Employer to pay worker $139k for unpaid leave over 21 years

If you hire any contractors to perform labour-intensive work, please consider this case in which an employer has been ordered to pay more than $139,000 to a friend and former employee for 425 days’ unpaid annual leave and entitlements stretching back 21 years.

Federal Circuit Court Judge Norah Hartnett found cabinet-maker Garo Balemian was not an independent contractor as employer, Mobilia Manufacturing Pty Ltd, claimed. Mobilia cited Balemian’s fortnightly GST-inclusive invoices for work dating back to 1994 to support its claim.Gavel and books

Judge Hartnett found that the accumulation of detail showed the employer had the power “at all times” to direct Balemian “as to what work was to be performed, how it was to be performed and generally when it was to be performed”.

She ruled that therefore Balemian was “at all material times” an employee, and that Mobilia had “misrepresented” the true nature of the employment relationship.

Balemian had received no annual leave, personal leave or long service leave entitlements during his working relationship with Bahar’s two companies, nor did they pay him for public holidays and overtime.

The court found Balemian was owed 425 days’ unpaid annual leave, and ordered he be paid $67,830, plus $17,020 for long service leave, plus accumulated pre-judgment interest of $12,206.

The Judge fined Mobilia $35,700, and Bahar $7,140, with both sums to be paid to Balemian.

The court awarded Balemian $139,896 in total.

(Balemian v Mobilia Manufacturing Pty Ltd & Anor (No.2) [2017], FCCA 2566, 26/10/17)