Masri v Nenny Santoso and anor - [2004] NSWIRComm 108 - NSWIRComm 2004 case summary — Zoe

NSWNSWIRComm

Masri v Nenny Santoso and anor

[2004] NSWIRComm 108

Industrial Relations Commission (NSW)|2004-04-28|Before: Haylen J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-04-28

Before

Haylen J

Catchwords

04/14/2004
04/15/2004 DATE OF JUDGMENT: 04/28/2004

Source

Original judgment source is linked above.

Catchwords

04/14/200404/15/2004 DATE OF JUDGMENT: 04/28/2004

Judgment (190 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Masri v Nenny Santoso and anor [2004] NSWIRComm 108 APPLICANT Masri PARTIES : DEFENDANTS Nenny Santoso and anor FILE NUMBER: IRC 3802 of 2001 CORAM: Haylen J CATCHWORDS : Unfair contract - s 106 of the Industrial Relations Act - whether contract of employment or arrangement - discussion between parties in Djakarta - initial agreement not a finalised contract of employment but an arrangement under s 105 - later discussions led to formation of contract of employment - jurisdiction of Commission established on either view of agreement - performance of work by applicant in respondents' home - applicant to perform numerous domestic duties including care of young child - promise by respondent to pay for services rendered by applicant - payments made to applicant other than those offered - inadequacy of payment for nature of work performed seven days per week as live-in domestic - arrangement unfair - contract declared void - no award directly applies to work performed by applicant - use of particular award as a guide to worth of work rejected - no evidence as to actual operation of award or market rates for same type of work - order for payment of money by respondents- money order made in exercise of Commission's wide discretion and in consideration of what was just in the circumstances of this case Baker v National Distribution Services Ltd (1993) 50 IR 254 Barclays Australia Investment Services Ltd v Nordby (1995) 99 IR 258 CASES CITED : Custom Credit Corp Ltd v Goldsmith and ors (1976) AR 98 Davies and anor v General Transport Development Pty Ltd (1967) AR 371 Westfield Holdings v Adams (2001) 114 IR 241) HEARING DATES: 04/13/2004; 04/14/2004; 04/15/2004 DATE OF JUDGMENT: 04/28/2004

[31]

26 A few days later, the applicant met the first respondent again at the aunt's house where she was told by the first respondent that her passport was ready and that on the following day they would go to the Australian Embassy. The first respondent instructed the applicant that if she was asked how much money she was taking to Australia she was to say that she had $8,000 and that, even though she did not have that money, to pretend she did. A few days later, the applicant again attended the aunt's house where the first respondent introduced her to a person called "Martin". She did not know Martin's surname but the first respondent told her that Martin would be her sponsor and would help arrange her visa and that they were going to the Australian Embassy with him that day. The applicant stated that she did not know what the first respondent meant by "visa" or "sponsor" as she had only been educated to primary school level. She did not understand anything about breaking the law or immigration and she believed that what the first respondent and others were doing was what was required to be done and what was legal. She had no reason to believe otherwise and she relied on others in relation to these matters. The first respondent then took the applicant and Martin to her brother's house in a suburb called Sunter Agung in Djakarta. The first respondent picked up her brother and the four then went to a bank in Djakarta where the brother bought a number of travellers cheques. The first respondent told the applicant that the cheques were worth $A8,000 and instructed the applicant to sign the cheques. The applicant noted that the cheques had the name Sriyanti on them but she signed them in her name Masri. The four then proceeded to the Australian Embassy in Djakarta and waited there until Martin returned and the first respondent told the applicant that Martin had obtained her visa. The applicant had signed no forms while at the Embassy and did not speak to any Embassy officials.

[43]

38 During her four years stay with the respondents, the applicant performed a variety of duties: (a) when a textile company associated with the respondents closed, the applicant moved about ten bolts of dress material that had been stored at Kingsgrove to the respondents' garage in Yowie Bay. These weighed between 25 and 30 kilos and had to be taken by the applicant around the house to the lower level and into a store room; (b) a few months after arriving in Australia, the first respondent told the applicant that she would be taught how to cook and then would do the cooking for the family. She said that when her cooking started to get better she cooked meals for the whole family and then she started cooking all the meals. This included breakfast, preparing lunches and cooking the evening meal for the whole family every day; (c) from August 1995 to September 1995, the first respondent taught her how to cut the grass using a mower and shortly after also showed her how to wash the family's three cars. The cars and working in the garden became another part of her regular work; (d) she would look after the baby from early in the morning and prepare her clothes as well as the children's school clothes. She changed the baby's nappies and bathed the baby and generally looked after her; (e) after helping the children off to school she would prepare lunches for the respondents to take to their office and tidy up the kitchen; (f) during the day, she was to tidy up all the bedrooms and bathrooms and kitchen as well as wash all the clothes. The clothes had to be washed in three separate lots and the first respondent's underwear had to be separately washed by hand. She made all the beds, cleaned all the floors while continuing to look after the baby; (g) she had to make time during the day to prepare her own lunch and sometimes would be able to take a break of about an hour in the afternoon while the baby was asleep and if nobody else was at home. She usually worked from 5.30 am to 11.00 pm and sometimes until 3.00 am in the morning seven days a week. The applicant did not suggest that she worked for every minute during that time, but she was expected to be around to work during those times. There were breaks every now and then but she said she was generally busy doing something around the house; (h) during the evening she would plan what to cook for dinner, prepare the food and cook it. Dinner was cooked between 5.00 pm and 7.00 pm each evening. Sometimes Grandma helped by looking after the baby while the applicant did the cooking but this did not happen all the time. She had to set the dining table and serve each family member as they arrived for dinner. Members of the family would often want their dinner at separate times, such as the two respondents who wanted their dinner later at approximately 8.00 pm or 9.00 pm after they had arrived home from work; (i) sometimes the respondents did not finish dinner until as late at 10.30 pm and the applicant had to clean up afterwards as well as continuing to look after the baby, feeding her and putting her to bed. She would also do the ironing about three times a week and usually went to bed about midnight but sometimes as late as 2.00 am if there was a lot of ironing to do. Sometimes she would read a book or write a letter before she went to sleep; (j) at all times of the day, she had to find and fetch things that family members needed or wanted. This had to be done straight away, even if she was busy doing other things. The first respondent, in particular, was very demanding and wanted everything fetched for her whenever she needed them such as a drink, her bag from the car, take the telephone into her room, get her clothes ready every morning and give her a massage almost every night during the first two years; (k) there were other weekly tasks such as taking out the rubbish bin which was a distance from the house and often involved moving three bins. She had to vacuum the house once every three days, wash and clean the bathrooms once a week and clean the windows once a week. The grass was cut once a week in summer and about once every month in winter and the cars were washed and vacuumed at least twice a month; (l) from January 1999, she helped the respondents in their Hurstville office, tidying and cleaning the office twice a week on Monday and Wednesday and helped deliver computers to customers whenever her help was needed. She also answered telephones in the office whenever the respondents were on holidays. On the days she went to the office, she returned home about 6.00 pm or 7.00 pm in the evening and still had to do all the cooking and her other household chores as normal; (m) after the baby turned two the applicant had to teach the baby counting, alphabet, words and manners and these lessons were to be given both in Indonesian and English.

[104]

99 The first respondent said that in May 1995 she was on holidays in Indonesia staying at her aunt's house when she was approached by Omang who was her aunt's chauffeur. Omang approached the first respondent and told her that he had a friend called Masri who was interested in coming to Australia to learn English and who would like to stay in Australia permanently. Masri had asked him for assistance in achieving this aim on a number of occasions and the driver asked the first respondent whether she was in a position to help. The first respondent said that she told the driver that he had been loyal to her family over the years and she was prepared to do it as a favour to him as the girl was his friend, but she would need to meet her. Later that day Omang introduced Masri to the first respondent. Masri told her that she was keen to marry an Australian and would like to live in Australia. The first respondent told her that the driver had asked whether she would be prepared to let Masri stay with her family in Australia and that because he had been good to her aunt, she would take Masri to Australia. Masri thanked her and said she was grateful for the opportunity being provided and was prepared to help the first respondent in the running of her house as a way of showing her appreciation. The issue of employing the applicant as a servant was never mentioned in the conversation. The first respondent said she was simply helping the applicant as a favour to the chauffeur. Her involvement with the applicant was simply to look after her until she settled into Australia. She did not arrange for or say to Masri that she would arrange her passport. The first respondent denied that she had driven with her brother and the applicant to a house in a suburb of Djakarta and had arranged a passport for the applicant. She denied any conversation about the same person having made a passport for the first girl who had worked for her or obtaining a Djakarta identification card, rather than using Masri's East Java identification. She also denied suggesting that the applicant change her name to Sriyanti and denied all of the applicant's evidence as to obtaining the passport, attending the Department of Immigration and the proposal to tell the Australian Embassy that she was bringing $8,000 to Australia.

[174]

(a) the applicant said that in her conversations in Indonesia with the first respondent, amongst other things, she was told that if she came to Australia she would have to stay for a minimum of two years. In cross-examination the second respondent asked the applicant why she had run away after four years when she could have spoken to them or could have left "two years earlier". The clear inference is that the arrangement with the applicant was that she would stay for a minimum of two years. That fact, and many other aspects of the Djakarta conversation were denied by the first respondent; (b) on the applicant's version, the first respondent's brother was involved in some of the arrangements regarding the procuring of a passport and visa for the applicant. The applicant spoke of travelling to the brother's house and named an area in Djakarta which was inserted in her passport as her address which she denied. Curiously, in her evidence the first respondent could not remember where in Djakarta her brother lived or even whether or not she had contact with him during this visit. It was important to the respondents' case and would have undermined the applicant's version of events if the first respondent's brother in fact lived elsewhere in Djakarta and if he had given evidence rejecting any involvement in the arrangements to obtain a passport for the applicant or even meeting his sister during her visit in mid 1995: he was not called to give evidence; (c) the applicant described how she came to be called "Sriyanti", denied it was her name or a name she used. The respondent denies suggesting that the applicant use the name or having any involvement in arranging the passport and visa. The first respondent stated that the applicant said that she would arrange her travel documents herself. If the applicant had chosen to obtain a passport and visa using an assumed name and as part of a subterfuge it is curious, to say the least, that she signed the passport using her known name, "Masri". The applicant said that she also signed the travellers cheques in the name "Masri" even though they were made out in the name "Sriyanti". The whole passport saga seems to make sense only if it was a stratagem to overcome the three month terms of the visa and make the applicant difficult to find in Australia. The signing of these documents by the applicant using her known name rather than the false name appearing on the documents tends against a conclusion that she was knowingly involved in falsifying these documents; (d) in their Reply the respondents said that the arrangement included the applicant coming to Australia, learning English and finding a job. There was no suggestion in the evidence that the respondents helped the applicant learn English or did anything to assist her in finding a job. Her time was so consumed with performing domestic duties for the respondents that there was no time for other employment: this is a further factor which supports a finding that the applicant's job in Australia was as a maid or housekeeper for the respondents; (e) when the issue of payment was first raised, about a month after the applicant arrived at the respondents' Yowie Bay home, the applicant states that the first respondent offered her a sum of only 125,000 rupiah per month for the work, which upset her. When the applicant questioned whether the "125,000" was only rupiah and not Australian dollars she recalls the first respondent stating that she had already paid for her passport and airline ticket. The first respondent denies this conversation but in her evidence refers to receiving calls from her aunt's driver (the applicant's friend in Djakarta) and agreeing to bring the applicant back home if things did not work out. On the applicant's evidence she had little money and by August 1999 only had $5 to her name. This evidence tends to support a conclusion that the applicant did not have the financial resources to purchase an airline ticket to come to Australia in 1995 and that in fact the ticket was paid for by the first respondent; (f) the second respondent did not know why the applicant was in his house or what was the purpose of her coming to Australia but he just trusted his wife. He did not know if his wife gave the applicant money as pocket money or wages because he left those matters to her and they were not matters that he was involved in. He had no idea of the arrangements made by his wife with the applicant or even if she had agreed to employ the applicant and pay her wages. The second respondent therefore has nothing to contribute on the question of whether or not there was an employment relationship or an intention that the applicant be employed to perform domestic duties at the Yowie Bay house; (g) contrary to the evidence given by Mr and Mrs Iskandar, the second respondent did see the applicant doing ironing three times a week and doing washing once or twice a week. The first respondent, contrary to the evidence of Mr and Mrs Iskandar, said that the applicant did some cooking for the family; (h) the first respondent in her oral evidence said that she paid pocket money to the applicant because she helped around the house. This statement was made even though the evidence of the respondents concentrated on establishing that the applicant did very little around the house; (i) from the cross-examination of Mr and Mrs Iskandar it became evident that their affidavits were somewhat artificial and did not reflect the language and words they would normally use. It was entirely unclear whether these affidavits were prepared from other material and presented to the witnesses simply to endorse or whether the affidavits represented what they had said themselves. In that respect the oral evidence of Mr and Mrs Iskandar appeared to be a more reliable guide of what they wished to say although the cross-examination demonstrated numerous inconsistencies and some improbabilities; (j) in final submissions for the respondents the reason for bringing the applicant to Australia was given a new twist, namely, that the sole point of the agreement reached in Djakarta was to allow the applicant an opportunity to come to Australia. That submission is at odds with the evidence of the first respondent and demonstrates the tendency for the respondents' case to shift ground considerably during the course of the hearing.

[178]

173 If the evidence was confined to these last stated matters, it may be difficult to conclude whether or not the parties contemplated paid employment either at the time the arrangement was made in Djakarta or by the time the arrangement became effective in Australia. When consideration is given to the way in which the arrangement was entered into in Djakarta, the inference is considerably strengthened that both parties contemplated paid employment in Australia. The applicant gave evidence of her desire to follow the lead provided by her friends and relatives in making more money by leaving Indonesia and seeking employment overseas. The applicant was in paid employment and had been in that employment for three and a half years. Coming to Australia for no income and to perform household chores in return for meals and accommodation might have been attractive to a young Indonesian girl of limited education but it certainly did not meet her goal of earning more money outside Indonesia. I accept the applicant's detailed evidence of the steps taken by the first respondent to secure a passport and visa as well as identification documents in Djarkata. The applicant's evidence was that the passport was provided by the same person who had provided a passport to the first girl brought to Australia by the first respondent. The respondents denied there was any such person but Mr Muir gave evidence that when the respondents arrived at Yowie Bay in 1994 he became aware of the presence of an Indonesian girl whom he learned was called Pat and who worked in the respondents' house. The respondents said they did not know any person called Pat or Patima and that no such person lived with them, worked for them or stayed with them at Yowie Bay. It was not suggested to Mr Muir that he was wrong about the person he knew as Pat or that he had confused her with someone else who was not employed but who was a guest at the house. This omission cannot be excused on the basis that the respondents were not legally represented during the hearing, because the omission occurred while the respondents were legally represented and the affidavits in reply were being formulated and settled: although the respondents accepted that everything that was incorrect was meant to be addressed by their affidavits, both their affidavits failed to challenge Mr Muir's evidence in relation to the existence of Pat and the tasks upon which she was engaged. It is no coincidence then that the applicant recalls the first respondent referring to obtaining a passport for the first girl who worked for them and Mr Muir's recollection of an Indonesian girl who performed household duties for the respondents when they first moved into Yowie Bay.

[183]

178 The difficulty with this approach is the frank concession by counsel for the applicant that, because of the particularity of the Incidence clause (which is complex and is not reproduced here) the Award did not apply to the work although it was said to cover very similar work. The award is a comprehensive and complex document. The union responsible for maintaining the Award (the Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, New South Wales Branch) was not called to explain the operation of the Award or its intricacies. Some of the complexities are indicated by the provisions dealing with wage rates for live-in house workers which were said to apply to the type of work performed by the applicant. The terms of the clause were in substitution for and not cumulative upon the Hours of Work clause, the Saturday and Sunday Work clause, the Overtime clause and the Public Holidays clause. A live-in house worker was defined to mean an employee who would normally live at the client's premises for a period in excess of 48 hours. The gradings were Grade 1, being an employee employed to perform general housekeeping duties only, meaning preparing meals, cleaning, laundry and household duties of a like nature and excluding any personal care. A Grade 2 was a person employed to perform general housekeeping duties as defined in Grade 1 and Personal Care Grade 2 as described in Appendix A of the Award. The guidelines for grading in clause 60 provided that, when determining the grade of tasks which an employee will perform in a household, the employer/employee would need to establish: the tasks to be performed, whether personal care, housework etc, the likely impact on the worker, or the work to be performed, from any household factors including behaviour exhibited by the client or another household member. The criteria used for grading personal care tasks dealt with bathing children, as well as adults with severely limited or uncontrollable body movement or persons with limited mobility, assisting in toileting, menstrual care, skin care, nasal care, grooming, oral hygiene and a variety of other types of considerations.

[186]

180 I am satisfied that, at the time of the making of the contract and during its course, the conduct of the respondents was such that the contract was unfair. The applicant was a young Indonesian girl of limited education and had no bargaining power in her relationship with the first respondent. The first respondent was authorised by the second respondent to make the decisions in relation to the running of the household and seems to have accepted her decisions in that regard without question. At the time of the discussion with the first respondent, the applicant was in paid employment and had been in paid employment for three and a half years. While it was her expectation that she would be paid and paid well for her work in Australia the issue of payment was not raised during these discussions. Common sense would have required the first respondent to tell the applicant that, if she wanted to come to Australia and work at the respondents' house, she had to understand that she was not to be paid if that was to be the arrangement: equally, if there was to be paid employment the applicant was entitled to know what she would receive as wages. While it might be said that there were great advantages in being able to leave her menial employment in Indonesia, nevertheless, that was paid employment, and to be simply invited to perform the same work in Australia without pay but with the provision of food and accommodation alone may not have been sufficiently attractive for the applicant to accept the arrangement. The first respondent obviously had in mind at this time that amounts of money would be paid but was using her superior bargaining position and the lure of living in Australia to entice the applicant to accept the arrangement, and to then inform her without discussion or negotiation when they arrived in Australia that she would in fact be paid a pittance. On any view of the evidence in this matter the contract was unfair. In this case, bearing in mind that the arrangement has come to a conclusion, the appropriate course would be to void the contract ab initio except to the extent of any amounts paid by the respondents to the applicant.

Parties

Applicant/Plaintiff:

Masri

Respondent/Defendant:

Nenny Santoso and anor

Cases Cited (4)

[2004] NSWIRComm

(1993) 50 IR 254

(1995) 99 IR 258

(2001) 114 IR 241

Cited By (1)

Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Port Kembla Coal Terminal Ltd