaning Services Award 2010;

(c) Racing Industry Ground Maintenance Award 2010; or

(d) Security Services Industry Award 2010.

4.4 The award does not cover an employee exdude0 from award coverage by the Act.

4.5 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

[New 4.6 inserted by PR994478 from 01Jan10]

4.6 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

[New 4.7 inserted by PR994478 from 01Jan10]

4.7 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

[New 4.8 inserted by PR994478 from 01Jan10]

4.8 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

[New 4.9 inserted by PR994478 from 01Jan10]

4.9 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

1. Clause 4 of the Amusement Award relevantly provided as follows:

4. Coverage

[Varied by PR994516, PR500482, PR718585]

4.1 This industry award covers employers throughout Australia in the amusement, events and recreation industry and their employees in the classifications set out in this award to the exclusion of any other modern award.

4.2 Definition of amusement, events and recreation industry

[4.2(a) substituted by PR718585 ppc 01Jun20]

(a) Amusement, events and recreation industry means the operation of:

(i) leisure and recreation facilities and centres;

(ii) sporting, exhibition, convention and amusement complexes;

(iii) theme parks;

(iv) heritage, tourism and cultural centres;

(v) museums and galleries;

(vi) zoos, animal parks and aquariums;

(vii) agricultural and horticultural shows;

(viii) carnivals and amusement parks;

(ix) ten pin bowling venues;

(x) go-kart racing venues;

(xi) amusement arcades, including video game and pinball parlours; and

(xii) golf facilities including but not limited to golf clubs, on-course and off­ course golf shops and driving ranges.

(b) For the purposes of this clause, theme parks means locations or enterprises operating attractions or amusements (whether indoor or outdoor) open to the public through either paid or free admission.

(c) For the purpose of this clause, the amusement, events and recreation industry also includes employers engaged in the supply, preparation, marking out, fabrication, installation, erection or dismantling of exhibition stands or associated componentry for the trades and public promotions industry.

[4.2(d) inserted by PR500482 from 18Aug10]

(d) For the purposes of this clause, the amusements, events and recreation industry also includes the provision of services within the primary venue such as photographic services, the sale of food, beverages and merchandising, and also activities undertaken by an employer covered by this Award which are ancillary to the conduct of the primary venue, such as road or water transport at, to or from, or away from, the primary venue, sightseeing tours, travel arrangements, and wildlife research, conservation and collection conducted away from the primary venue.

[4.2(e) inserted by PR718585 ppc 01Jun20]

(e) For the purpose of this clause, the amusements, events and recreation industry also includes golf facilities including but not limited to golf clubs, on-course and off-course golf shops and driving ranges.

4.3 Exclusions

(a) This award does not cover employees of employers where the major and substantial activity is the provision of health and fitness services and classes.

(b) The award does not cover an employee excluded from award coverage by the Act.

(c) The award does not cover an employer bound by the:

(i) Building and Construction General On-site Award 2010;

(ii) Electrical, Electronic and Communications Contracting Award 2010;

(iii) Joinery and Building Trades Award 2010;

[4.2(c)(iv) inserted by PR718585 ppc 01Jun20]

[4.3(c)(iv) renumbered as 4.3(c)(v) by PR718585 ppc01Jan10]

[4.3(c)(v) inserted by PR994516 from 0lJanl0; 4.3(c)(v) renumbered as 4.3(c)(vi) by PR718585 ppc 01Jan10]

(vi) Fitness Industry Award 2010.

(d) The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

[4.3(e) substituted by PR994516 from 01Jan10]

(e) The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

[4.4 inserted by PR994516 from 01Jan10]

4.4 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

[4.5 inserted by PR.994516 from 0lJanl0]

4.5 This award covers employers which provide group training services for apprentices and trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

[4.3(e) renumbered as 4.6 by PR994516 from 0lJanl0J

4.6 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

1. The Court finds that the provisions of Clause 4 of the Amusement Award were more applicable to the work performed by Harper in relation to the recreational and commercial activities that were carried on by the Club, than were the provisions of Clause 4 of the Clubs Award. The Clubs Award was more directed to bar staff and those employees involved in activities associated with maintenance of existing infrastructure. It could not be said that Harper's main activities fell into the management of such activities. Her responsibilities were more diverse and varied, as would have been expected of the manager of a recreational pistol shooting club. Clause 4.9 of the Clubs Award does not assist Harper.
2. Clause 13 of the Amusement Award provided that employees covered by the Award must be classified according to the structure and definitions as set out in Schedule B - Classification Structure.
3. It was submitted on behalf of the respondents that under the Amusement Award, Harper ought to be classified as a Grade 3 employee. The Court accepts that submission. The Grade 3 criteria were more applicable to the tasks performed by Harper than those as set out in the Grade 4 criteria. The respective criteria for Grades 3 and 4 were as follows:

Amusement, Events and Recreation Award 2010

...

B.4 Grade 3

B.4.1 An employee at this level is an employee who has completed an appropriate level of training so as to enable the employee to perform work within the scope of this level.

B.4.2 An employee at this level performs work above and beyond the skills of a Grade 2 employee to the level of their skills, competence and training.

B.4.3 An employee at this level includes Supervisors and Operators (where four or more are employed).

B.4.4 Such an employee will possess the following skills and may be required to perform the following duties:

(a) Works from complex instructions and procedures.

(b) Assists in the provision of on-the-job training.

(c) Can perform a greater variety of tasks competently in accordance with the established procedures within their work classification.

(d) Can provide assistance for problem solving and work direction.

(e) Is trained in and can apply a higher level of quality control and customer service.

(f) Performs work which is the subject of final checking only.

(g) Has good health and safety knowledge.

(h) Works individually under general supervision while having the ability to co-ordinate work within a small team environment.

(i) Communicates effectively with other workers in their work section.

(g) Rigs steel or timber components and/or erects or dismantles same on any site or location either as a temporary or permanent structure and includes the preparation, painting and greasing or otherwise lubricating any structural part either fixed or moving either in the employer's workshops or on the site where the stand or fixture or structure is to be erected, dismantled and/or operated.

(k) Operates a passenger vehicle, handles animals, grades garments, maintenance, pattern making, animal health management, basic stable/animal compound management, operate games/amusement rides, specialised animal care, assistance with animal training, preparation of animal feed and animal care, animal management, maintenance of enclosures and gardens including pruning and irrigation, tour guide duties and presentations to the public, international host required to speak a second language, cocktail or specialised waiter, nontrade cooking, operate a food outlet, bookings and reservations, ordering stock and stock control, basic lifeguarding, security officer monitoring and operating CCTV systems.

B.5 Grade 4

B.5.1 An employee at this level is an employee who has completed appropriate training or has acquired equivalent competency so as to perform work within the scope of this level. Work performed at this level will be trade level or equivalent.

B.5.2 An employee at this level includes:

(a) An employee who holds a trade certificate or tradespersons rights certificate as an:

• Engineering tradesperson (electrical/electronic)-Level I;
• Engineering tradesperson (mechanical)-Level I;
• Engineering tradesperson (fabrication)-Level I, or equivalent;

(b) Technical/ Trade Qualified maintenance person;

(c) Craftsperson;

(d) Exhibition technician; and

(e) Interpreter.

B.5.3 Such an employee will possess the following skills and may be required to perform the following duties:

(a) Is able to exercise the skills and knowledge of the engineering trade so as to enable the employee to perform work within the scope of this level or possesses the skills, experience, knowledge, responsibility, expertise and competency to perform work at the trade level.

(b) Understands and applies quality control techniques.

(c) Exercises good interpersonal and communications skills.

(d) Exercises higher level keyboard skills.

(e) Exercises discretion within the scope of this classification level.

(f) Performs work under limited supervision either individually or in a team environment.

(g) Performs non-trade tasks incidental to their work.

(h) Performs work that while primarily involving the skills of the employee's trade is incidental or peripheral to the primary task and facilitates the completion of the whole task. Such incidental or peripheral work would not require additional formal technical training.

(i) A person qualified b a trade required by the employer engaged in or in connection with in-house preparation, loading or unloading, marking out, carpet laying, fabrication, installation, erection or dismantling.

(j) Works from complex instructions and procedures and has a thorough understanding of the employer's internal policies and procedures relating to their department.

(k) Is able to provide training for other employees within their specific area of responsibility for skill development.

(l) Is able to co-ordinate work in a team environment or work individually under general supervision.

(m) Is accountable for their own work at trade level or equivalent.

(n) Has a thorough knowledge of the health and safety procedures relating to work within their department.

(o) Is able to exercise good interpersonal and communication skills in dealing with other workers.

(p) Performs lower-level tasks incidental to their work or which facilitate the completion of the whole task. Such incidental or peripheral work would not require additional formal technical training.

(q) Has worked or studied in a relevant field for a significant time to ensure competence to undertake and advise on a full range of normal requirements for the work and has the ability to perform a variety of activities involving special or unusual features of the work.

(r) Trade qualified cooking, food production, senior security officer, trade qualified maintenance (i.e. plumbing, spray painting, construction work) designs costumes and production, liaise with agencies, staff recruitment, menu planning, animal training, medication of animals, plantation management, animal education duties, management of a food outlet, cleaning operators, projectionist, bar supervisor, maitre d', greenkeeping, specialised performers and advanced lifeguarding.

1. Harper did not fulfill the criteria for a Grade 4 employee because the work carried out by her did not fall within the type of work activity as set out in Clause B.5.2 of the Amusement Award. Further, Harper's work did not require her to have, and she did not have, any relevant trade qualifications which was a feature of a Grade 4 employee as set out in Clause B.5.3 of the Amusement Award.
2. The Court finds, therefore, that Harper ought to have been paid for work performed under the Amusement Award as a full-time Grade 3 employee working a 38-hour week. Harper was also relevantly entitled to such other benefits as accrued to her under the respective 2010 and 2020 Amusement Awards.
3. Further, the Court finds that at all relevant times between 26 July 2015 and 7 July 2021, the 2010 and 2020 Amusement Awards applied to Harper and to the Club for the purposes of s. 45 of the FWA.
4. The Court agrees with the submission made on behalf of Harper that it was of no relevance or import that Harper was paid commission payments for data entry, the processing of membership applications, and by her being allowed to conduct QTC work throughout the claimed period. The Court finds that the Club could not discharge obligations it owed to Harper under the Amusement Awards by facilitating the payment to her of monetary commissions or other payments. First, it was contrary to the provisions of s. 16(1)(a) of the FWA for such payments to have the effect of reducing the base rate of pay of a national system employee such as Harper.
5. Second, the Club did not purport to assert that by the payment of monetary commissions to Harper, the entitlements due to her under the award had been satisfied.
6. Third, the payment of monetary commissions to Harper was a separate and distinct agreement between Harper and the Club from the obligation imposed upon the Club to pay to Harper that which was due to her under the award. The Court accepts the submission made on behalf of Harper that the commissions were "extra-award" payments as recognised by s. 16(1)(a) of the FWA. The commission payments were made for "a promise extraneous to the award obligation[s]". [11]

1. To the extent that the Court has found that provisions of relevant awards have been contravened, the Court directs that the parties confer for the purpose of the calculation of the total of amounts found to have been payable to Harper under such awards after 26 July 2015, together with any other entitlements, together with applicable interest on any such amounts calculated at the Court's applicable rate of interest.

1. It was common ground that Harper was not paid pursuant to any award.
2. Harper was strenuously cross-examined about the nature and duration of work that she performed. It was put to her that the agreement reached between her and the Club was that she was to be paid $250 per week for 10 hours work, and that any extra time spent by her doing things for and on behalf of the Club was in her capacity as a volunteer. The Court does not accept that proposition.
3. The Court was impressed with, and accepted, the evidence given by one John Illingworth who swore two affidavits respectively filed on 20 December 2022 and on 12 March 2023. Mr Illingworth was the Club's external accountant between 2015 and 2020. He well knew that Harper was being underpaid over that period of time. In his affidavit filed on 12 March 2023, Illingworth recounted the content of a conversation held between him and Harper's solicitor in March 2023 going to the Club's knowledge of Harper's underpayment from as early as 2009. Illingworth's recollection of such conversation was as follows:

FA: "Did you attend meetings with the Club to discuss the underpayment of Kate's wages?

JI: "Yes, but when? I attended meetings and had numerous conversations with either Robert Craig or later with Steve Flori about the underpayment of Kate's wages. Those meetings and discussions started as early as 2009 and continued year to year until around 2021. On each occasion I advised the Club that Kate's wages were underpaid and fell short of any Award."

FA: "The Club has recently advised us that it does not hold any records of communication concerning Kate's working conditions or wages. What do you say about that?"

JI: "That's just not true. There would be a volume of records each year concerning that topic. Can I suggest that you issue a subpoena on IPS Accounting and ask them to produce my emails and timesheets concerning the Club."

1. The Court accepted the evidence of Mr Robert Craig which was also significant. [12] Relevantly, Craig was a committee member of the Club between 10 November 2008 - 22 January 2021. He was treasurer between 2009 - 2021.
2. In his cross-examination, Craig was taken to an email trail concerning remuneration which the Club had been paying to Harper and two other people for work performed by them on behalf of the Club leading up to June 2009. [13] In an email dated 14 June 2009, Craig asked Steve Flori (Flori) for his opinion as to whether the payment of money by the Club to Harper, and two other people, was sanctioned under the provisions of the Club's Constitution. At the time that the email was sent, Steve Flori was neither a member of the committee nor a director of the Club. He subsequently became a director on 26 October 2009, and he currently remains a director of the Club. [14] Relevantly, Flori provided his opinion, stating in part as follows:

"I must also say that whilst I am happy to provide you with an objective opinion of the interpretation of the Constitution as you requested I am also cognizant of the work done by Kate, Moses and Graham and the tangible benefits the Club reaps from their work which in my view, on a personal level, far exceeds the remuneration received in each case."

1. Craig deposed that from as early as 2009, Harper would approach him complaining about her being underpaid. [15] His evidence was as follows:
   1. Each year during the term of my Treasury, Kate would approach me, and we would have a conversation with words to the following effect:

KH: "I need to be paid more by the Club for the work I'm doing. I'm working 40 to 50 hours a week, and then working after hours as caretaker. And I'm only being paid $250 a week with some commissions here and there. Can you please raise it with the Committee and have my wages increased to what I should be getting paid."

RC: "Yes. I know Kate. I will raise it with Bob and the Committee and have it addressed."

1. I made repeated approach to Robert Schukraft (Bob), who was then the President and had a conversation with words to the following effect:

RC: "We are underpaying Kate. She's not being paid in accordance with the Award. And because of the underpayments we are short paying her Super as well. We need to put her on the correct wages. We need to address this. She has raised it with me."

BS: "Yes, I know. We need to address it. Let's have a look at it and address it with the Committee."

17. I raised the issue with the Committee Members at the Committee Meetings.

1. In or around 2010, I met with Bob and John Illingworth (John), who was then the Club's external accountant. We had a conversation with words to the following effect:

RC: "We need to address the underpayment of Kate's wages. We are not meeting the Award and are underpaying her Super. She is approaching me about it, and I've told her that the Club needs to address it."

JI: "I agree it is a serious issue. It is a significant underpayment for the role she is performing, and the hours she is working. It needs to be addressed without delay."

BS: "I know it's a problem. We need to address it. Let's work it out and address it."

1. The Committee Meeting minutes did not accurately record every issue discussed at the Committee Meetings. Largely because they were taken as an overview of what was discussed and not everything that was discussed.

2010 to 2014

1. Kate continued to approach me each year about the underpayment of her wages. She would at least once a year approach me and we would have a conversation with words to the following effect:

KH: "What's going on with my wages? When will this issue be addressed? I'm working 50 to 60 hours a week and growing the business and still getting $250 a week with a small amount of commission?"

RC: "I keep raising it with the Committee, and with Barry. They've told me they will look into it and address it. But I'll follow it up."

1. After repeated approaches to Bob, without success, I started to make approach to the new President, Barry Dixon (Barry). At least once a year I approached Barry raising my concerns about the underpayment of Kate's wages and had conversations with Barry with words to the following effect:

RC: "Barry, I've been raising Kate's wages with Bob and the Committee for the lst couple of years and nothing is being done about it. We are underpaying her and need to fix it. We need to put her on coeffect wages. She's doing very long hours and the longer this goes on the worse it gets."

BD: "I know Robert. We need to address it. Let's work it out and put her on the correct wages."

1. Whilst on each approach to Barry, or Committee Members, there was an acknowledgement of the underpayment of Kate's wages, nothing was being don't bout it by them or the Club.
2. There was email correspondence held by the Club about Kate's working conditions and underpayment of wages during this period.
3. I approached Barry at least once a year during his Presidency and had a discussion in similar terms to what I have deposed to in paragraph 21 above.

2014 to 2020

1. Kate continued to approach me at least once a year during this period with inquiry and complaint about the underpayment of her wages. She would say words to me to the following effect: "I need my wages addressed. I'm not being paid what I am meant to. I'm doing 50 to 60 hours a week with some small amount of commissions." I would respond to Kate with words to the following effect: "I'll take it up with Steve and the Committee."
2. After my repeated approaches to Barry to no avail, in or around 2014 and through to around 2021, I made repeated approaches to Steven Flori (Steve), then President, and had conversations with words to the following effect:

RC: "Steve, I've been raising Kate's wages with Bob and Barry and the Committee for years and nothing is being done about it. We're exposed, and I'm starting to become concerned about personal exposure. We are meeting the Award rates. We need to put her on the correct wages. She's doing very long hours and the longer this goes on the worse It gets for us."

SF: "I know Robert. We need to address it. Let me look at it and come back to you."

1. Whilst on each approach to Steve, or the Committee, there was an acknowledgement of the underpayment of Kate's wages and the significant hours she was working, nothing was being done about it by the President or Committee.
2. There was email correspondence exchanged between the Committee Members about Kate's working conditions and underpayment of wages during this period.
3. I approached Steve at least once a year during his Presidency and had a discussion in similar terms to what t have deposed to in paragraph 26 above.
4. In the time available to me I have carried out a search of my emails and provided to Kate's solicitor a bundle of correspondence I have located concerning Kate's working conditions and wages. A copy of that bundle is located at pages 1 to 49 of Exhibit RPC-1. My records are limited because of changes in computer systems and servers over the years. I believe there is a significantly greater volume of records concerning Kate's working conditions and wages held by the Club or the Committee.

1. The Court finds that Harper acted as the Club's manager after 1 July 2006, and that she is entitled to recover all amounts not properly paid to her under the Amusement Awards after 26 July 2015 - that being the commencement date for Harper's claim having regard to the relevant six-year limitation period for the commencement of proceedings under the FWA.
2. The Court finds that for the respective periods from 26 July 2015 until the time of the commencement of the 2020 Amusement Award, and thereafter from that time until 7 July 2021, the Club failed to respectively pay Harper not less than the minimum weekly rate of pay under firstly the 2010 Amusement Award, and then the 2020 Amusement Award.
3. The Club's underpayment of Harper contravened the provisions of s. 45 of the FWA. Such contraventions warrant the imposition of a pecuniary penalty.

Claims for overtime, penalty rates, recall to duty

1. The Club breached its obligations to correctly pay Harper for her work under the Amusements Awards. The Club thereby contravened a civil remedy provision of the FWA pursuant to the provisions of s. 539 thereof. Such contravention also warrants the imposition of a pecuniary penalty.
2. To the extent that the Court has found that Harper worked 5 days a week (including on Saturdays and on Sundays), as per Harper's affidavit evidence, but limited to a 38 hour working week, Harper was entitled to the payment of any overtime duly payable to her at the prevailing award rates of pay under the Amusement Awards for her Saturday and Sunday work.
3. Based on a 7.6 hour working day (38 hours over 5 days), the applicable Amusement Awards would apply in respect of overtime payable after 26 July 2015 in respect of such Saturdays and Sundays. A calculation of such amount as is owed to Harper ought to be based upon an annual 48-week period for the duration of her claim, including her time working between 6 January 2021 and the date of the termination of her employment. The Court has assessed Harper's overtime claims for Saturdays and Sunday holistically over a 48-week period allowing for what the Court finds would have been occasions when, in any one year, Harper would most likely not have worked each and every Saturday and Sunday. The state of the evidence does not permit the Court to make any other more specific finding.
4. The Court is not otherwise satisfied that the applicant has adduced sufficient probative evidence to allow it to make any findings as to whether moneys were payable to Harper in respect of penalty rates or recall to duty allowances. No provision should be made for any such claims.
5. The Court finds that for the respective periods from 26 July 2015 until the time of the commencement of the 2020 Amusement Award, and thereafter from that time until 7 July 2021, the Club failed to respectively pay Harper relevant overtime under firstly the 2010 Amusement Award, and then the 2020 Amusement Award.
6. The Club's non-payment of overtime contravened the provisions of s. 45 of the FWA. Such contraventions warrant the imposition of a pecuniary penalty.

1. The Court finds that to the extent that Harper was underpaid under the relevant awards, she was entitled to the payment of superannuation, at the applicable rate, on such amounts as ought to have been paid to her.
2. The Court finds that for the respective periods from 26 July 2015 until the time of the commencement of the 2020 Amusement Award, and thereafter from that time until 7 July 2021, the Club failed to respectively pay Harper superannuation based on her wage entitlement under firstly the 2010 Amusement Award, and then the 2020 Amusement Award.
3. The failure to pay the proper amount of Harper's superannuation entitlement contravened the provisions of the award and s. 45 of the FWA. The contravention also warrants the imposition of a pecuniary penalty.

1. There was ample evidence before the Court, both in Harper's sworn evidence and during Harper's cross-examination that she ate as and when she wished to when she was carrying out work on behalf of the Club. [16] Though there was no strict provision in Harper's oral or written contract for the timing of such meal breaks, the Court finds that Harper nonetheless was able to exercise her own discretion as to when and where she had appropriate meal breaks, and that she in fact did so.
2. The Court finds that Harper has not made out this aspect of her claim. The cases cited by Counsel for Harper in support of the claim [17] are distinguishable on the basis that such cases relate not to non-payment in respect of meal breaks, but rather to the requirement for the payment of a full day's wage notwithstanding that there was some downtime during the course of a day's employment.

1. There was no provision made by the Club for Harper to take annual leave. The Amusement Awards provided for such leave. The Club thereby contravened a civil remedy provision of the FWA pursuant to the provisions of s. 45 thereof.
2. The only evidence before the Court relating to Harper having taken annual leave was that Harper took about 5 weeks leave during 2005/2006 Christmas break. [18] The Court accepts that that was the case.
3. Harper was entitled to recover that which she would have been entitled to have been paid under the Awards in respect of annual leave after 26 July 2015, together with any applicable leave loading payable under the Amusement Awards.
4. The Club's relevant contravention of the Amusement Awards and the provisions of ss. 87 and 90 of the FWA also warrants the imposition of a pecuniary penalty upon the Club.
5. Further, upon the termination of Harper's employment on 7 July 2021, the Club contravened the provisions of ss. 44 and 90(2) of the FWA by failing to pay to Harper the amount of untaken paid annual leave then due to her. The Club was also in breach of the award by failing to pay to Harper additional leave loading to which she was entitled to be paid, thereby contravening the provisions of s. 45 of the FWA.

1. No provision was made by the Club for the payment to Harper of money in lieu of her not being allowed to take long service leave. It was not in dispute that the applicant had completed over 15 years of continuous service with the Club as an employee.
2. The Court finds that Harper was accordingly entitled, under the provisions of s. 95 of the Industrial Relations Act 2016 (Qld), to the payment of an accumulated long service leave entitlement as pleaded in [73A] - [73D] of the SOC.
3. It was conceded by leading Counsel on behalf of the respondents that long service leave was payable under Queensland legislation.

Circumstances leading up to the signing by Harper of a written contract

1. The Court accepts Harper's evidence that Harper well knew that she was being underpaid as early as mid-2006. [19]
2. Illingworth was an accountant who dealt with the Club's financial affairs. His evidence was that he had been the Club's external accountant and auditor, first with IPS auditors until 30 June 2015, and then in his own right from 1 July 2015 until when he resigned from the Club in 2021. [20] The two AGM Minutes for the 2010 and 2011 years, which are annexures VJC 55 and VJC 56 to the affidavit of Victor Clough filed on 23 December 2022, were disclosed by the Club in Mr Clough's affidavit of documents as documents numbered 56 and 57 to the schedule to such affidavit and were identified as AGM minutes, whereas the AGM minutes respectively annexed as VJC 43, VJC 44, VJC 45, VJC 46 and VJC 47 for the years 2016 - 2020 inclusive were documents numbered 44 - 48 inclusive to such schedule but, curiously, were identified as "Management Committee Meetings". [21] Relevantly, each of those AGM minutes recorded the acceptance at the AGMs of the Auditors Reports. Notwithstanding the lack of disclosure of some AGM minutes for the 2012 - 2015 years after 2011, the Court infers that at every AGM subsequent to the 2011 AGM, there was likewise the presentation of, and an acceptance of, the Auditors Report at each such meeting.
3. It was not surprising, then, that Harper sought Illingworth's assistance on 30 November 2020 when it came to discussing with him what she ought to have been paid. Harper made it clear in her email to Illingworth of that date that the offer made to her by Steve Flori was well below what she was entitled to be paid. The email was as follows: [22]

"Hi John

What concerns me is he calculated the wages on 9.5 hours at ordinary rate, no overtime. I said to him that it should be 7.5 at standard and the balance at time and a half. He said you can work 10 hours without overtime. I still feel he has calculated at a very low rate of pay and not what I am worth. Where will he get someone who comes in at 6.30am (yesterday) for his open shoot, prepares lunch with Rhonda for 90 people and does the bar until 6.30pm, locks up and goes home. The same idiot opening up for police at 7.30am this morning, coming over for the fridge repair man, coming over now and locking everything up as no one works on a Monday including me. I have to unlock for the police again in the morning as no one comes until 8.30am. I also said to him that I had 46 weeks holiday pay and 15 years of long service. He said that is okay but it will be calculated at the rate I receive now not at the rate when I take the holidays. I also have weeks of sick leave as the only sick leave I have taken in the last 15 years is 20 days when I had my knee and hip done (2 weeks each). I don't know what I will do if they still offer me the same.

Cheers

Kate"

1. The Court finds that the ongoing question of Harper's underpayment for work performed by her on behalf of the Club came to a head in December 2020. Harper's sworn evidence of significance, which was accepted by the Court, was as follows: [23]
   1. From within the 2020 AGM dated 191020, and President's Report, I have extracted the following record that is relevant to the performance of my duties, consistent with the type of work I was undertaking, or my conditions of work:

"I wish to thank Kate, the Manager, for her work, in particular her assistance to Charlie in the dealership and managing the office generally."

And:

"Future: During the next committee period we will be focussing on securing our location for the long term ..... we are waiting for Kate to give the committee feedback on recent sound level checks instigated by her and we are also waiting on Kate to provide feedback on a grant application for us to install sound barriers."

1. I started to press Robert and John with respect to my wages. I had received advice from John and the Fair Work Commission. I'd say words to Robert or John to the following effect: "The Club really needs to address my wages. Everyone I'm receiving advice from is very concerned about what I'm telling them."
2. I'd raise the issue with Steve whenever I felt there was an opportunity to talk to him. I made Steve aware that I was now receiving advice with respect to the issue. I said words to Steve to the following effect: "I'm getting advice about the wages issues."
3. From within the Minutes of Meeting of 161120, I have extracted the following record that is relevant to the performance of my duties, or identifies the type of work I was undertaking for the Club:

"Undated - From Treasurer Robert Craig to the New South Wales Firearms Registry Manager to advise that Kate Harper is the Club's nominated person for the NSW Firearms Registry."

And:

"At the September Committee meeting it was decided to review the freeze on membership numbers at the first meeting of the new Committee on 16 November. After discussion it was decided to gradually increase membership numbers to avoid a sudden increase in demand, ..."

And:

"KH said she had been receiving around 10 calls a day from people wishing to book try before- you-buy shoots."

And:

"Diverting phone

To manage the issue of the high volume of calls received by the Manager outside Club hours and on days off, an automatic voice message is to be placed on the Club's mobile phone advising callers to ring again during office hours."

And:

"Bookkeeping

" ... that someone else, other than the Club Manager, have access to MYOB, .. .. Clearly someone is needed to support Kate in the bookkeeping function. Additionally, the Manager should not be receipting money and doing the banking, ..."

And :

"Cleaning

As Moses will now not be responsible for cleaning, quotes were sought from a professional cleaning company. One has quoted $165 a day for a limited service. Kate suggested a more comprehensive service could be provided by Gaye Goldstone, who would clean fastidiously and stock the fridges for $150 a day on Mondays and Fridays. OJ said she would prefer to see professional cleaners engaged. KH said Gaye ran her own professional business and had an ABN. After some discussion it was decided to engage Gaye on a contract basis which could be reviewed."

And :

"Wages

Following Kate's representations to the Club's Treasurer, and on the advice of the Club's Accountant, it recently revealed that the Committee is obliged by law to pay Kate a wage."

1. In relation to the last extract, when that matter was raised, most of the Committee responded with agreement that the Club should investigate my wages and pay me properly. Robert and Steve said words to the Committee to the following effect: "let's engage John Illingworth to look into this and advise us. "

2. In or around late November 2020, I approached Steve and had a conversation with him about my wages. We had a conversation with words to the following effect:

KH: "We need to address my wages. I'm sorry, but this is ridiculous. I've been waiting for 15 years, and every time I'm told it's being looked at by the Committee nothing happens. The only thing that keeps on happening is this idiot working her bum off for the Club to turn it into a multimillion-dollar Club. I feel gutted. I'm doing more than 10 hours a day straight. I'm working over 60 hours a week and then working through the night as the caretaker. This needs to be fixed. And I've got tonnes of annual leave and sick leave that needs to be calculated and paid."

SF: "You can legally work 10 hours without a break and without overtime. We'll look into your leave, and you can either take that or we can pay you. But if we are paying you, it will be at the $250 a week rate you've been getting paid. Not at any new level we offer you in your package. I've organised a sub-committee to look at it all, and sort it out. We'll be offering you a package soon."

1. I was starting to engage with John more and more about my wages. John was very concerned about my situation and repeatedly advised me to raise the matter with the Committee Members. John would say from time-to-time words to me to the following effect: "This is the worst I've ever seen it. You need to raise this with the Club and if they don't address it you need to approach Fair Work or a lawyer. " After my discussion with Steve referred to in paragraph 377 above, I sent John an email about it. Located at page 452 of Exhibit KH-2 is a copy of my email to John dated 30 November 2020, time stamped 3:50pm.
2. I made approach to Steve several further times about my wages. I would say words to Steve the following effect: "Can we please discuss my wage situation. I'm receiving advice about it, and it needs to be resolved. I'd like to resolve it before people outside the Club have to become involved."
3. I recall on or around late November 2020, having a conversation with Steve about my wages. We said words to each other to the following effect:

KH: "When am I going to be paid what I am owed, and be properly paid for what I am doing?"

SF: "We're working on a contract and package for you that pays you properly under the Award. "

KH: "And what about what I'm owed for the last 15 years?"

SF: "We paid you $250 a week for that, and that was fair for what you did."

KH: "I worked 50 to 60 hours a week Steve. How is $250 fair? And what about my entitlements for long service and annual leave?"

SF: "You've taken those. And we don't have records available to show what you took. We'll offer you a contract and that's all we're going to do. I'll send you an offer to sign because I'm told we need to have something on the file legally. You'll have to sign it for me so I can put something on file, and we'll then work on it and get the terms right. "

1. Steve formed a sub-committee about my wages. He, together with Vicki, Ross, and Lisa were on the sub-committee. Vicki told me that she resigned from that sub-committee because she was my friend. Each of the others were quite hostile towards me in or around this time. Steve sent me an Offer he required me to sign for his files. I recall in late November 2020, having a conversation with Steve with words to the following effect:

KH: "I thought you were putting me on wages."

SF: "No. We're putting you on a contract. It will be a six-month contract."

KH: "Why six months? I've worked here for 15 years. What happens to my entitlements and back pay?"

SF: ''That's what we are doing. That's how contracts work. You're forgetting I'm a lawyer. It's only 6 months and we'll do a 3-month KP/ review of it. "

KH: "No. You can do a contract for as long as you like. I've received advice about it. You can't just avoid the 15 years of work I have done by giving me a 6-month contract."

SF: "We're doing a six-month contract."

KH: "And after the 15 years of work I've done, why do you need to do a review in 3 months' time?"

SF: "To see how you're going with the work. "

KH: "See how I'm going after 15 years of managing the place?"

SF: "I know. But you do too much independently and don't inform me or the Committee. "

1. With the pressure I was applying on Steve to address my wages, he and the Committee Members started to shut me out from the Club business. Tasks that would usually be assigned to me were now being assigned to others to perform as though they were working me out of my role.

2. Sam Reynolds (Sam) was now at the office 3 days a week as a paid employee. Each day Sam asked me how to undertake the tasks I had to do for the Club. He would say: "show me how you do this" or "talk me through this so I know how to do it". I am informed by Rhonda that he said to her words to the following effect: "I'll have Kate's job soon."

3. At the Committee Meetings I would not be referred to for discussion, and the Committee Members would generally avoid engagement with me. It was as though I wasn't present, or I was being forcibly silenced.

4. In or around early December 2020, Steve handed a contract of employment to me. I recall reviewing the contract and having a conversation with Steve with words to the following effect:

KH: "It's not enough money. Not for the years before and not for the years ahead. Based on the advice I'm getting you've got the wrong Award. "

SF: "We'll go back and revisit it and I'll see if I can massage it and come back to you with another offer. "

1. From within the Minutes of Meeting of 161220, I have extracted the following record that is relevant to the performance of my duties, consistent with the type of work I was undertaking, or my conditions of work:

"Wages

Kate maintains that she should be engaged under the Registered Clubs Award, however SF said this award was not applicable to the Gold Coast Pistol Club, which does not meet the definition of a licensed club, or to Kate who does not meet the criteria of a club manager, nor have the requisite qualifications of a manager, under the award."

1. With respect to the last extract above, the Committee Members resolved reluctantly to revisit the terms of my contract. Lisa said words to the following effect: "Kate doesn't even have a degree. "

2. By this stage Sam was engaged by Steve to work alongside me and learn each of the tasks I was undertaking on a day-to-day basis. Steve said words to me to the following effect: "I've employed Sam to work 3 days a week in the office. Please teach him what you do each day. He's here to help." I felt there was a clear decision made to replace me and with that not to reward me for the work I had undertaken. I started to seek out further advice about my circumstances. I happened to speak to Farshad Amirbeaggi who was one of the members, a solicitor, and had called me about a permit to acquire at or around this time. I described my circumstances to Farshad. I told him I could not afford a solicitor. After listening to my circumstances, Farshad said words to me to the following effect: "I will act for you". I shortly thereafter told Steve I had engaged a solicitor. I said words to him to the following effect: "I've engaged a solicitor to look into all of this."

3. In or around mid-December 2020, I approached John and Steve to discuss my wages. Steve had engaged John to research what the Club should pay me. I believe John made inquiry with Fair Work Australia. John said to me: "I've presented a report to Steve on your wages. He said I'm not going to pay her that much".

4. On 17 December 2020, I received a written offer of employment [dated 16 December [2020] (Offer) from the Club. It was personally handed to me by Lisa Stubbs (Lisa) and Ross. I recall having a conversation with Lisa and Ross with words to the following effect:

LS: "Here's the Club 's contract for you."

KH: '[after reviewing it] It's not enough money. And what about what I'm owed for the last 15 years?"

LS: "I have two degrees, and I don't get paid much more than that. "

KH: "If I don't sign it what happens?"

RM: "That's the last contract we're offering."

1. The Offer was for a term of 6 months only. The salary was $63,363.12 per annum and required me to pay a weekly rental for the caretaker's residence of $275. I was offered a 1 off payment of $10,000 in lieu of my accrued pay and entitlements. The Offer was open for acceptance until 23 December 2020. Located at pages 453 to 454 of Exhibit KH-2 is an email from Steve to me, and copied to Lisa, Owen, and Ross dated 17 December 2020, time stamped 12:20pm.
2. On 22 December 2020, I wrote to Steve with my concerns about the Offer. Located at pages 455 to 511 of Exhibit KH-2 is a copy of that correspondence.
3. Steve called me in response to my correspondence and said words to me to the following effect: "You are not being offered wages. You are being offered a contract. If the offer isn't accepted by the offer date you will be terminated summarily and evicted from the premises."
4. I had nowhere to live and didn't think at that point in time I had any alternative but to sign and return the Offer. I was intimidated and afraid of what would happen if I didn't execute it. I felt I had no choice but to execute the letter of Offer. I executed the Offer.
5. Like the year prior, the work required to operate and manage the Club was more than a 40 hour per week commitment by one employee. The tasks required more like two fulltime employees if not more.
6. I worked long hours and weekends without breaks, additional wages, overtime, or penalties. I did not receive payslips nor any form of employment documentation.

1. The email which Steve Flori sent to Harper on 17 December 2020 was as follows: [24]

From: Steve Flori

Sent: Thursday, 17 December 2020 12:20 PM

To: Kate Harper ; Lisa Stubbs ; Owen ; Ross McNiven

Subject: Offer of employment

Good morning Kate

I have received advice that the VP has delivered the clubs letter of offer and proposed contract of employment to you this morning.

This is a final offer.

He advised that you believe the offer is unfair and you should be employed at a higher level from award provisions

I reinforce again that your not being offered employment under any award. You are being offered a private contract of employment

The offer is in compliance with the national employment standards and the offer exceeds the minimum standards required

Additionally, the salary on offer far exceeds your previous amalgamated remuneration from the club.

The committee reconsidered your employment issue based on your rejection of the first offer and subsequent submission. The committee also considered the additional information provided to you by the club accountant

The committee had previously considered, as a basis for deliberations, some position descriptions from the clerks award and this was used as a guide only to determine what we believe the duties are that you are expected to perform by the committee.

At that initial committee meeting the committee unanimously agreed on the wage level to compensate you for performing duties that we require of you.

That motion stands as Originally passed.

The two major points that seem to be confusing for you and your advisers are the fact that you are not being offered employment on an award.

As explained to you yesterday the register clubs award was not applicable as a guide because you have no mandatory tertiary qualifications for manager levels and we are of the considered opinion that our club does not fit the definition within that award

It is entirely a matter for you whether you accept the wage offer or not and you are encouraged to take advice from whoever you deem necessary.

I ask you to properly brief your advisers on what you are being offered so that any return advice is in fact on the understanding of the offer not of your interpretation or your assessment of your worth.

We have by agreement extended the timeline for you to reply to the offer to 5 PM next Wednesday.

There will be no further extensions and there will be no further offer past the current offer.

Regards Steve

1. Harper sent an email in response to Flori on 22 December 2020 and was as follows: [25]

Dear Steve

Re Offer of Employment Contract

Introduction

I refer to your offer of employment contract dated 16 December 2020. (Appendix A)

Firstly, let me say how disappointed I am with the approach you have taken in relation to my employment and remuneration.

I always worked for the betterment of this club and feel that you are making life very difficult for me at the club. I felt I had to sign the agreement I withdrew as I felt my position and my home were in jeopardy.

Award

I refer to your email of 17 December 2020 where you state "I reinforce again that you're not being offered employment under any award" (Refer Appendix B)

Unfortunately, the system does not work like that. I have been advised by the Fair Work Australia that the basis of all employment is at least the appropriate award and you cannot pay me less than the appropriate award.

Firstly, it must be decided which award I come under. The most appropriate award is the Registered and Licensed Clubs Award. I fail to see why you do not see that.

This has been confirmed by email dated 15 December 2020 from Melina of the fair work ombudsman. (Refer appendix C)

As you have stated in your email of 16 December 2020 (refer Appendix D):

CLUB means any club which is registered and licensed under the provisions of relevant State or Commonwealth statutes (Liquor and/or Gaming acts, Associations' Incorporation Acts or Corporations acts.) and which is established and operates on a not-for-profit basis for the benefit of members and the community.

This can be found in the definition section of the registered and licensed clubs award in paragraph 3. (Refer Appendix E):

Important to note here is the following:

• The Gold Coast Pistol Club Ltd is a club registered with the Australian securities and Investment Commissions as a company limited by guarantee. (Refer appendix F)

• It holds a liquor licence not a permit. (Refer appendix G).

• It holds weapons licenses under the Queensland government legislation. (Refer appendix H)

• the club operates on a not-for-profit basis the benefits of its members and the community (Refer Appendix I)

My Advisers, Fair Work Australia and I believe that this is the most appropriate award for the club to refer to for its staff.

Coverage

Section 4.1 of the Registered and Licensed Clubs Award states:

This award covers employers of employees engaged in the performance of all or any work in or in connection with or for clubs registered or recognised under State, Territory or Commonwealth legislation and their employees in the classifications within schedule C - Classification Definitions, to the exclusion of any other modern award.

Classification

I have been employed by the club since 1 July 2006 on a permanent basis. My title has been CLUB MANAGER since 1 July 2006. My business cards support this fact.

As you stated in your email of 16 December 2020 (refer Appendix D) and recited here from the definitions in Paragraph 3 of the Registered and Licensed Clubs Award:

Club Manager means a person appointed as such who is responsible for the direction and overall operation of a registered and licensed club, subject to the strategic direction determined by its board of directors or Committee of Management. A club manager has duties and responsibilities as referred to in clause C.11 of schedule C - Classification Definitions.

• As has been previously stated The Gold Coast Pistol Club Ltd is a club registered with the Australian Securities and Investment Commission and is a company limited by guarantee. (Refer appendix F)

• It holds a liquor licence not a permit. (Refer appendix G)

• It holds weapons licenses under the Queensland government legislation. (Refer appendix H)

C. 11 Club managers - duties and responsibilities Refer appendix J)

You will note that most duties and responsibilities covered under this clause of the Registered and Licensed Clubs Award I have carried out except for the items the club does not provide such as poker machines.

Clause Cl.2.2. Assessment guidelines states

Assessment guidelines describe the hospitality industry assessment system including the qualifications required by assessors and other quality assurance mechanisms

The focus of assessment is on whether a person has the skills, not on how they acquired them. People undertaking training may be assessed on or off the job. In the workplace, people who already have the skills may also be assessed.

I have worked in this position since 1 July 2006. I believe I have the skills, don't you?

I have assisted various Management committee's and various presidents build the club from having substantial debt to being out of debt and having substantial cash reserves as well as large levels of stock and holding a dealership.

I worked tirelessly and far longer than my required 40 hours per week (higher than any award requires) per my pay schedule at $6.25 per hour to date. (Somewhat under any award!

It is time that my employment was reco1mised for the quality and effort I put into the club.

After reviewing the classifications of club managers, I have determined with my advisers that I meet the conditions required for a level E manager.

My training and qualifications

• Certificate IV in training and assessment (refer appendix K)

• RSA-responsible service of alcohol

• Gold Coast Pistol Club liquor licence

• Gold Coast Pistol Club dealers license

• Gold Coast Pistol Club explosives authority licence

• Gold Coast Pistol Club Historical Society collectable licence

• Plus, Others

• Plus, years of on-the-job training

As I have previously advised, I would be happy to accept the base wage determined in the pay guide- the Registered and Licensed Clubs Award at a level E manager.

This calculation is shown as appendix L. It also shows the calculation based on my suggested roster detailed later.

The other payments available under the Registered and Licensed Clubs Award would also be applicable such as meal allowance (Refer Appendix M) where applicable and motor vehicle mileage reimbursement (Refer appendix N).

I believe I am being reasonable in this request and I am not willing to accept demands to sign a document that J do not want to sign because it is totally unfair and without substantiation.

Employment contract

I fail to see why my current position as club manager should change from an ongoing full-time basis. Your concept that I be given a six-month contract is totally unacceptable. I have been a full-time employee since 1 July 2006. There is no justification for changing this.

Paragraph 7 of the Registered and Licensed Clubs Award allows for individual flexibility arrangements. (Refer appendix 0)

Clause 7.1 states despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

• arrangements for when work is performed; or

• overtime rates; or

• penalty rates; or

• allowances; or

• annual leave loading.

Clause 7.2 states an agreement must be one that is generally made by the employer and the individual employee without coercion or duress.

Clause 7.7 states an agreement must be:

• in writing; and

• signed by the employer and the employee

I am not interested in a 6-month contract but will carry on with my full-time employment at the Level E manager rate.

Accumulated recreation and long service leave

I am not willing to cash out my accumulated annual leave and long service leave. My personal and carer's leave should also remain in place.

Work Hours

In your offer of employment (Refer Appendix A) I believe the roster you have set down for me does not work for the club. I have suggested a different roster that I believe works better for the club. I have detailed your suggested roster and My suggested roster. (Refer Appendix Q)

Conclusion

You stated in your email of 17 December 2020 that "this is a final offer" (refer Appendix B)

As I understand it, employer and employee relations do not work that way. I have been advised this by fair work Australia. You have given me your offer which I have rejected, and I have proposed what I am willing to accept.

It is now up to you to determine your position as to accepting my requirements and if these are not forthcoming, then clause 9 of the Registered and Licensed Clubs Award is activated in relation to dispute resolution.

Dispute Resolution

We are meant to resolve this by discussion as mentioned in clause 9.2 of the Registered and Licensed Clubs Award. This must be resolved in a timely manner at the workplace between employee and the committee as appropriate.

This clause 9.4 states that if a dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clause 9.2 and 9.3 a party to the dispute may refer it to the Fair Work Commission.

Should you not accept what is a reasonable solution being:

• I am covered under the Registered and Licensed Clubs Award.

• Paid at the level E manager rates

• Accommodation to be provided under a separate leave agreement as previously discussed

• Meal allowances included where applicable

• Motor vehicle mileage reimbursement covered where applicable

• Other conditions of the Registered and Licensed Clubs Award met

At that time, I will have no alternative but to lodge a dispute with the Fair Work Commission and have them attend to a resolution of this matter.

Yours faithfully

KATHRYN HARPER

1. The Court accepts Harper's evidence that she felt intimidated by the actions of the Club's Committee members in relation to the take it or leave it offer for her to sign a written contract of employment, and that she felt that she had no alternative but to sign such contract. The Court further finds that the Club Committee placed Harper in the position of her having to sign the written contract of employment because Harper had been exercising a workplace right under s. 341(1)(c) of the FWA, namely that she had been escalating her complaints and grievances to the Committee, via some of its members, about her having been underpaid by the Club over a long period of time. In taking the action which resulted in Harper entering into the written contract with the Club, the Committee took adverse action against Harper for a prohibited reason, thereby contravening the provisions of s. 340(1)(a) of the FWA.

1. After Harper signed the written contract in early January 2021, relations between members of the committee and Harper began to sour. The minutes record to a substantial degree the animus being displayed by committee members toward Harper. [26] Harper was pointedly excluded from further attendance at consecutive committee meetings after she had presented her manager's monthly reports at such meetings. Harper's evidence of relevance concerning the disintegration of her relationship with members of the Club's Committee, which evidence was accepted by the Court, was as follows: [27]

2021 | Relevant Events

1. I was undertaking all the general day-to-day management for the Club. I arrived at the Club at around 7:30am and generally work through to about 5:30pm and beyond. I was still working about 6 days a week. I was working 5 long full-time days and then more than half a day on each of my rostered days off.
2. I was working more than 10 hours a day at the Club, then additionally attending monthly Committee Meetings, quarterly Firearms Dealership meetings, Club events, and after hours performing my caretaker duties.
3. Whilst I was told by Steve that Sam was employed 3 days a week, Sam was now present pretty much all the time. It was clear to me that he was employed to take over my role and duties. He was alongside me in almost every task I was performing. From this point in time, I was required to produce a 'Manager's Report' for the Committee Meetings.
4. I would still consume food or beverage through the course of the day whilst working through on Club matters. The Club was busy every day in 2021. I believe we had more than 1800 members. The membership had dropped slightly because the Club placed a freeze on new memberships with concern about being over capacity.
5. The work I undertook for the Club in 2021 included that which I have described above however again with greater frequency and quantity as the Club had grown in membership. It was now approximately 8-fold in memberships since I started working at the Club.
6. Because of the behaviours of Steve, Lisa, and Ross, towards me, I had an expectation that my employment was soon to end. They were either cold or hostile towards me, and always tried to avoid contact or engagement with me if they didn't need me for work related tasks. I was being openly criticised at Committee Meetings for issues for which I was not responsible, and when I tried to respond I'd be asked to remain quiet or would be ignored. Sam was now doing the accounts work I used to do, and he had installed a POS system which I was not familiar with . He would not teach me how to operate it. It was clear to me he did not want me there and that he would take over when my 6 month contract was at an end. I felt from the start of the contract that it would not be renewed and was the Club's design on how to terminate me without payment of my accrued wages and entitlements.
7. I do not have access to the business records of the Club or all the Minutes of Meeting of the Committee of the Club for the 2021 calendar year. I am informed by my solicitor and believe he has requested a complete set of the Minutes for 2021 from the solicitor for the First Respondent and awaits production. I expect the complete set of Minutes will record further the type of work I was given and undertook for the Club in 2021.
8. From the limited records/ Minutes I have I have identified at paragraphs 405 to 413 below extracts which identify the type of work I was given and undertook for the Club in 2021. Copies of the Minutes I refer to for 2021 are located at pages 512 to 551 of Exhibit KH-2.
9. Soon after I had accepted the Offer, I was not permitted by the Committee to remain at the monthly Committee Meetings. I was required to attend and present the Manager's Report about the month of trade and then I was asked to leave. I believe this occurred after the April 2021 Committee Meeting. The Committee would then conduct their meetings in my absence. From after April 2021, I was not informed about the outcomes of the Committee Meetings.
10. From within the Minutes of Meeting of 180121, I have extracted the following record that is relevant to the performance of my duties, or identifies the type of work I was undertaking for the Club:

"This interference was in contravention of Section 182 of the Corporations Act 2001, which relates to individuals, including shadow directors such as Kate Harper, .... "

And:

"The payment to the Club Manager for memberships in December was ratified by the Committee."

1. From within the Minutes of Meeting of 150221, I have extracted the following record that is relevant to the performance of my duties, or identifies the type of work I was undertaking for the Club:

" .... however Kate told the Committee that the vault has been inspected three times by Weapons Licensing and had been approved."

And:

" .... pointing out that termination of her membership would result in termination of her employment as Club Manager."

1. From within the Minutes of Meeting of 150321 , I have extracted the following record that is relevant to the performance of my duties, or identifies the type of work I was undertaking for the Club:

"KH is to email all members whose fees are in arrears and if these are not paid their membership is to be cancelled."

And:

"SF raised a number of issues with the Club Manager in relation to the office administration. Kate was unable to, .. .. and gave Kate four weeks to make alternative arrangements for her business that did not involve the use of Club equipment or her time as Club Manager''

And:

"Club Manager KH and Range School volunteer Steve Eccles are each to provide a written account of events, ...... "

And:

"Staff performance feedback items

In preparation for the Club Manager's performance appraisal on Saturday 20 March, the Committee was asked to provide feedback to the Employment Sub-Committee in relation to Kate's performance since the commencement of her contract in January. Issues which were raised included Kate 's unauthorised removal of alcohol from the clubhouse and associated breaches of the Club's liquor licence; her access to the Clubhouse and the drinks refrigerator on days off; customer service regarding nonresponse to emails and members being forced to wait for counter service; inefficient processes for bringing up memberships and accounts; an unwillingness to implement Committee-directed change; non-compliance with agreed working hours; lack of systems and planning; a reluctance to provide the Committee with an updated procedures manual; the blurring of boundaries between Club business and that of Kate's QTC business; falling dealership sales and excess stocks of firearms and Jack of attention to detail in providing the Committee with a report on dealership transactions."

1. None of the matters of complaint in the last extract alleged against me were ever raised with me. They had no basis in truth, and were being raised only after my complaints about the underpayment of my wages. At no time had any of these issues been raised with me, nor was I given any opportunity to consider them and provide a response.
2. On 20 March 2021, I was sitting in my office at the Club working, when approached unannounced by Lisa and Ross and Steve. A conversation ensued with words to the following effect:

SF: "We're here to do your KP/ review. Sam, can you please leave the office."

Sam left, and Steve closed the office door. Steve, Lisa, and Ross were very serious, stern, and structured in their demeanour. There was no friendliness between us, and they didn't care about what I said or how I responded.

SF: "You aren't reporting back to the Committee and are doing too much on your own without our approval. You are working too many hours. You need to stick to the hours in your contract. You haven't completed the updating of the procedures' manual. You are still using the Club computer to send emails for QTC. The sales numbers are down."

KH: "If it's not an important issue, then I don't disturb you, and I just deal with it like I have for the last 15 years. If it's important then I know what I have to raise with the Committee. If I don't do the hours, then the work won't be finished. The only thing left to do for the procedures' manual is FADR and I don't think that can go into the procedures' manual. And then there's a manual for the POS but Sam says we don't need to do that because the POS already has its own procedures manual. I've already taken everything home for QTC to deal with it from there but there are still some inquiries coming through the office from members that I need to deal with as that dwindles down. I have to answer those, but they will come to an end as the inquiries through the Club die down. There is a lot of stock left and the numbers are down I agree, but that's because Charlie has left. If he hadn't left, there'd be no problem. He would have achieve the sales."

1. The meeting then ended. I was not given any feedback or report of that review. I was not given any notice or documentation or information prior to the meeting about what was to be discussed, or anything I should consider before the meeting, so that I could properly respond.

1. On 25 June 2021, the Club sent a written termination of employment letter to Harper, the content of which was as follows: [28]

25 June 2021

Kathryn Harper

Employment contract

Dear Kate

On 21 June 2021 the Management Committee considered your continued employment by the Club due to your current employment contract being due to cease 7 July 2021.

Prominent issues considered included but were not restricted to Contract breaches:

1. Your continued and substantial use of Club resources and employee time in undertaking work for your private RTO, QTC, in breach of your employment contract.

2. Your release of confidential Committee documents by email to Robert Craig, the former Treasurer' in breach of your employment contract

Significant deliberation occurred on these and a range other issues and we wish to advise that your continued employment was not supported. Upon service of this letter, you are to cease employment immediately.

All contractual entitlements for wages up to and including 7 July 2021, including accumulated leave, will be paid to you within three working days in lieu of you performing service however only upon successful completion of the following:

1. Delivery to a member of the Committee all Club owned property including the Clubs mobile phone, SIM card, access keys and any other Club owned property.

2. Divulgement of all passwords, passcodes and account access codes

Additionafly1 within one month, you are to remove all personal property from the Club's premises.

The informal arrangements with Queensland Training Centre' allowing use of the Club's premises will also cease upon service of the this letter.

On behalf of the Committee, I would like to wish you all the best for the future.

LISA STUBBS

Secretary

1. On the same day at 1.58pm, the Committee caused a Facebook post to be published to Club members and was as follows: [29]

"Gold Coast Pistol Club

25 June at 13.58

Notice:

For the information of all members. Kate Harper has commenced leave.

Sam Reynolds will act in the role as acting Manager and we ask for your patience.

All Dealership transactions have been temporarily placed on hold.

Thanks"

1. Although ratified by the Club Management Committee, Harper's employment was, and always had been, for the performance of work by Harper on behalf of the Club. Her employment was terminated by the Club through the auspices of the Club Committee.

Who made the decision to terminate Harper's employment

1. On 26 July 2021, the Club Committee sent an email to all members of the Club concerning the termination of Harper's employment. [30] It was clear from the terms of that email that the decision to terminate Harper's employment was made by the Club's management committee.
2. The 26 July 2021 email provided as follows:

Notice to Members

16th July 2021

Following last week's announcement of Kate Harper's cessation of employment as

Gold Coast Pistol Club Manager, the following information is provided to allay the

concerns of some members.

Firstly, Kate was employed as Manager on a six-monthly contract and last month this

contract was not renewed due to issues of misconduct. This decision was not taken

lightly by members of the Club's Management Committee, who are responsible as

Directors under the Corporations Act 2001 , but was made in good faith to protect the

interests of the Club, its reputation and its 1400 shareholder members.

Secondly, some members have raised the issue of Kate's accommodation. This was included in her contract as a condition of her employment. Sadly. while the Committee was prepared to consider the possibility of a periodic tenancy following her cessation of employment, this option is no longer available as Kate did not provide the committee with supporting information as requested.

Please be assured that the Committee will continue to work to ensure that the dealership, of which the Club is the licensee, and the Club as one of the largest and most diverse shooting clubs in Australia, operates to meet the needs of ALL its members and its corporate responsibilities.

To provide the utmost transparency, Acting Manager, Sam Reynolds, will stand aside as interim Treasurer and former President, Geoff Hall, has agreed to act as Treasurer until the next AGM. Geoff has been a Member of the Chartered Practicing Accountants and has over 50 years industry experience.

DISCLAIMER : This information is provided for Club members only and further distribution or publication is prohibited.

The Committee

Gold Coast Pistol Club

1. As to the relevant notice period required to be given for the termination of Harper's employment, the Court finds that the Club ought to have given a minimum of five (5) weeks' notice of termination of employment pursuant to the provisions of s. 117 of the FWA.

Accessorial liability of the second - tenth respondents

1. It was submitted on behalf of Harper that the Club contravened the provisions of s. 340(1) of the FWA by threatening to dismiss Harper from her employment and evict her from her accommodation at the Club's premises if she did not enter the new written contract of employment. It was further claimed by Harper that such action was taken because she exercised a workplace right, namely complaining about her not having been paid her proper wages and entitlements under an applicable award. The Court accepts those submissions.
2. The employment contract dated 31 December 2020 which was entered into between Harper and the Club was executed by Harper on 2 January 2021. [31] That contract was expressed to be for a 38-hour working week. [32] The work required to be undertaken by Harper, as set out in Clause 1 of the contract under the heading "Job Title and Description", was in large part the same work which Harper had performed on behalf of the Club before she signed the contract, and was stated to be as follows:

Office administration for all Club activities.

Co-ordination of firearms dealership activities.

Co-ordination of contractors and suppliers.

Co-ordination of maintenance and cleaning and the administration staff and volunteers.

Preparation of daily financial and monthly activities and reports, and

Facilitation of after-hours contact by the Club's security alarm monitoring service.

1. It is of note that in Clause 1 of the contract under the heading "Commencement Date and Term", there was no limitation placed on the term of Harper's employment. The contract provided as follows:

"1. The Employee will commence permanent full-time employment with the Employer on the 6th day of January 2021 (the Commencement Date).

(bold inserted)

1. It was submitted on behalf of Harper that the very terms of the contract constituted an admission by the Club that the role previously performed by Harper was a full-time role, warranting attendant remuneration. It was further submitted that the written contract terms did not comply with minimum requirements of the Amusement Award in any event. The Court accepts those submissions.
2. The decision to terminate Harper's employment with the Club was the collective decision of each member of the Club's Management Committee.
3. It was submitted on behalf of Harper that the second to tenth respondents were "involved in the contravention" within the meaning of s. 550(2) of the FWA, and that because of the provisions of s. 550(1) of the FWA, the second to tenth respondents are taken to have likewise contravened the FWA.
4. However, apart from contraventions relating to non-compliance with the relevant Amusement Award, there were two factual scenarios which gave rise to separate contraventions of provisions of the FWA. The first was the involvement of each of the second - ninth respondents in the coercion of Harper which resulted in her execution of the written contract of employment. The second was the involvement of each of the second - tenth respondents in the ongoing underpayment of Harper's wages between 6 January 2021 and 7 July 2021, and the non-payment of entitlements due to Harper upon her termination.
5. As to the first, it must be appreciated that Harper was in a vulnerable position vis a vis the Club. Harper was living on Club premises in a residence provided for her occupation by the Club. She was elderly and had limited life options open to her. The Court finds that Harper was pressured into signing the written contract because she had elevated her complaints about not being paid properly as required by the relevant award. It was of no moment that Haper had erroneously asserted that she was entitled to be paid under the Clubs Award.
6. As earlier found, an auditor's report was received and accepted at each of the Club's AGMs after the holding of the 2011 AGM. That was certainly the case after 1 July 2015, as was the evidence of Illingworth. [33] The Court has no reason to doubt that Illingworth was other than a reasonable and competent auditor, and that the preparation and submission by him of the Auditor's Reports at the Club's AGMs over time between 1 July 2015 and 2021 was carried out in a systematic and professional way.
7. On 19 October 2020, the Club held its AGM. The minutes of that AGM [34] relevantly show the following:

a) Harper was thanked by the President for her management of the Club under difficult circumstances. > > b) It was moved that the Auditor's Report for the Club be accepted, and that motion was carried. > > c) Steve Flori was re-elected President unopposed.

8. The Court has taken judicial notice of the fact that Auditor's Reports received and accepted at recreational club AGMs, such as the AGMs conducted on behalf of the Club, routinely set out in an Auditor's Report the wages and other monetary emoluments received by significant Club employees over a financial year. [35]
9. In the case of the Club Committee Members who are respondents to the proceeding, other than Reynolds, it would have been obvious to them from their participation in Committee meetings, and from a reading of the Auditor's Reports, that Harper was not paid anything approaching the amount of the wage properly required to be paid to her under the relevant Award. The fact that each of the respondents elected not to give evidence at trial elevates the plausibility of Harper's claims that the second - ninth respondents knew that she was being underpaid. A sub-committee consisting of Mr Flori, Ms Stubbs, Mr McNiven and Ms McKenna was even convened to consider how Harper's underpayment was to be addressed. [36] It is relevant, though, that Ms McKenna resigned from the sub-committee because she was a friend of Harper's. The email trail between Flori, Craig, and other members of the Committee who are respondents to the proceeding was telling. [37]
10. Further, the Court accepts the evidence of Robert Craig that he regularly raised the question of Harper's underpayment of wages at Committee meetings at which each of the second - ninth respondents were in attendance over time. That is not to hold that each of those respondents attended each and every committee meeting from the commencement of their respective tenures as Committee members, but the Court finds from a reading of the relevant committee meeting minutes annexed to the affidavit of Clough that such respondents were each in attendance at most of such Committee meetings, and that they would have been made aware by Craig, during such meetings that they did attend, that he considered that Harper was not being paid what was required to be paid to her under an applicable Award.
11. Save in respect of meal breaks, penalty rates, and the tenth respondent Reynolds, and with the further reservation that Harper ought properly to have been paid under the Amusement Awards since 26 July 2015, Harper has made out her contraventions case against the Club and the second - ninth respondents, as pleaded at [59] - [86A] of the SOC, that she:

a) Was not paid at least the minimum hourly rate under the award for her job description; > > b) Was not properly paid overtime or penalty rates or recall to duty allowances where applicable; > > c) Was not properly paid annual leave; > > d) Was not properly paid long service leave; > > e) Was not properly paid superannuation; > > f) Had adverse action taken against her for a prohibited reason.

12. Reynolds did not join the Committee until 25 January 2021. He was not relevantly involved in the contraventions by the Club associated with Harper not being paid pursuant to the relevant award up until the time he joined the committee, nor was he involved in the taking of adverse action by the Club in coercing Harper into signing the written contract of employment in early January 2021.
13. The second - ninth respondents were so involved. They each were, directly or indirectly, knowingly concerned in, or party to, the contravention of the provisions of s. 340 of the FWA leading up to Harper's execution of the written contract. Save in respect of Reynolds, the Court accepts the submissions of the applicant as made at [3] - [7] of the Applicant's Submissions in Reply filed on 25 March 2025.
14. It was submitted on behalf of Harper, in the alternative, that even if some members of the management committee did not actually appreciate that Harper was not being paid in accordance with an applicable Award, that their exposure to "a combination of suspicious circumstances and failure to make inquiry" was sufficient to "sustain an inference of knowledge of the actual or likely existence" of Harper not being paid in accordance with an Award. The Court accepts such submission.
15. In Pereira v Director of Public Prosecutions, the High Court (per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) [38] held as follows:

"Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness."

1. The Court has respectfully had regard to the judgment of Katzmann J in Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (no. 3) [2023] FCA 201 at [252] - [267] where Her Honour considered the question of accessorial liability, as relevant to the positions of the committee members in this case, as follows:
   1. Similarly, in order to be knowingly concerned in, or a party to, a contravention within the meaning of para (c), a person must know the essential elements of the contravention: Yorke v Lucas at 667, 670 (Mason ACJ, Wilson, Deane and Dawson JJ).
   2. Actual knowledge is required: Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 505 (Wilson, Deane and Dawson JJ), followed in Yorke v Lucas. It is not enough that the person ought to have known. Knowledge may not be imputed or presumed: Giorgianni at 483 (Gibbs CJ), 505 (Wilson, Deane and Dawson JJ). Still, proof of actual knowledge may be established by either direct or circumstantial evidence. See, for example, Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [231] (White J). Where the alleged accessory is wilfully blind, that is to say, has deliberately shut their eyes to what was going on or deliberately abstained from inquiring, a court may infer actual knowledge: Giorgianni at 488 (Gibbs CJ), 507-8 (Wilson, Deane and Dawson JJ). But nothing short of knowledge will suffice. In South Jin at [232] White J said:

The conclusion that a person has actual knowledge of the elements of a contravention by reason of that person's knowledge of suspicious circumstances coupled with a deliberate failure to make enquiries which may have confirmed those suspicions requires consideration of the person's knowledge of the matters giving rise to the suspicion, the circumstances in which the person did not make the obvious enquiry and the person's reasons, to the extent that they are known, for not having made the enquiry. It is not every deliberate failure to make enquiry which will support the inference of actual knowledge.

1. In neither case, however, is it necessary that the person knows that the essential matters or elements constitute a contravention. Put another way, it is unnecessary that the person appreciates that the conduct in question is unlawful: Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] (White J); Gore v Australian Securities and Investments Commission [2017] FCAFC 13; (2017) 249 FCR 167 at [15], [38] (Dowsett and Gleeson JJ); at [165] (Rares J). As Dowsett and Gleeson JJ observed in Gore at [15] and [38]:

[I]t is settled that in general, it is not necessary to prove knowledge of the law, or knowledge that a particular fact situation attracts legal consequences. That proposition applies to the proof of both principal and accessorial liability ...

[N]either Giorgianni nor Yorke v Lucas required that it be proven that an alleged accessory knew of the relevant legal provisions which rendered the principal contravener's conduct unlawful. Those decisions establish only that it must be proven that the alleged accessory knew the relevant factual matters leading to illegality ... To require more would be inconsistent with the long-established proposition that ignorance of the law is no defence.

1. Further, in EZY Accounting at [34] the Full Court endorsed my observation in Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; 152 ALD 209 at [957] that, where an alleged accessory is aware of a system producing certain outcomes which constitute contraventions, the person need not know the details of each of those outcomes in order to have the requisite knowledge. See also Australian Communications and Media Authority v Mobilegate Ltd a company incorporated in Hong Kong (No 8) [2010] FCA 1197; (2010) 275 ALR 293 at [172] (Logan J). Thus, as I explained in Grouped Property Services, a person who knows that an employee worked on weekends but does not know which weekends or the number of hours worked can be knowingly concerned in the employer's failure to pay weekend penalty rates.

2. In EZY Accounting the Full Court was concerned with the question of the involvement of an accountant (Mr Lau) in contraventions of s 45 of the FW Act by an employer (Blue Impression Pty Ltd, a fast food chain). The contraventions relevantly related to the failure to pay the minimum hourly rates, Saturday and Sunday loadings, as well as public holiday penalty rates; as required by the Fast Food Industry Award 2010. The Full Court concluded at [34] that:

It was open to the primary Judge to hold that Mr Lau was "knowingly concerned" in the contravening conduct of Blue Impressions based, as it was, on a system of payment where adult employees were invariably paid a flat hourly rate of pay which was below the Award base rate applicable for ordinary hours of work and insufficient to meet any additional requirement made by the Award for a penalty rate to be paid where applicable.

257. That was because, as the Full Court went on to explain:

Mr Lau knew that system of payment; he knew that the Award provided for a base rate; and he knew it contained provisions for the payment of penalty rates whenever applicable. He also knew that the inevitable result of his facilitation of Blue Impression's system would be that employees working ordinary hours would be underpaid the Award base rate of pay and that employees entitled under the Award to any additional penalty payments would not be paid the applicable penalty. That knowledge and involvement was sufficient to implicate Mr Lau in Blue Impression's contraventions of s 45 of Fair Work Act irrespective of the fact that Mr Lau did not know about the particular employment of Mr Zheng, or the particular hours that he worked or the particular provisions in the Award which gave rise to Mr Zheng's entitlement to be paid a particular penalty rate.

1. In Potter v Fair Work Ombudsman [2014] FCA 187 at [80]-[81] Cowdroy J held that to be an accessory to an underpayment contravention, the alleged accessory must have known that the particular award that was contravened applied to the relevant employees. In Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [44] Besanko J expressed the (obiter) opinion that there was "a good deal of force" in the alleged accessory's submission that it was necessary for the Ombudsman to establish that it had actual knowledge, amongst other things, that the Cleaning Services Award 2010 applied to the employment of the relevant employees.

2. In Devine Marine at [188], in the absence of full argument (the respondents were unrepresented), White J followed Potter and Al Hilfi "because knowledge that there is an award which is applicable which prescribes minimum rates or entitlements is a factual element necessary for the establishment of the accessory's intention". Later, at [194], he clarified that it was not necessary for the Ombudsman to establish that the alleged accessory knew the name of the particular award that applied; it was sufficient for the Ombudsman to establish that he knew that "an award" was applicable.

3. In Grouped Property Services at [1019], I indicated that I was inclined to agree with the Ombudsman's submission that the test set by Potter was too high. I expressed the opinion, which was obiter in that case, that where the contravention is a failure to pay award rates, an accessory must know what rates are being paid but need not know that the rates which were paid were below the rates prescribed by the applicable award, since an accessory does not have to appreciate that the conduct is unlawful.

4. In Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340; at [126]-[128] Flick J referred to these authorities in the context of a case involving contraventions of s 50 of the FW Act, which provides that a person must not contravene a term of an enterprise agreement. His Honour said at [128]:

Either approach, with respect, exposes a difficulty. Where the contravention in question is a contravention of s 50, that section does not require the person contravening a term of an enterprise agreement to have any knowledge of the existence of an enterprise agreement and does not require knowledge of the term being contravened or the fact that the act of contravention is in fact contravening conduct. If the "elements" of s 50 do not encompass those matters, it is - with respect - difficult to see why an accessory need have any greater knowledge. For a person to contravene s 50, it is sufficient to prove that conduct took place which was in fact a contravention of a term of an enterprise agreement. For the purposes of accessorial liability, all that need be proved is that the accessory had knowledge of the conduct.

1. With respect to Flick J, the view I expressed in Grouped Property Services was to the same effect as his.
2. In EZY Accounting the Full Court discussed these authorities at [11]-[15]. Unhelpfully for present purposes, however, it did not decide which approach was correct as it was unnecessary to do so (at [40]). Mr Fredericks of counsel, who appeared for Ms Handoko and Ms Parmenas, argued that the approach taken by White J in Devine Marine should be followed. He submitted that the Ombudsman must establish that the alleged accessories were at least aware that an award applied and that the amounts that were paid to the Employees were less than the rates prescribed by the award. I adhere to the view I expressed in Grouped Property Services. For more abundant caution, however, I will proceed on the basis Mr Fredericks urged.
3. Whatever the extent of the knowledge required, however, mere knowledge is not enough. To be knowingly concerned in, or party to, a contravention, the alleged accessories must also have engaged in conduct that implicates or involves them in the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 59 AILR 100-686; 164 IR 299 at [26] (Tamberlin, Gyles and Gilmour JJ); South Jin at [227].
4. On the other hand, while knowledge of a contravention is a necessary, but not sufficient, basis upon which to find that a person was knowingly concerned in the contravention, it is not necessary that the alleged accessory physically did anything to bring about the contravention. It is sufficient if that person, by what they said and agreed to do, or omitted to say or do, became associated with, and in that way involved in, the conduct constituting the contravention. See Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 144; 154 IR 228 at [29] (Le Miere J); at (Lee J, with whom Street CJ and Finlay J agreed at and respectively); at -[119] (Flick J); ; 157 IR 32 at (Middleton J).

1. In Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27; (2024) 98 ALJR 1021, the High Court was there dealing with the question as to whether, and to what extent, a person who has either directly or indirectly been knowingly concerned in a contravention of the provisions of the ACL, had intentionally participated in conduct that implicated or involved them in the primary contravention. It was submitted by Senior Counsel for Harper that in the respective judgments of the Court, the very wording used in s. 550(2)(c) of the FWA had been considered by the High Court in the same context as was the use of such language in the ACL. Respectfully, the relevant parts of the judgments of the members of the High Court of relevance in this matter were summarised as follows:

Gageler CJ and Jagot J (Gleeson J agreeing)

The question whether conduct is unconscionable or not is one of characterisation, not fact. To be knowingly concerned in a contravention, it is only necessary to prove that an accessory knew the essential matters that together made up the conduct ultimately characterised as unconscionable, not that he or she knew that it could, let alone would be so characterised. The relevant distinction is between the essential matters constituting the contravention (be they facts, circumstances or states of mind) and the character, quality, nature or status of those matters for the purpose of characterising the conduct as the statute requires. For accessorial liability, knowledge of the former is required but knowledge of the latter is not. [12], [82], [89], [93] and [310]

Gordon J (Steward J)

To be knowingly concerned in unconscionable conduct under the Australian Consumer Law, an accessory must intentionally participate in conduct that implicates or involves them in the primary contravention and have knowledge of essential facts constituting the contravention. Unconscionability under s 21 is a conclusion based on, or a characterisation of, the totality of the circumstances established on the evidence. It is not a subjective element requiring separate proof. An accessory must have knowledge of all the essential facts or circumstances showing that the principal committed the primary contravention, and that the accessory participated in it. An accessory is not required to know that the conduct was unconscionable at law. [146], [147], [149], [150], [154], [189]

Edelman J

Intention to participate in conduct amounting to the essence of a primary offence or contravention is a central requirement before liability for one person's offence or contravention can be attributed to another as accessory. The intention that must be held by an accessory is best expressed as an intention to participate in the essence of the conduct comprising the offence or contravention. Before the accessory can intend so to participate, they must know all the facts necessary to form the intention. This does not require knowledge of every fact required for proof of the primary offence or contravention, only those facts necessary to intend to participate in the essence of it. [200], [201], [203], [265], [266], [279]

Beech-Jones J

While a party "involved" or 'knowingly concerned' in a contravention of s 21 must possess knowledge of essential facts of the contravention even if the principal does not, that does not mean that in all cases the intention or knowledge of the accessory will differ from the principal's. [364], [365], 367], [368]

1. The Court finds that each of the judgments in Productivity Partners supports the finding that each of the second to ninth respondents had been relevantly involved in the contraventions of the civil remedy provisions as found by the Court for the period from 26 July 2015 until the date of the execution by Harper of the written contract on or about 2 January 2021.
2. The Court further finds that each of the second - ninth respondents had been involved in the contraventions as found by the Court from on or about 6 January 2021 until 7 July 2021. The tenth respondent Reynolds had likewise been so involved from the time he was appointed to the committee on 25 January 2021 until 7 July 2021. Relevantly, each of the second - tenth respondents had knowledge of the essential matters constituting the contraventions. It was their obligation to ensure that the affairs of the Club were managed according to law. Each of them failed to do so. They could not shield themselves from liability for the Club's contraventions relating to its underpayment of Harper's wages by turning a blind eye to what was an obvious underpayment. Neither could the second - ninth respondents so shield themselves from the Club's contravention relating to Harper being coerced into entering into the written contract with the Club in early January 2021.
3. As to the second, it was pleaded at [47] and at [55A] - [58] of the SOC that there was an obligation on the part of the Club to pay at least a minimum hourly wage at a nominated rate. It was further pleaded that from the date of Harper's commencement of employment with the Club under the written contract on 6 January 2021 until the date of the termination of Harper's employment on 7 July 2021, Harper was only paid the sum of $24.39 per hour, such amount being less than that which she was required to be paid. The Court finds that such claim has been made out.
4. To the extent that Harper was so underpaid, she was entitled to compensation. For the same reasons as the Court has held the second - ninth respondents accessorily liable for the Club's contraventions in respect of the ongoing underpayment of Harper's wages after 26 July 2015, each of the second - tenth respondents (including Reynolds after 25 January 2021) are found to have been accessorily liable for the Club's contraventions of the provisions of the FWA which required the Club to appropriately pay Harper her wages according to law under the applicable award as and from 6 January 2021 until 7 July 2021.
5. The Court further finds that the Club contravened the provisions of s. 117 of the FWA because it had failed to give to Harper the relevant five (5) weeks' notice of the termination of her employment.

Were the contraventions part of a single course of conduct

1. Section 557 of the FWA relevantly provided as follows:

557 Course of conduct

(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a) the contraventions are committed by the same person; and

(b) the contraventions arose out of a course of conduct by the person.

(2) The civil remedy provisions are the following:

(a) subsection 44(1) (which deals with contraventions of the National Employment Standards);

(b) section 45 (which deals with contraventions of modern awards);

(c) section 50 (which deals with contraventions of enterprise agreements);

(d) section 280 (which deals with contraventions of workplace determinations);

(e) section 293 (which deals with contraventions of national minimum wage orders);

(f) section 305 (which deals with contraventions of equal remuneration orders);

(g) subsection 323(1) (which deals with methods and frequency of payment);

(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);

(i) subsection 325(1) (which deals with unreasonable requirements on employees to spend or pay amounts);

(ia) subsection 325(1A) (which deals with unreasonable requirements on prospective employees to spend or pay amounts);

(j) subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.);

(k) subsection 421(1) (which deals with contraventions of orders in relation to industrial action);

(l) section 434 (which deals with contraventions of Ministerial directions in relation to industrial action);

(m) subsection 530(4) (which deals with notifying Centrelink of certain proposed dismissals);

(n) subsections 535(1), (2) and (4) (which deal with employer obligations in relation to employee records);

(o) subsections 536(1), (2) and (3) (which deal with employer obligations in relation to pay slips);

(p) subsection 745(1) (which deals with contraventions of the extended parental leave provisions);

(q) section 760 (which deals with contraventions of the extended notice of termination provisions);

(r) subsection 785(4) (which deals with notifying Centrelink of certain proposed terminations);

(s) any other civil remedy provisions prescribed by the regulations.

(3) Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.

1. Sections 44 and 45 of the FWA are sections to which s. 557 applies as they are respectively listed in s. 557(2) as sections to which s. 557(1) applies.
2. It was submitted on behalf of Harper that the underpayment of wages, the non-payment of overtime, the non-payment of annual leave, and the non-payment of superannuation were each course of conduct contraventions. The respondents made no relevant submissions on point. The Court accepts the submissions on the question of course of conduct contraventions made on behalf of Harper.
3. The test for determining whether conduct constituted a course of conduct for the purpose of s. 557 of the FWA was discussed in Construction, Forestry, Mining and Energy Union (CFMEU) v Cahill [2010] FCAFC 39 at [39] - [41] where it was said:
   1. As the passages in Williams [2009] FCAFC 171; 262 ALR 417 explain, a "course of conduct" or the "one transaction principle" is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.

40 Williams [2009] FCAFC 171; 262 ALR 417 did not suggest otherwise. In Williams [2009] FCAFC 171; 262 ALR 417, the issue was not whether the trial judge had in fact considered whether the offences were to be characterised as arising from a single course of conduct, but whether the trial judge erred in his approach to that question. The trial judge concluded that the conduct should not be viewed as a single course of conduct because although Mr Mates (who was also a party in that case) "in a sense" had engaged in a single course of conduct, his Honour found that the conduct had two elements which s 43 of the Act recognised as separate and which were qualitatively distinct in the impact his Honour presumed they had on the third party. The appellants submitted in Williams [2009] FCAFC 171; 262 ALR 417, and the Full Court accepted, that the trial judge erred in his approach to the question of the single course of conduct. In particular, the Full Court concluded that the trial judge should not have treated the fact that the conduct had two elements which s 43 of the Act recognised as separate as a disentitling factor in deciding if the two offences were properly to be characterised as arising from the one transaction or a single course of conduct.

1. As noted above (see [15]), the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the Court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a Court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion: Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [3] - [4] and [34] and Attorney-General v Tichy (1982) 30 SASR 84 at 92 - 93. It is a tool of analysis (Tichy 30 SASR 84 at 93) which a Court is not compelled to utilise: Royer v Western Australia [2009] WASCA 139 at [21]- [34] and [153]-[156].

1. Further, having had regard to the provisions of s. 557A(2) of the FWA as it then was, it was relevant that notwithstanding clear knowledge on the part of a number of committee members from as early as 2009, the Club failed to pay Harper what was due to her according to law. The lack of diligence on the part of the Club's management committees to ensure that Harper was paid properly over a long period of time was astounding.

Were the contraventions serious contraventions pursuant to s. 557A of the FWA after it's enactment on 15 September 2017

1. Section 557A of the FWA came into operation on 15 September 2017. At that time, the section as enacted relevantly provided as follows:

557A Serious contravention of civil remedy provisions

(1) A contravention of a civil remedy provision by a person is a serious contravention if:

(a) the person knowingly contravened the provision; and

(b) the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

Note: For the liability of bodies corporate for serious contraventions, see section 557B.

Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full (even if the employer does not know the exact amount of the underpayment) and that contravention is part of a systematic pattern of conduct by the employer. The systematic pattern of conduct of the employer may relate to more than one employee and may consist of different contraventions.

Systematic pattern of conduct

(2) In determining whether the person's conduct constituting the contravention of the provision was part of a systematic pattern of conduct, a court may have regard to:

(a) the number of contraventions (the relevant contraventions) of this Act committed by the person; and

(b) the period over which the relevant contraventions occurred; and

(c) the number of other persons affected by the relevant contraventions; and

(ca) the person's response, or failure to respond, to any complaints made about the relevant contraventions; and

(d) except if the provision contravened is section 535 - whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and

(e) except if the provision contravened is section 536 - whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions.

(3) Subsection (2) does not limit the matters that a court may have regard to.

(4) Subsection 557(1) does not apply for the purposes of determining whether the person's conduct was part of a systematic pattern of conduct.

(5) Subsection (4) does not otherwise affect the operation of subsection 557(1) in relation to serious contraventions of civil remedy provisions.

(5A) A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

(a) the principal's contravention was a serious contravention; and

(b) the involved person knew that the principal's contravention was a serious contravention.

Application for a serious contravention order and alternative orders

(6) If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person's application under subsection 539(2) must specify the relevant serious contravention.

(7) If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:

(a) is not satisfied that the person has committed a serious contravention against that provision; and

(b) is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.

1. In the written submissions filed on behalf of the respondents on 28 November 2024, when objecting to any claim for serious contraventions being made against the second - tenth respondents, it was submitted by lead Counsel for the respondents that: [39]

"It appears Ms Harper does not have an explanation as to why she expressly told the Court she would not rely on s 557A(5A) during the application but now still invites the Court to make a finding that the Second to Tenth Respondents were involved in serious contravention."

1. The Court has read the transcript of the hearing of the application filed on behalf of Harper to amend the then Further Amended Statement of Claim, and to replace it with a Third Amended Statement of Claim (the SOC). That hearing took place on 22 May 2024. Nowhere in the transcript of such hearing was it recorded that Senior Counsel for Harper had submitted that at trial a case would be advanced that the second - tenth respondents had committed serious contraventions, nor was it submitted that the provisions of s. 557A(5A) would apply to them. Indeed, at [20] - [22] of the Harper reply submissions filed in support of the application to amend heard by the Court on 22 May 2024, it was made clear that no such claim would be made at trial against the individual respondents.
2. It was also made clear that the claimed liability of the second - tenth respondents would be accessorial liability pursuant to the provisions of s. 550 of the FWA. That was what was pleaded. Those submissions were as follows:
   1. Paragraphs [46]-[47] of the Respondents' submissions appear to misapprehend the Applicant's case. They appear to proceed on the assumption that the Applicant alleges that each of the Second to Tenth Respondents was knowingly concerned in the serious contraventions, and she therefore must prove, pursuant to s 557A(5A) that each of them knew that the principal's contravention was a serious contravention.21
   2. The Respondents appear to have misapprehended the Applicant's case. The Applicant alleges (and has always alleged) that the Second to Tenth Respondents were involved in the First Respondent's contraventions within the meaning of s 550, and therefore are taken to have themselves contravened the Fair Work Act. The TASOC alleges that the First Respondent's contraventions are serious contraventions within the meaning of s 557A. However, the TASOC does not allege that the Second to Tenth Respondents have themselves committed any serious contravention by knowing involvement in the First Respondent's serious contravention. The Applicant does not rely upon s 557A(5A) and that provision is not relevant to her claim.
   3. The specific pleadings complained of in paragraph [49] do not expand the Applicant's case. Rather, they more specifically plead the elements of the existing allegation that, by operation of s 550, the Second to Tenth Respondents have themselves contravened the Fair Work Act. They are matters that the Respondents must always have known would be in issue. The investigations the Respondents now complain they must undertake would have been required regardless of any allegation of a serious contravention by the First Respondent. The need to investigate whether there has been a "pattern of conduct" for the purposes of s 557A does not realistically expand the scope of the investigation because the alleged pattern relates only to the Applicant.
3. Accordingly, the Court does not intend to make any finding that the second - tenth respondents had committed serious contraventions pursuant to the provisions of s. 557A(5A) of the FWA.
4. As to the Club's alleged liability, it was firstly submitted by Senior Counsel on behalf of Harper that there were five contraventions which were serious contraventions committed by the Club, namely those contraventions in relation to minimum wages, overtime, penalty rates, meal breaks and superannuation. It was submitted that the annual leave contravention was a "normal contravention", and that long service leave was a contravention under a different Act. [40] As to the latter two, the Court accepts such submissions.
5. It was further claimed that the five (5) identified contraventions had, since 15 September 2017, constituted serious contraventions of the FWA in accordance with Schedule A of the applicant's written submissions filed on 5 November 2024. The Court accepts such submissions in respect of underpayment of wages, the non-payment of overtime and the non-payment of superannuation.
6. Section 45 of the FWA provided that a person must not contravene a term of a modern award. It was a civil remedy provision by virtue of s. 539 of the FWA.
7. It was held in EZY Accounting 123 Pty Ltd v Fair Work Commission [2018] FCAFC 134; (2018) 282 IR 86 at [9] per Flick, Bromberg and O'Callaghan JJ that:

"9. Section 45, it may be noted, is made out simply by reference to the fact of contravention. It is not necessary to prove that the person charged with the contravention either knew of the existence of the award or the term which was contravened. Nor is it necessary to prove any intention to contravene the modern award."

1. Section 46(1) of the FWA provided that a modern award does not impose obligations upon a person, and a person does not contravene a term of a modern award, unless the award applied to the person.
2. Section 539(2) of the FWA, by Column 4, provided that the maximum penalty for a serious contravention was 600 penalty units, or otherwise, 60 penalty units for a contravention which was not serious.
3. Subject to s. 545(5) of the FWA, s. 545 empowered the Court to make any order that the Court considered appropriate if the Court was satisfied that a person has contravened a civil remedy provision.
4. Section 546 of the FWA empowered the Court to make orders for the payment of such pecuniary penalty as was considered appropriate if the Court was satisfied that a person had contravened a civil remedy provision.
5. The Court has found that Harper has made out the course of conduct contraventions in relation to underpayment of wages, overtime, and the non-payment of superannuation. Such contraventions occurred over a long period of time and were systematic. The contraventions were known to Steve Flori at least since December 2016 when Craig brought Harper's underpayment of wages and the Club's non-compliance with award requirements to his attention. Flori was president of the Club at the time in December 2020 when Harper was being coerced into signing the written contract which had been presented to her on a take it or leave it basis. The Court finds that Flori was the one committee member whose motives were imputed to those of the Club when the Club continued to underpay Harper up until the time that the Club took adverse action against her for exercising a workplace right of complaint about such underpayment over a long period of time.
6. As to Flori's involvement in both the ongoing underpayment of Harper and the taking of adverse action against her, the Court has had regard to Flori's shameful involvement in the purposeful mischaracterization, in the 16 November 2020 committee minutes, that it had only "recently" come to the committee's attention that Harper had been underpaid. The relevant part of those 16 November 2020 committee minutes relating to Harper were as follows: [41]

Wages

Following Kate's representations to the Club's Treasurer, and on the advice of the Club's Accountant, it was recently revealed that the Committee is obliged by law to pay Kate a wage. This being the case, a package has been developed that is demonstrably fair, in line with the National Employment Standard, and aligns with the Manager's role at the Gold Coast Pistol Club. Although Kate had proposed she be employed under the Licensed Clubs Award, this award was not relevant to this Club or to Kate's qualifications. An Employee Performance Sub-Committee, comprising LS, RM and VM, has been formed to manage the transition from the current arrangements to a contract. After some discussion by the remaining Committee members (JM and RC had left the meeting by this time), it was agreed that, with Kate's duties and qualifications, she should be entitled to the hourly rate of $24.39 with additional percentages and multiples for work hours on Saturdays and Sundays. Any contract agreed upon will include compulsory participation in a Performance Appraisal and Review process, in line with modern Human Resources practices. The Manager's current accommodation has been assessed by PRO Real Estate at a weekly rental of between $225 and $250 per week, which does not include utilities and Wi-Fi related accesses. A Letter of Offer is to be prepared and presented to Kate by the Sub-Committee on Saturday 21 November. This will outline that weekly rent is to be $275 a week including electricity/gas and water charges ($20), Wi-Fi including Foxtel ($20), and private use of telephone ($10). All other payments, incentives, allowances, concessions and considerations are to cease as of 1 January or sooner as the contract to be offered to Kate takes effect.

(Bold Inserted)

1. Flori signed off on the November minutes as being accurate, as he did in respect of the committee meeting minutes for December 2020. [42] The relevant discussion relating to Harper's underpayment of wages as recorded in the December 2020 committee meeting minutes was as follows:

General business

Wages

At the November meeting the Committee agreed on an amount for a wages package to be offered the Manager. This offer was put to Kate Harper on 21 November by the Employee Review Sub-Committee (RM, LS and VM) and a letter of offer signed by Kate which she subsequently withdrew on 26 November. Kate maintains that she should be engaged under the Registered Clubs Award, however SF said this award was not applicable to the Gold Coast Pistol Club, which does not meet the definition of a licensed club, or to Kate who does not meet the criteria of a club manager, nor have the requisite qualifications of a manager, under the award. SF raised the issue of Kate lobbying four Committee members for support and telling members that she is in charge of the Club and not the Committee. It was proposed that, before Kate commences working under a new contract, she be paid out for her current leave entitlements. As records were destroyed in the 2012 flood, there are no wage records or leave records. However, it was felt that $10,000 would be a generous amount to acquit her current leave entitlements and a motion to this effect was proposed. Moved: SF. Seconded: RM. Carried. A final employment offer is to be provided to Kate on 17 December and this offer will expire at 5pm on 23 December.

(Bold Inserted)

1. The Court accepts the affidavit evidence of Illingworth that he had had numerous conversations with Craig from as early as 2009, and later Steve Flori, concerning Kate's wages falling short of what was required to be paid to her under the relevant award. [43] The Court further accepts that by an email sent by Robert Craig to Steve Flori at 15.53 pm on 15 December 2016, Craig explicitly raised the issue of the underpayment of Harper's wages with him as follows: [44]

"Hi Steve

Kate raised the question of her wage at the club. She has come up with some figures as a starting point. See attachment.

I pointed out that expecting the club to pay what she currently receives plus tax payable, rent and what she is receiving from the pension is double dipping.

Based on Fair Work Ombudsman level 4 Club manager income under $500,00 and over 21 the award is $854.60 per week $44,439 a year. (There are many awards that Kate may qualify for).

Kate indicated she would accept this but we would need to work out rent payable.

Holiday pay, super etc. would be as per award.

We also pay dog insurance and food, plus cash for promotional shoots.

Kate's goal is to receive the highest wages from the club, but still qualify for a Health Care Card.

Current Wages Approx. $33,000 not including extras

Award $44,439

Wants $62,400

In theory, we are giving Kate an $11,439 pay rise rather than $29,400 she is looking for.

I feel this is fair for all parties if we go with Contract based wage package for several reasons.

1. Who else will do the job for the same price considering the number of hours to a similar standard?

2. The Club is currently legally exposed

3. Kate's bonus will increase with firearms sales.

The downside of this is

1. Other people working at the Club may feel they should be paid more?

2. With bonus removed, Kat may not feel she needs to work as hard

If we do go ahead start date 1st January 2018. We can back date paperwork after January committee meeting if necessary. Damien from APS (Auditors) will oversee to ensure the club is not exposed.

Looking for your thoughts.

Robert"

(Bold and Underlining Inserted)

1. Steve Flori replied to Craig's email at 4.14 pm (16.14 pm) on the same day, asking Craig to keep the contents of their respective correspondence confidential. The email was as follows:

"From: Steve Flori

Date: 15 December 2016 at 4:14:37 pm AEST

To: Robert Craig - Gold Coast Pistol Club

Subject: Re: Kates Wages

My initial thoughts are putting Kate on wages will reduce incentive as she gets older to perform in areas where she currently receives commission. We will be replacing her 'commissions' with a wage at least in part.

Can we keep this confidential, ie do not discuss this further with Kate, at the time until I can sit down with you in person and work through it

Cheers

Sent from my iPad"

(Bold Inserted)

1. By reason of the ongoing failure on the part of the Club to properly pay Harper what was duly payable to her at law after 15 September 2017, the Court finds that such conduct evidenced a systematic pattern of poor behaviour which constituted a serious contravention of the provisions of s. 557A of the FWA. Such conduct continued for the whole of the period from 15 September 2017 until 7 July 2021. The Club's contravention was at the more serious end of the scale.

1. During her cross-examination concerning whether she had raised the issue of her wages as early as 2006 with any of the directors / members of the Club committee, Harper's evidence was as follows: [45]

But you didn't ask to get paid, did you?---No, I didn't.

So you were there as a volunteer.

HIS HONOUR: I'm sorry, when you say, no, you didn't, what do you mean by that?---I thought they would pay me. I - I was given the job as the administrator, and I was told it was for full time. At that time I was still getting the $250. I thought once I had been given the administrator role, it was noted in publications that I was the new administrator; it was full time, and full-time employment to me is you get paid, but I didn't know how to broach the subject to - to get the wage. So I kept hoping that, yes, it would happen. In 2008, when Robert Craig became the treasurer, he discussed it with Bob Schukraft and they said, yes, they would look into it, and they would fix it. So I was quite happy to keep going like I was going, because they were going to fix it. And then in 2009, John Illingworth talked to Bob Schukraft again about my wages, and again, "Yes, we will fix it." And - so I just kept going, knowing that I had known these people for a long time and they were going to fix it. I think in 2013, even Rick Flori was asked to look at my wages. Robert - - -

1. The Court finds that from 2009 - 2010 onwards, Harper knew that she had an enforceable right to bring a claim against the Club for not being paid under an Award. After that time, she was regularly raising the issue of the underpayment of her wages with committee members, most notably Craig. The Court finds, however, that Harper took no step to enforce any of her rights until the commencement by her of the current proceeding. She sat on her heels.
2. The Court finds that in circumstances where Harper knew that she had a legal entitlement to enforce her rights concerning underpayment for work performed by her on behalf of the Club, and where she took no steps to enforce those rights, she had acquiesced in the wrong which she claimed had been committed against her, thereby extinguishing her right to claim that the acts of the Club in failing to pay her appropriately were unconscionable.

1. Annexure VJC 51 to the affidavit of Mr Clough at pp. 4805 - 4808 filed on 23 December 2022 was a copy of the minutes of the management committee meeting of the Club held on 17 December 2018. Present at that meeting were Steve Flori (President), Lisa Stubbs (Secretary), Robert Craig (Treasurer) and Committee Members Peter Roper, Barry Hollingsworth and Bruce Brown.
2. As was the case in relation to other minutes of management committee meetings disclosed by the Club pursuant to orders of the Court requiring such disclosure, annexure VJC 51 set out the Club's then financial position under the heading "Treasurer's Report".
3. Under the heading "General Business", the question of Harper's ongoing occupation of the Club Cottage after her retirement was relevantly recorded in the minutes as follows:

"Kate's retirement residence

This discussion of arrangements for Kate's retirement and the possibility of her remaining at the Club as an on-site caretaker and during the transition of a new Manager followed on from previous Committee meetings. It was proposed that, upon retirement, the Club Manager be retained as the on-site premises caretaker and be provided with on-site accommodation at a rate to be determined based on market assessment and the determination of the Committee. Moved: RC. Seconded: PR. Carried."

1. The Court accepts as truthful Harper's pleaded case, at [18] - [21] of the SOC, namely that in or about 2007 it was agreed that in consideration of Harper assuming the additional duties as caretaker, she would be provided accommodation at the Club's premises, at a cost of $100 per week. So much was not in dispute at trial.
2. In December 2018 the accommodation agreement was varied in the terms as expressed in the minutes of the December 2018 committee meeting last referred to. The Court accepts as truthful that evidence of Harper as set out at [48] - [58] of her affidavit filed on 4 August 2021. [46] Such evidence was as follows:

Purported variation of the Right to Live in the Cottage for Life

1. On about 17 December 2020, some ten years after being granted the right to live in the Cottage for my life and paying $100 a week for that right, the Pistol Club, through the Third Respondent, Fourth Respondent and Ninth Respondent, handed to me an 'offer of employment contract' which included the following clause:

Accommodation and amenities:

The Club offers your ongoing periodic residential tenancy as part of your contract if you decide to remain in residence on the Club's premises:

Rental weekly inclusive of utilities: $275 per week.

1. The offer of employment contract is referred to in paragraph [8] of this affidavit.
2. I was aware that in around early December 2020, the Pistol Club had engaged a real estate agent from PRO Realty who attended the Cottage to undertake a rent assessment. The realter who attended said to me during that attendance words to the effect that the dwelling "was worth $200 per week all up".
3. I did not appreciate the words "periodic tenancy" stated that the employment contract sought to vary my right to live in the Cottage for my life that was agreed to with me in 2010, and I thought that the only change to my occupation of the Cottage was an increase in the weekly rent and utilities.
4. I was not provided with a residential tenancy agreement or any written document besides the 'offer of employment contract'.
5. At the time that the 'offer of employment' was provided to me I was informed by the Third Respondent that the offer was the final offer that would be made to me. A copy of the email from the Third Respondent to me that stated the offer to be a final offer is at pages [3] to [4] of Exhibit "KH-1 ".
6. I understood the reference to final offer to mean that if I did not accept the offer, I would be immediately terminated.
7. Later on or around 6 January 2021 I executed the 'offer of employment'.

Notice to Leave

1. On 25 June 2021 and when the Pistol Club terminated my longstanding employment, the Pistol Club also provided to me a Notice to Leave (Form 12). A copy of the letter dated 25 June 2021 and the Notice to Leave (Form 12) is located at pages (5) to [7] of Exhibit "KH-1 ".
2. The Notice to Leave stated that my tenancy was terminated because my employment with the Pistol Club was terminated and that I was required to vacate the Cottage by 4 August 2021.
3. I was surprised when I received the Notice to Leave as I believed my occupation of the Cottage was not dependant on my continued employment with the Pistol Club and as I have never signed any agreement to periodically reside at the Cottage.

1. The Court finds that Harper has made out her case in relation to the "New Contract" as pleaded at [41] - [41A] of the SOC. Paragraphs [41] - [41A] of the SOC were as follows:

41. On around 2 January 2021, the Applicant and the Pistol Club entered into a new contract of employment (the New Contract).

41A The New Contract relevantly contained terms to the following effect:

41A.1 The Applicant's job title would be "Club manager and caretaker";

41A.2 The Applicant would be paid an hourly wage of $24.39 and additional percentages and multiples for work hours on Saturdays and Sundays as set out in the New Contract.

41A.3 The Applicant's normal hours of work would be 38 hours per week being 7:30 am to 5:00 pm on Wednesday, 7:30 am to 4:00 pm on Thursday and Friday, 7:30 am to 3:00 pm on Saturday and 8:00 am to 2:30 pm on Sunday.

41A.4 The commencement date of the contract would be 6 January 2021.

41A.5 The termination date of the contract would be 6 months after the commencement date.

41A.6 The Applicant's occupation of the Cottage would be an ongoing periodic residential tenancy at the rate of $275 per week.

(Strikethroughs omitted)

1. The Court finds that the Committee's action which resulted in Harper signing the written contract of employment in early January 2021 was a calculated prelude to her ultimately having her employment terminated, as it was, on 7 July 2021. It was also part of that calculated plan of action that the termination of Harper's employment would necessarily result in her contemporaneous eviction from the Cottage on the basis that her role as the Club's caretaker was also terminated.
2. The Court is not satisfied that Harper was granted any proprietorial interest, either at law or in equity, in the nature of a life tenancy entitling her to occupy the Cottage until she died. The Court finds that the enforceable agreement between Harper and the Club relating to her occupation of the Cottage was that in the nature of a licence entitling her to occupy the Cottage as long as she performed the duties of the Club's caretaker. The agreement was as pleaded in [21] of the SOC, namely:
   1. In around December 2018, the Pistol Club and Applicant amended the Accommodation Agreement (Amended Accommodation Agreement) by adding the following terms:

21.1A When the Applicant is no longer employed as Club Manager, she will continue to perform the role of caretaker of the Pistol Club for as long as she wishes or is able to for the rest of her life.

21.1. The Applicant would be entitled to live at the Cottage for as long as the Applicant is performing the role of caretaker for the Pistol Club.

21.2. Upon no longer being employed as Club Manager and performing only the role of caretaker, the Applicant would pay rent to the Pistol Club at a rate to be determined by the Committee of the Pistol Club based on market assessment.

1. Harper is presently aged 78 years, turning 79 years on 23 June 2025. The Court finds that had the Club not taken adverse action against Harper by requiring her to enter into the written contract, Harper most likely would have ceased to act as caretaker on behalf of the Club when she attained the age of 80 years. The $250.00 rental payable under the written contract only slightly exceeded the $200.00 amount which Harper alleged was the amount which an agent told her was the "going rate" for weekly rental of the cottage as at early January 2021. It was likely that the Club would have sought to engage the services of a younger on-site caretaker when Harper attained the age of 80 years, based upon safety and security considerations alone. The Court finds that Harper is entitled to stay in the Cottage until she attains the age of 80 years, provided that she continues to pay to the Club the sum of $275.00 per week for her occupation of the Cottage, and provided that she continues to perform the duties which she had previously performed as caretaker on behalf of the Club over many years.

1. The Court finds that Harper is entitled to relief under the FWA pursuant to the provisions of s. 545 of the FWA.
2. The Court has found that the Club failed to pay Harper amounts to which she was entitled under, relevantly, the 2010 Amusement Award, and later under the 2020 Amusement Award, for the period from 26 July 2015 to 7 July 2021. By reason of such failure, the Club contravened the provisions of ss. 44 and 45 of the FWA. The contraventions were ongoing over a long period of time in circumstances where committee members of the Club would have well known and well appreciated that Harper was being underpaid. The Club's contraventions were serious contraventions under the then provisions of s. 557A of the FWA.
3. Further, by requiring Harper to enter a new contract, threatening to dismiss her from her employment, and threatening to evict her from her accommodation if she did not enter the new contract, the Club contravened the provisions of s. 340 of the FWA. Section 340 was relevantly a civil penalty provision under s. 539 of the FWA. The Club contravened the provisions of s. 340 of the FWA because Harper exercised a workplace right to complain about not having been paid her entitlements under the Award. Harper has made out her claim as pleaded at [81] - [86A] inclusive of the SOC.
4. The Court finds that Harper is entitled to be paid compensation for the loss that the Court has found that she has suffered by reason of the contraventions of the FWA. The Court further finds that Harper is entitled to be paid for outstanding long service leave and outstanding annual leave.
5. Harper shall be entitled to remain in occupation of the Cottage until she attains the age of 80 years, provided that she continues to pay weekly rental to the Club in the amount $275.00, and provided that she continues to perform duties as a caretaker of the Club.
6. Harper is entitled to be paid interest on all of the claims which the Court has found ought to have been paid to her.
7. By reason of the contraventions committed by the Club, and the accessorial liability on the part of the second - tenth respondents as found by the Court, the respondents are each liable to pay pecuniary penalties pursuant to the provisions of s. 546(1) of the FWA.
8. Any amount of pecuniary penalty ordered to be paid in respect of the contraventions of the FWA ought to be paid directly to Harper pursuant to the provisions of s. 546(3)(c) of the FWA.
9. In the event that the parties are unable to reach agreement as to the quantum of amounts to be paid to Harper by way of compensation and pecuniary penalty, the Court will hear the parties as to what appropriate steps might be taken to facilitate the quantification of such claims and the final disposition of the proceeding.
10. The lawyers for the parties are directed to confer with a view to providing to the Court, within 7 days, draft declarations and orders which are consonant with the findings of the Court as set out in these reasons.
11. The Court shall reserve the question of costs pending the handing down of judgment and the publication of final orders in the proceeding.

I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] Annexure BES-1 to the affidavit of Robert Schukraft filed on 28 September 2021.

[2] Affidavit of Hall filed on 23 December 2022 at paras 104 - 114.

[3] See the affidavits of Robert Craig filed on 12 March 2023; Robert Giles filed on 18 November 2022;

John Illingworth filed on 20 December 2022 and 12 March 2023; Lawrence Hinton filed on 8 December

2022; Barry Hollingsworth filed on 21 November 2022; Mark Ruddell filed on 22 November 2022;

Heathcote filed on 28 September 2021 and 18 November 2022; and the Transcript evidence of David

Chalk at pp. 338 - 343 on 22 August 2024; and Amanda Goldsworthy at pp. 373 - 377 on 23 August

2024; Colin Moore at pp. 378 - 382 on 23 August 2024; Diane Terakes at pp. 409 - 412 on 23 August 2024; Rhonda Hough at pp. 417 - 420 on 23 August 2024; Daniel Repacholi at pp. 4222 - 425 on 23 August 2024; Lee Kernaghan at pp. 426 - 434 on 23 August 2024; Sharee Betts at pp. 463 - 472 on 26 August 2024; Damion Emannuel at pp. 491 - 495 of 26 August 2024.

[4] See website at Ex. 9 at pp. 10 - 23, especially at p. 14.

[5] See ex. 9 at pp. 369 - 386, especially at 372 - 373.

[6] See transcript of 21 August 2024 at p. 229.28 - .31

[7] Transcript of 21 August 2024 at p. 205.5 - .36.

[8] Transcript of 21 August 2024 at p. 242.7.

[9] Harper affidavit filed on 29 September 2021 at [6] - [9].

[10] Transcript of 22 August 2024 at p. 294.3 - 298.33.

[11] Ray v Radano [1967] AR (NSW) 471 at 478 - 479 per Sheldon J.

[12] See Craig affidavit filed on 12 March 2023.

[15] Paras 15 - 30 of Craig affidavit filed on 12 March 2023.

[16] See also para 359 of Harper affidavit filed on 5 February 2023.

[17] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at [465] - [466] and Danaratna v

Arunatilaka [2024] FCA 918 at [47].

[18] Para 555 of Harper affidavit filed on 5 February 2023.

[19] See paras 78 - 80 of Harper affidavit filed on 5 February 2023.

[20] See Transcript of 26 August 2024 at p. 451.20 - .41.

[21] See documents numbered 56 and 57 in the schedule to the affidavit of Clough filed on 23 December

2022 and to pp. 4815 - 4820 of the annexures to the Clough affidavit.

[22] See p. 452 of Annexure KH-2 to the affidavit of Harper filed on 5 February 2023 - namely an email from

[23] Paras 371 - 395 of Harper affidavit filed on 5 February 2023.

[24] See pp. 453 - 454 of annexure KH-2 to the affidavit of Harper filed on 5 February 2023.

[25] See pp. 455 - 459 of annexure KH-2 to the affidavit of Harper filed on 5 February 2023.

[26] See annexure VJC 48 at pp. 4754 - 4795 to the Clough affidavit filed on 23 December 2022.

[27] See [396] - [410] and [411] - [416] of Harper affidavit filed on 5 February 2023.

[28] p. 552 of annexure KH-2 to the Harper affidavit filed on 5 February 2023.

[29] p. 553 of annexure KH-2 to the Harper affidavit filed on 5 February 2023.

[30] pp. 554 - 555 of annexure KH-2 to the Harper affidavit filed on 5 February 2023.

[31] Annexure VJC 28 to the affidavit of Victor Clough filed on 9 January 2023 (see p. 4357 of annexures).

[33] See annexures VJC 43, VJC 44, VCJ 45, VJC 46 and VJC 47 to the affidavit of Clough filed

on 13 December 2022 being the AGM Meeting Minutes for the years 2016 - 2020 inclusive.

[34] See annexure VJC 47 to the Clough affidavit filed on 23 December 2022 (listed as document number 48

in the schedule to the Clough affidavit) at pp. 4743 - 4748.

[35] s. 144(1) of the Evidence Act 1995 (Cth).

[36] [380] of Harper affidavit filed on 5 February 2023.

[37] See emails at annexure RPC-1 to the affidavit of Craig filed on 12 March 2023 at pp. 1 - 20.

[38] Pereira v Director of Public Prosecutions (1988) 63 ALJR1 at 3.

[39] See [209] of Respondents' submissions filed on 28 November 2024.

[40] See Transcript of 2 December 2024 at p. 41.6 - .12.

[41] See annexure VJC 47 to the affidavit of Clough filed on 23 December 2022 at pp. 4735 - 4742, especially

[42] See annexure VJC 47 at pp. 4749 - 4755.

[43] See para 2 of affidavit of Illingworth filed on 12 March 2023.

[44] CB pp. 576 - 578 being annexure KH-2 at pp. 285 - 287 of Harper affidavit filed on 5 February 2023.

[45] Transcript of 21 August 2024 at p. 244.27 - .43.

[46] Affidavit of Harper filed on 4 August 2021 in support of an interlocutory application for an injunction

seeking orders that the respondents be restrained from interfering with Harper's quiet enjoyment and

occupation of the Cottage pending the final determination of the subject proceeding. That application

was heard before His Honour Judge Vasta on 20 October 2021.