2025 WAIRC 00039
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00039



CORAM
:
INDUSTRIAL MAGISTRATE T. KUCERA



HEARD
:
MONDAY, 8 APRIL 2024, TUESDAY, 9 APRIL 2024, WEDNESDAY, 10 APRIL 2024, THURSDAY, 11 APRIL 2024 & FRIDAY, 12 APRIL 2024



DELIVERED
:
TUESDAY, 28 JANUARY 2025



FILE NO.
:
M 147 OF 2022



BETWEEN
:
JILLIAN DIXON, DEPARTMENT OF MINES, INDUSTRY REGULATION AND SAFETY


CLAIMANT





AND





KAHRAMAN KARAKUYU


FIRST RESPONDENT





DÖNE KARAKUYU





SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Enforcement of State Award – Breaches of Award - Underpayment of Wages Claim – Award contraventions – Records contraventions – Reverse Onus of Proof – Onus of Proof – Failure to keep and maintain employment records – Non-compliance with Notices to Produce – Obstruction s 102 Industrial Relations Act 1979 – s 82A Time limit for certain applications – s 83A Underpayment of employee, orders to remedy – s 83EB Employer to have burden of disproving certain allegations by – claimant under s 83 – s 49D Employer’s duties as to employment records – Retrospective application of statute – Excuses for not providing employment records – Claim proven
Legislation : Industrial Relations Act 1979 (WA)
Industrial Relations Legislation Amendment Act 2021 (WA)
Fair Work Act 2009 (Cth)
Misuse of Drugs Act 2001 (Tas)
Instrument : Restaurant, Tearoom and Catering Workers’ Award
Catering Workers’ (Fast Food Operations, Catering and Restaurant) Agreement, 1979
Case(s) referred
to in reasons: : Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627; (2019) 290 IR 331
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Attorney-General's Reference No 1 of 2004 [2005] TASSC 10
Ah Hing v Hough (1926) 28 WALR 95
Richardson v Shipp [1970] Tas SR 105
Rodway v R [1990] HCA 19; (1990) 169 CLR 515
Browne v Dunn (1893) 6 R 67
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1983] 1 NSWLR 1; (1983) 70 FLR 447
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832
Jubilee Jackpot Pty Ltd v Federated Liquor and Allied Industries Employees’ Union of Australia, Western Australian Branch, Union of Workers (1989) 69 WAIG 1048
Federated Liquor and Allied Industries Employees’ Union of Australia, Western Australian Branch, Union of Workers v Jubilee Jackpot Pty Ltd trading as McDonald’s Family Restaurants (1988) 68 WAIG 2851
Minister for Labour v Como Investments Pty Ltd (1990) 70 WAIG 3539.
Hungry Jacks Pty Ltd v Wilkins (1991) 71 WAIG 175
Nyree Collins, Department of Consumer and Employment Protection v Yule Brook College Parents and Citizens’ Association Incorporated [2003] WAIRC 8476; (2003) 83 WAIG 1787
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595
Kucks v CSR Ltd (1996) 66 IR 182
Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241
Result : Claim proven
Representation:
Claimant : Mr J. Carroll (of counsel), and with him Ms I. Inkster (of counsel)
Respondent : Mr S. Heathcote (of counsel)


REASONS FOR DECISION
Table of Contents
Introduction 7
Issues to be decided 7
Limitation Date 8
Claim periods in issue 9
Change in ownership 9
Agreed Facts 10
The Award 11
Underpayment of wages claim & relief sought 11
Award clauses the respondents allegedly breached 12
Number of alleged award contraventions 14
Records contraventions 14
Parties’ Evidence & Submissions 15
Onus of Proof 16
How the reverse onus works 17
Does the reverse onus have retrospective effect? 17
Law on the retrospective application of statute 18
Summary of the Parties’ Evidence 20
Evidence of Brian Ravenscroft 20
Visit to Newroz on 22 July 2021 20
Phone call from Kahraman 21
Meeting with Newroz accountants 21
Meeting at Newroz – 4 August 2021 22
5 August 2021 Visit to Newroz 22
Observations about Mr Ravenscroft’s evidence 24
The claimant’s evidence 24
Notices to Produce 24
Response from the accountants 25
Employment records that were not produced 26
Documents that were produced 27
Approach to Mr Zeyrek’s evidence for the underpayment calculations 27
Internet and Social Media Searches 29
Observations on the claimant’s evidence 29
Mr Zeyrek’s evidence 29
Cross-examination of Mr Zeyrek 34
Observations about Mr Zeyrek’s evidence 36
Yusuf Oruc 36
Cross-examination of Mr Oruc 38
Observations regarding Mr Oruc’s evidence 39
Evidence of Fener Azbay 40
Cross-examination of Ms Azbay 41
Observations about Ms Azbay’s evidence 42
Respondent’s evidence – Kahraman 42
Cross-examination of Kahraman 43
Observations regarding Kahraman’s evidence 44
Evidence of Hasan Karakuyu 44
Cross-examination of Hasan 47
Observations about Hasan’s evidence 50
Evidence of Huseyin Karakuyu 51
Cross-examination of Huseyin 53
Observations about Huseyin’s evidence 54
Evidence of Mehmet Yasar 55
Cross-examination of Mehmet Yasar 55
Evidence of Nilufer Karakuyu 55
Cross-examination of Nilufer 57
Observations about Nilufer’s evidence 57
Fatma’s Evidence 58
Cross-examination of Fatma Kara 59
Observations about Fatma’s evidence. 60
Evidence of Umut Ozkalfa 60
Cross-examination of Umut Ozkalfa 61
Observations about Umut Ozkalfa’s evidence 61
Evidence of Mehmet Mavi 62
Cross-examination of Mehmet Mavi 62
Observations about Mehmet Mavi’s evidence. 63
Observations about the Evidence Overall 63
Mr Zeyrek’s Tax returns 64
The BAS Payroll Reports 64
The Respondent’s excuse for not providing employment records 65
Delegation excuse 65
Lost records excuse 66
Which claim period applies? 66
Primary claim period applies 67
Application of the Award 67
Respondents’ submissions on clause 6 68
Claimant’s submissions on clause 6 68
Why the Award applies 70
Case law on the application of the Award 72
Food consumed on the premises 72
Findings on the Award Contraventions 72
Classification and Rates of Pay 73
Hours of Work 73
Immigration status 73
Requests to work full-time hours 74
Mr Zeyrek’s soccer commitments 74
Working hours of family members 74
Advertised trading hours 75
Staff numbers 75
Relationship between the parties 75
Vulnerable worker 76
Alternative finding on hours worked 77
Entitlement to Meal Breaks 77
Claim for meal break loading 78
Protective clothing allowance 78
Uniforms 79
Rate paid was not sufficient to comply with the Award 79
Declarations to Centrelink 79
Information to be provided to the ATO 80
Proof of the allegations if the reverse onus does not apply 80
Conclusion 81




Introduction
1 This matter involves enforcement proceedings (proceedings) that were commenced under ss 83(1) and 83E(1) of the Industrial Relations Act 1979 (WA) (IR Act) by Jillian Dixon (claimant), an industrial inspector from the Department of Mines, Industry Regulation and Safety (Department).
2 The claimant filed the proceedings alleging Kahraman Karakuyu and Döne Karakuyu (respondents) who, in partnership, as proprietors of the business trading as Newroz Kebab and Turkish Bakery (Newroz), had failed to maintain employment records and significantly underpaid one of its employees, Şahin Zeyrek (Mr Zeyrek).
3 Mr Zeyrek, who is not proficient in speaking English, commenced work at Newroz in July 2013. At or around this time, Mr Zeyrek was, for immigration purposes, granted a refugee protection visa. Mr Zeyrek continued to work at Newroz until he resigned from his employment in the later part of 2020.
4 After ceasing employment with Newroz, Mr Zeyrek made a complaint to the Fair Work Ombudsman (FWO) about his pay and employment entitlements (complaint).
5 In May 2021, when it became clear that Mr Zeyrek was, for much of the time he worked at Newroz, not employed by a ‘national system employer’, the FWO referred his complaint to the Department to investigate.
6 As part of the Department’s investigation into Mr Zeyrek’s complaint, on 12 April 2022, the claimant issued three Notices to Produce under s 98(3)(e) of the IR Act, including one to the respondents that required them to provide the claimant with employment records for Mr Zeyrek (Notices to Produce). The respondents were required to comply with the Notices to Produce by 26 April 2022.
7 On 19 December 2022 following the completion of the Department’s investigation, the claimant commenced the proceedings alleging the respondents had:
i. failed to keep records in relation to Mr Zeyrek’s employment contrary to s 49D(2) of the IR Act (record contraventions); and
ii. contrary to the provisions of the Restaurant, Tearoom and Catering Workers’ Award Restaurant Tearoom and Catering Workers’ Award 1979 (the Award), the respondents failed to pay Mr Zeyrek correct rates of pay and entitlements (award contraventions).
8 The respondents for their part, admitted the record contraventions. In relation to the award contraventions, the respondents on two bases, denied they engaged in any contravening conduct.
9 First, the respondents say the Award did not apply to their business. Second, and even if it can be established that the Award applied, the respondents denied that Mr Zeyrek worked the number of hours the claimant says he worked and for which it is alleged he was underpaid.
10 In the reasons that follow, I have considered whether the claimant has proved its claim against the respondents and whether, they have engaged in the alleged award contraventions.
Issues to be decided
11 To establish if the respondents committed the alleged award contraventions the claimant would, in the usual course, be required to prove on the balance of probabilities the Award applied to the respondents and that Mr Zeyrek worked the hours he said he did.
12 In the present case, and in the absence of employment records, proof of these matters necessarily required Mr Zeyrek and others to give evidence on both the nature of the work he performed and when he performed it.
13 However, what is also relevant, and which required determination, was whether the onus of proving these matters was to be borne by the claimant or whether the respondents, having admitted the record contraventions, were subject to the reverse onus of proof under s 83EB of the IR Act (reverse onus).
Limitation Date
14 In addition to the matters referred to the preceding paragraphs [11]  [13] above, a further issue the parties were at odds over was the limitation date that applied to determining the number of award contraventions and the quantum of the claimed underpayment (claim period).
15 On this, s 82A of the IR Act relevantly provides that a breach of an award claim, must be made within six years of the alleged contravention.
16 Notwithstanding this, s 83A of the IR Act states:
83A. Underpayment of employee, orders to remedy
(1) Where in any proceedings brought under section 83(1) against a person it appears to the industrial magistrate’s court that an employee has not been paid the amount which the employee was entitled to be paid under an entitlement provision, the industrial magistrate’s court must, subject to subsection (2), order that person to pay to that employee the amount by which the employee has been underpaid.
(2) An order may only be made under subsection (1) —
(a) in respect of any amount relating to a period not being more than 6 years prior to the commencement of the proceedings; or
(b) if the person concerned appears to the industrial magistrate’s court, or has been found under section 83E, to have contravened section 102(1)(a) or (b) by reason of having failed —
(i) to produce or exhibit a record relevant to the proceedings; or
(ii) to allow such a record to be examined; or
(iii) to answer a question relevant to the proceedings truthfully to the best of the person’s knowledge, information and belief, as the case requires,
in respect of any amount relating to a period not being more than 6 years prior to that failure.
17 Section 102 of the IR Act provides:
102 Obstruction etc. prohibited
(1) A person must not —
(a) being lawfully required to do so fail to produce or exhibit, or allow to be examined, a record; or
(b) being lawfully asked a question by a person under this Act, fail to answer truthfully to the best of the person’s knowledge, information and belief; or
…
(2) A person must not —
(a) resist or obstruct a person in the performance of a duty imposed or the exercise of a power conferred by or under this Act; or
(b) wilfully mislead a person in any particular likely to affect the exercise of a power so conferred or the discharge of a duty so imposed.
18 In effect, s 83A(2)(b) of the IR Act allows the Court to extend the sixyear limitation period to a date on which a respondent was required to respond to a notice to produce but the respondent fails to either:
i. comply with a notice to produce; This is where a contravention of s 102(1)(a) of the IR Act has been found by the Court to have occurred.
or
ii. is found to have either contravened s 102 of the IR Act; This is where the Court has found contravention of s 102(2) of the IR Act has occurred.
or
iii. appears to have engaged in conduct contrary to s 102 of the IR Act. This is where the Court concludes a respondent appears to have engaged in conduct of the type for which the Court may impose a civil penalty under s 83E of the IR Act for a breach of ss 102(1) or 102(2).

Claim periods in issue
19 In this matter, there are, because of the operation of s 83A(2)(b) and s 102 of the IR Act, two potential claim periods that could apply. The first is a claim period that runs from 27 April 2016 until 31 December 2018 (primary claim period).
20 For the primary claim period to apply, I must be satisfied the respondents have or appeared to have engaged in conduct of the type contemplated by s 83A(2)(b) of the IR Act (failure to comply). This would allow me to extend the limitation period to six years from the day immediately following the date by which the respondent was required to comply with the Notices to Produce.
21 In the present case the date by which the respondents were required to comply with the Notices to Produce was 26 April 2022 (compliance date). Therefore, the first date in the primary claim period would be six years from the day after the compliance date, which was 27 April 2022.
22 The second scenario is a claim period that runs from 19 December 2016 until 31 December 2018. This would be a claim period that commences six years from the date on which the first alleged contraventions within the period allegedly occurred (alternative claim period).
23 If I conclude the respondents did not engage in a failure to comply, despite having admitted the record contraventions, the alternative claim period would apply.
Change in ownership
24 The parties agreed that on 31 December 2018, there was a transfer in the ownership and control of Newroz, from the respondents to Karakuyu Pty Ltd (change in ownership).
25 While it is conceded Mr Zeyrek continued to work for Newroz beyond the date on which there was a change in ownership, it was accepted the last date in either claim period, on which it could be alleged an award contravention occurred was 31 December 2018.
26 This is because, Mr Zeyrek’s employment, following the change in ownership, transferred from the respondents to a national system employer, to which the Award and the provisions of the IR Act no longer applied.
27 Therefore, and regardless of the finding I make on the claim period that applies, the last day in either scenario is 31 December 2018.
Agreed Facts
28 In addition to the change in ownership, the parties agreed upon a series of facts relevant to the issues to be decided. These were presented in a Statement of Agreed Facts the parties filed on 23 June 2023. Relevantly the parties agreed the following:
The Premises
From at least 27 April 2016 to 31 December 2018 … Newroz Kebabs was an establishment at which food was prepared onsite and sold for consumption. The Premises had a cash register, drinks fridge, kebab machines and grill. There were tables and chairs at the Premises.
Newroz Kebabs sold food items including but not limited to burgers, kebabs, fish and chips, nuggets and chips, and seafood baskets. After the shop was renovated in 2017, the range of food offered for sale was increased and included items such as pide, gözleme and bread.
Newroz Kebabs was generally open seven days a week, including public holidays but excluding Christmas Day.
[The] opening hours, on days that were not public holidays, were, at a minimum:
Monday – 09.00 am – 10.00 pm
Tuesday – 09.00 am – 10.00 pm
Wednesday – 09.00 am – 12.00 am
Thursday – 09.00 am – 12.00 am
Friday – 09.00 am – 02.00 am (the following day)
Saturday – 0:90am – 02.00 am (the following day)
Sunday – 09.00 am – 11.00 pm
The Complainant
The Respondents employed Şahin Zeyrek for but not limited to the claim period.
Mr Zeyrek’s duties included but were not limited to taking orders and payments from customers, preparing orders, handing over completed food orders, and cleaning.
The Respondents paid Mr Zeyrek on a weekly basis in cash.
Failure to maintain records per s 49D(2) of the IR
The Respondents were required to maintain records in relation to Mr Zeyrek’s employment in accordance with section 49D(2) of the Act (as that section was prior to amendments made by the Industrial Relations Legislation Amendment Act 2021 on 20 June 2022).
The Respondents contravened section 49D(2) of the Act in relation to Mr Zeyrek’s employment.
Failure to produce records per s 102(1)(a) of the IR Act
On 14 April 2022, the Respondents were served with a notice to produce records to the Claimant by 26 April 2022 relating to Mr Zeyrek’s employment with Newroz Kebabs, as operated by the partnership, including:
(a) Mr Zeyrek’s signed tax file number declaration form with the business;
(b) PAYG payment summaries for the period 2013 to 2019;
(c) documents relating to the change in ownership of the business from the Respondents to the Trustee for the Kahraman Family Trust in or about January 2019 (relevant records).
The Respondents were lawfully required to produce the relevant records by 26 April 2022 but did not do so.
29 In addition to the agreed facts set out, the respondents made other concessions relevant to the application of the Award, including the classification Mr Zeyrek was employed in, to which I will return.
30 The respondents’ concessions regarding the application of the Award were, however, conditional upon the Court finding the Award applied to the respondents.
The Award
31 As indicated, to succeed in the award contraventions, the claimant was required to establish that the Award applied. In relation to this, clause 4 of the Award (Scope) relevantly states:
This Award shall apply to all workers employed in the callings described in [c]lause 21 of this award, in Restaurants and/or Tearooms and/or Catering Establishments and/or by Catering Contractors, as defined in [c]lause 6 of this Award.
32 Under clause 6 of the Award (Definitions), a restaurant or tearoom is relevantly defined as:
(1) Restaurant and/or Tearoom means any meal room, dining room, grill room, coffee shop, tea shop, oyster shop, fish cafe, cafeteria or hamburger shop and includes any place, building, or part thereof, stand, stall, tent, vehicle or boat in or from which food is sold or served for consumption on the premises and also includes any establishment or place where food is prepared and/or cooked to be sold or served for consumption elsewhere.
33 Also relevant are the definitions applicable to catering establishments and catering contractors, which are referred to below:
(2) (a) Catering establishment means any building or place where meals and/or light refreshments and/or drinks are served and provided for weddings, parties, dances, social functions, theatres, festivals, fairs, exhibition buildings, cultural centres, convention centres, entertainment centres, racecourses, showgrounds, sporting grounds, and the like.
(b) Catering Contractor means any person, firm, company or corporation carrying on business as a Catering Contractor in the provision of catering and ancillary services for any social, commercial, industrial or other purpose or function.
34 The respondents denied that Newroz was a business falling within the definition of a restaurant or tearoom. On this basis the respondents submitted the Award did not apply. The respondents contended that if this submission was accepted, the award contraventions would fall away.
Underpayment of wages claim & relief sought
35 The claimant provided detailed particulars with the Originating Claim (particulars of claim), including excel spreadsheets setting out the amounts by which and the dates it was alleged, Mr Zeyrek was underpaid (underpayment calculations).
36 In her underpayment calculations, the claimant proceeded on the basis that Mr Zeyrek was employed as a Food & Beverage Attendant Grade 2, Kitchen Attendant Grade 2 and Cook Grade 1, each of which are classifications described in the Award.
37 The claimant also proceeded on the basis Mr Zeyrek regularly worked 64.5 hours per week according to the following roster: Originating Claim dated 15 December 2022 (Originating Claim), paragraph [14].

Day
Hours
Total
Monday
12.00 pm – 11.00 pm
11
Tuesday
Day Off
0
Wednesday
12.00 pm – 12.00 am
12
Thursday
12.00 pm – 12.00 am
12
Friday
12.00 pm – 2.00 am
14
Saturday
5.00 pm – 2.00 am
9
Sunday
5.00 pm – 11.30 pm
6.5


64.5
Award clauses the respondents allegedly breached
38 The claimant in her particulars of claim and the underpayment calculations, provided details of the clauses of the Award which the respondents were alleged to have breached and the number of occasions on which these contraventions allegedly occurred.
39 It was alleged the respondents contravened the Award by failing to pay Mr Zeyrek at the applicable rates, as specified in the following provisions:
i. clause 9(2) – additional rates for ordinary hours (payment of additional rates where ordinary hours are performed on Saturdays and Sundays);
ii. clause 10(2) – overtime (payment at overtime rates for overtime worked MondaysFridays and on Saturdays and Sundays);
iii. clause 13(1)(b) – meal breaks (payment of the loading that applies where a meal break is not provided);
iv. clause 17(1)(a) – public holidays (observing Christmas Day in 2016 and Christmas Day in 2017 as holidays without deduction of pay);
v. clause 17(2)(a) – public holidays (payment at the rate of double time and half for work performed on public holidays);
vi. clause 18(6) – annual leave (payment of annual leave and leave loading upon termination);
vii. clause 21(1) – wages (minimum fortnightly wage payable for a full-time Level 2 employee);
viii. clause 26(2) – uniforms and laundering (payment of a fortnightly laundry allowance);
ix. clause 27(1) – protective clothing (payment of an allowance where rubber gloves are not provided, when performing particular cleaning tasks and using cleaning agents)
x. clause 32(1) – employment records (requirement to keep and maintain employment records.
40 I have extracted into a table below, the rates of pay that applied under the Award in the twoyear period from 1 July 2016 to 1 July 2018, pursuant to the Award clauses I have referred to (comparative wages table).
41 The comparative wages table sets out the rates that applied under the Award for work in ordinary hours, as well as for work at night, on weekends, public holidays and at overtime rates.
42 The comparative wages table also shows the rate the claimant alleged the respondents paid to Mr Zeyrek for each hour he worked during the respective claim periods; $20 per hour.
Award rates of pay
01/07/2016
01/07/2017
01/07/2018
Rate Paid Per Hour
Hourly
($)
($)
($)
($)
Ord Hrs MonFri
19.40
19.82
20.29
20
Ord Hrs MonFri (<7am&>7pm)
21.06
21.48
21.95
20
Ord Hrs MonFri (>12am<7am)
21.15
21.57
22.04
20
Ord Hrs SatSun
29.09
29.73
30.44
20
OTM* x 1.5 MonFri (<2hrs)
29.09
29.73
30.44
20
OTM x 2 MonFri (>2hrs)
38.79
39.63
40.58
20
OTM x 2 SatSun
38.79
39.63
40.58
20
PH† x 2.5 (min 4 hrs) – Ordinary Hours
48.49
49.54
50.73
20
PH x 2.5 (min 4 hrs) – Overtime Hours
48.49
49.54
50.73
20
* OTM means ‘overtime’.
† PH means ‘public holiday’.
43 The claimant contended that if the primary claim period applies, Mr Zeyrek was by reason of the award contraventions alleged, underpaid the total of amount of $102,483.74. Originating Claim, [57].
This sum includes an amount for unpaid annual leave.
44 If the alternative claim period applies, the claimant alleged that in addition to an amount for unpaid annual leave, the total sum owing to Mr Zeyrek was $84,487.86. Originating Claim, [70].
Either way, the level of underpayment alleged is significant.
45 The respondents accepted that if I reached a conclusion that Mr Zeyrek was employed on a fulltime basis, then he would be entitled to payment for accumulated annual leave and leave loading. The respondents conceded that Mr Zeyrek never took leave and was not paid for annual leave or leave loading, including upon his termination. ts 328.

46 In addition to orders requiring the respondents pay Mr Zeyrek any amount by which he was underpaid, the claimant also sought orders for the payment of pre-judgement interest and the imposition of pecuniary penalties. The pecuniary penalties sought are for both the alleged award and records contraventions.
47 Noting the number of issues requiring determination, even with the respondents having admitted the records contraventions, I have opted to deal with the issue of liability first and to defer the question of penalty for further argument.
Number of alleged award contraventions
48 The claimant in the particulars of claim and underpayment calculations alleges the respondents, during the primary claim period, committed 513 award contraventions. In the alternative claim period, the claimant alleged the respondents committed 392 separate contraventions.
49 Although s 83A(2)(b) of the IR Act allows the Court to extend a claim period so it can make an order requiring an employer to pay an amount an employee was entitled to receive for the duration of the extended claim period, it does not empower the Court to impose a penalty for a contravention that occurs more than six years from the date of the alleged contravention.
50 When s 82A of the IR Act is read together with s 83 and s 83A it is clear that penalties may only be imposed, for contraventions that occur within the sixyear time limit under s 82A.
51 Therefore, if I conclude the primary claim period applies and find the respondents breached the Award 513 times, I can only impose penalties for contraventions that I find were committed within the sixyear limitation period. This means the maximum number of award contraventions in respect of which I may impose a penalty is 392.
Records contraventions
52 The claimant alleged the respondents, during the period 19 December 2016 to 31 December 2018 contravened s 49D(2), as it applied prior to amendments that were made to the IR Act on 20 June 2022, on 738 separate occasions. Claimant’s AideMémoire – Number of Alleged Records Contraventions.

53 During the claim periods at issue; s 49D(2) of the IR Act relevantly required the respondents to ensure the following employment records (employment records) were kept:
(2) An employer must ensure that details are recorded of —
(a) the employee’s name and, if the employee is under 21 years of age, his or her date of birth; and
(b) any industrial instrument that applies; and
(c) the date on which the employee commenced employment with the employer; and
(d) for each day —
(i) the time at which the employee started and finished work; and
(ii) the period or periods for which the employee was paid; and
(iii) details of work breaks including meal breaks;
and
(e) for each pay period —
(i) the employee’s designation; and
(ii) the gross and net amounts paid to the employee under the industrial instrument; and
(iii) all deductions and the reasons for them;
and
(f) all leave taken by the employee, whether paid, partly paid or unpaid; and
(g) the information necessary for the calculation of the entitlement to, and payment for long service leave under the Long Service Leave Act 1958, the Construction Industry Portable Paid Long Service Leave Act 1985 or the industrial instrument; and
(h) any other information in respect of the employee required under the industrial instrument to be recorded; and
(i) any information, not otherwise covered by this subsection, that is necessary to show that the remuneration and benefits received by the employee comply with the industrial instrument.
54 In addition, the claimant separately alleged the respondents had breached clause 32 of the Award (Employment Record), which requires employers who are bound by the Award to keep employee records like those described under s 49D(2) of the IR Act.
55 In relation to the requirements under s 49D(2), the claimant alleged the respondents did not maintain records that recorded the following information:
(a) the date on which Mr Zeyrek commenced employment with the Respondent;
(b) Mr Zeyrek’s classification under the Award;
(c) the time at which Mr Zeyrek started and finished work each day;
(d) the number of ordinary hours and the number of overtime hours worked each day and the totals for each pay period;
(e) the periods for which Mr Zeyrek was paid;
(f) details of work breaks including meal breaks;
(g) the gross and net amounts paid to Mr Zeyrek for each pay period;
(h) all leave taken by Mr Zeyrek whether paid, partly paid or unpaid. Originating Claim, [39].

56 Noting the respondents in the Statement of Agreed Facts have admitted that they failed to keep employment records for Mr Zeyrek in breach of s 49D(2) of the IR Act, a finding that the respondents breached the requirement to keep employment records as required under clause 32 may also be made if I conclude that the Award applies.
Parties’ Evidence & Submissions
57 Before the proceedings were listed for hearing, the parties each filed witness statements and outlines of submissions on the issue of whether the Award applied to the respondents. The claimant compiled the witness statements into a two volume 1040-page, Court Book (Court Book).
58 The claimant filed two witness statements in the proceedings with attachments. The claimant’s second witness statement was filed in reply to the statements from the respondents’ statements.
59 In addition, the claimant also filed the following:
i. A witness statement from Industrial Inspector Brian Ravenscroft (Mr Ravenscroft).
ii. Three witness statements with attachments from Mr Zeyrek, one of which, was filed in reply to the statements the respondents filed.
iii. Two witness statements from Mr Zeyrek’s wife, Fener Azbay (Ms Azbay) and
iv. Three witness statements from former Newroz employee, Yusuf Oruc (Mr Oruc).
60 Like Mr Zeyrek, Mr Oruc and Ms Azbay both provided additional witness statements in reply to the respondents’ evidence.
61 The respondents, for their part, filed eight witness statements. As most of these witnesses are members of the Karakuyu family and for the purposes of avoiding confusion, I have with one exception respectfully referred to these witnesses using their first names as follows:
i. Mr Kahraman Karakuyu, the first respondent (Kahraman);
ii. Mr Hasan Karakuyu (Hasan);
iii. Mr Huseyin Karakuyu (Huseyin);
iv. Ms Nilufer Karakuyu (Nilufer);
v. Ms Fatma Kara (Fatma);
vi. Mr Mehmet Mavi (Mehmet);
vii. Mr Mehmet Yasar (Mr Yasar); and
viii. Mr Umut Ozkalfa (Umut).
Hearing of the Claim
62 The case was heard across five days, 8 April 2024  12 April 2024 (hearing). Mr Ravenscroft was the only witness who was not called to be cross-examined. As a result, Mr Ravenscroft’s witness statement was accepted into evidence by consent.
63 An interpreter was required to assist with the provision of evidence from witnesses for the duration of the hearing. When a providing a summary of the evidence from each witness, I will indicate who required the assistance of an interpreter.
64 The claimant was represented throughout the proceedings by the State Solicitor’s Office (SSO). Counsel John Carroll (Mr Carroll) and Isabel Inkster (Ms Inkster) from the SSO appeared at the hearing for the claimant. The respondents were represented by counsel, Steven Heathcote (Mr Heathcote).
Onus of Proof
65 Before the claimant commenced the proceedings, the IR Act was amended with effect from 22 June 2022 to include the reverse onus under s 83EB, which applies in award contravention cases, where an employer has failed to provide payslips, keep time and wages records or to make them available for inspection.
66 Section 83EB provides as follows:
83EB. Employer to have burden of disproving certain allegations by applicant under s. 83
(1) In proceedings under section 83, the employer has the burden of disproving an allegation by an applicant in relation to a matter if the employer —
(a) was required under this Act or the LSL Act to —
(i) make or keep a record in relation to the matter; or
(ii) give a pay slip in relation to the matter; or
(iii) make available for inspection a record in relation to the matter;
and
(b) failed to comply with the requirement.
(2) Subsection (1) does not apply if the employer provides a reasonable excuse for the failure to comply with the requirement.
How the reverse onus works
67 The reverse onus, which is in similar terms to s 557C the Fair Work Act 2009 (Cth) was included in the IR Act to make it easier for claimants to prove award contraventions in cases where, as in the present case, an employer fails to keep or maintain employment records.
68 The way the reverse onus under s 557C applies in practice was considered by the Federal Court in Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627; (2019) 290 IR 331 (Ghimire v Karrivew).
69 In Ghimire v Karrivew, Colvin J held that discharging the reverse onus under s 557C of the Fair Work Act requires a respondent to affirmatively prove, on the balance of probabilities, that it did not engage in the conduct alleged.
70 To discharge the reverse onus, it is not enough that there may be reasons to question the credibility of the accounts provided by the claimant’s witnesses. The respondents are required to provide persuasive evidence in support of their position. Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 at [15]  [16] (Colvin J).

71 Therefore, if in the context of the present case, I conclude the reverse onus applies, the respondents are required to prove, on the balance of probabilities that Mr Zeyrek did not work the hours he said he did.
Does the reverse onus have retrospective effect?
72 Mr Heathcote submitted the reverse onus under s 83EB(1) did not apply in the present case. He submitted this is because the reverse onus was not in force at the time both the records and the award contraventions, were alleged to have occurred.
73 Referring to Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 (Maxwell), Mr Heathcote submitted that in the absence of some clear statement in the IR Act to the contrary, it is to be assumed the reverse onus in s 83EB(1) does not apply with retrospective effect. On this basis and despite the respondents having admitted the records contraventions, Mr Heathcote submitted the onus of proving the award contraventions fell to the claimant.
74 Mr Carroll argued s 83EB of the IR Act applies because it does not purport to retrospectively alter the respondents’ rights, liabilities or obligations. Rather, it only changes the way a contravention of those obligations are to be proved in Court.
75 Referring to the decision of the Tasmanian Court of Criminal Appeal in Attorney-General’s Reference No 1 of 2004 [2005] TASSC 10 (A-G Tas CCA) Mr Carroll submitted the determinative factor is whether s 83EB of the IR Act only affects the manner in which existing rights and obligations are to be determined.
76 Mr Carroll submitted that if the section does no more than affect the way in which the case involving compliance with existing rights and obligations is tried, there is no presumption against retrospectivity.
Law on the retrospective application of statute
77 In Maxwell, Dixon CJ at 267 when considering whether a statute had retrospective application stated:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger: Republic of Costa Rica v Erlanger (1876) 3 Ch3 D3, at p. 69.

No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done.
78 The question of whether a provision that changed the onus of proof had retrospective application was considered in A-G Tas CCA.
79 A-G Tas CCA dealt with a case involving a contravention of s 7(1)(a) the Misuse of Drugs Act 2001 (Tas) (Misuse of Drugs Act) which created the following offence:
A person must not cultivate a controlled plant –
· with the intention of selling the controlled plant or any of its products.
80 The defendant (Mr Crane) was charged with committing the offence of cultivating cannabis contrary to s 7(1)(a) of the Misuse of Drugs Act. At the time of the alleged offence, s 7(2) contained an onus of proof provision in the following terms:
If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of evidence to the contrary, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence.
81 After the defendant was charged but before his case was referred to trial, s 7(2) of the Misuse of Drugs Act was amended as follows:
If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence.
82 At trial, the judge at first instance ruled that the amendment to s 7(2) did not apply to the defendant. The issue to be determined by the Court of Criminal Appeal was whether the trial judge had made an error with this finding.
83 In AG Tas CCA, Underwood CJ, with whom Crawford and Evans JJ agreed, reviewed the development of the relevant case law including Ah Hing v Hough (1926) 28 WALR 95, Maxwell, and Richardson v Shipp [1970] Tas SR 105. He also referred to Rodway v R [1990] HCA 19; (1990) 169 CLR 515 (Rodway) at 521:
But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.
84 Underwood CJ also referred to Rodway at 522:
Some procedures at a trial provide fundamental protection against wrongful conviction, but, in conformity with the passage already quoted from the judgment of Dixon CJ in Maxwell v Murphy, this ordinarily provides no basis for regarding them as having a retrospective operation simply because the trial concerns events and transactions past and closed. The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity. Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms: Potter v Minahan ((1908) 7 CLR 277, at p. 304); Baker v Campbell ((1983) 153 CLR 52, at pp 96-97, 104, 116, 123); Sorby v The Commonwealth ((1983) 152 CLR 281, at pp 289-290); Hamilton v Oades ((1989) 166 CLR 486 at p 495).
85 After referring to these passages, Underwood CJ at [16] observed:
Of particular relevance to the present issue in the two passages I have just cited are the following two propositions:
· firstly, that there is no right to be tired in a particular way (at least not before the trial begins); and;
· secondly, that the determinative factor is whether the amendment affects only the manner in which existing rights and obligations are to be determined. If it does no more than affect the way existing rights and obligations are to be tried, there is no presumption against retrospectivity.
86 At [17] and [18] Underwood CJ reached the following conclusions:
These propositions are valid even if the amendment affects what might be generally regarded as a fundamental protection against wrongful conviction. Accordingly, it seems to me that Attorney-General’s Reference No 1 of 1988, Ah Hing v Hough and, insofar as it decided to the contrary to those propositions, Richardson v Ship can no longer be regarded as good law. Further, Newell v R should be confined to the unusually narrow circumstances of that case, namely, where a procedural amendment came into operation after the formal commencement of the trial.
At the time of the alleged commission of the offence, Mr Crane ‘had acquired no right to a particular mode of procedure at his trial’, per Rodway at 523. The [Misuse of Drugs] Act, s 7(2), before and after amendment, concerned only the nature and extent of the evidence required to establish the offence charged. The amendment did no more than change the manner in which the statutory factual presumption could be displaced. It did not touch Mr Crane’s rights, obligations or liabilities that he had acquired, or was subject to, at the date the State alleged he committed the offence charged. Although it might be said that the amendment touched an important protection, or made a fundamental change, it clearly did no more than affect the way the accused’s rights and obligations were to be contested in court, and therefore did not fall within the presumption against retrospectivity.
Section 83EB applies to the present case
87 I have reviewed the authorities the parties referred me to and carefully considered whether the reverse onus under s 83EB(1) of the IR Act is distinguishable from the provision the Court of Criminal Appeal was required to examine in A-G Tas CCA.
88 Noting the similarity of the reverse onus to s 7(2) of the Misuse of Drugs Act, I accept that s 83EB(1) of the IR Act only affects the way a trial on the respondents’ compliance with its existing obligations under the Award is to be conducted.
89 It therefore follows that I consider the approach of the Court of Criminal Appeal in A-G Tas CCA, applies in the present case. In my view there is no presumption against the retrospective application of s 83EB of the IR Act. I accordingly find that this is a matter to which the reverse onus in s 83EB applies.
90 However, despite having reached the conclusion s 83EB of the IR Act applies, there is still one further matter I am required to have regard to before the reverse onus under s 83EB(1) IR Act is engaged.
91 Although the respondents have admitted to the records contraventions, under s 83EB(2), I must be satisfied the excuse the respondents provided for their failure to comply was unreasonable.
Summary of the Parties’ Evidence
92 Before dealing with the issue of whether respondents’ excuse for their failure to comply was reasonable, it is necessary to provide a summary of the parties’ evidence. In providing this summary, efficiency dictates that I summarise the parties’ evidence on all the matters at issue in this case.
93 In order, I will first describe the evidence from the Department’s inspectors, following which I will summarise the evidence that was given by the other witnesses in the case. I will also set out my observations on the evidence each witness provided.
Evidence of Brian Ravenscroft
94 Mr Ravenscroft was called by the claimant to give evidence on how the respondents conducted themselves in response to the Department’s investigation into Mr Zeyrek’s complaint.
95 As indicated earlier, Mr Ravenscroft provided one witness statement which was accepted into evidence by consent. He was not cross-examined.
96 He confirmed that the Department’s investigation into Mr Zeyrek’s complaint commenced in or around July 2021.
Visit to Newroz on 22 July 2021
97 Mr Ravenscroft stated that as part of the Department’s inquiries, he attended Newroz on Thursday, 22 July 2021 at 6.05 pm, together with two other industrial inspectors, one of whom was Industrial Inspector Higgs (Inspector Higgs).
98 Mr Ravenscroft said the purpose of the visit was to conduct an unannounced inspection of employee records. Mr Ravenscroft said that before they attended Newroz, he and Inspector Higgs prepared a ‘Notice to Produce Employment Records’ for all employees employed at Newroz between 10 May 2017 and 22 July 2021 (NTP1).
99 Mr Ravenscroft attached a copy of NTP1 to his witness statement. The date by which the respondents were required to produce the documents sought by the notice was 5 August 2021.
100 Mr Ravenscroft stated that upon his arrival at Newroz, he noted the business provided a takeaway food service, as well as seating for approximately 20 people. He said that as he entered, he observed there were three workers in the shop, one who was taking an order from a customer, one who was making up kebabs in the rear food preparation area and the other who was standing behind the main counter alongside a coffee machine.
101 Mr Ravenscroft said he asked one of the men behind the counter if he could speak with the owner or manager of the business. One of the men, who turned out to be Mehmet, told Mr Ravenscroft that he was the manager and that no employment records were kept on the premises.
102 Mr Ravenscroft stated that he asked Mehmet to explain how employee start and finish times, rosters and the payment of wages were recorded. He said Mehmet responded by saying he had never seen these types of records at the shop and that he should speak to Huseyin. Mr Ravenscroft said Mehmet told him that Huseyin had gone home shortly before he arrived.
103 Mr Ravenscroft said that following this, Inspector Higgs gave NTP1 to Mehmet. He said he then observed Inspector Higgs tell Mehmet to make sure NTP1 was given to the owner of the business as soon as possible.
104 Mr Ravenscroft said he asked Mehmet to call Huseyin on his mobile phone. He said Mehmet called Huseyin and handed the phone to him. Mr Ravenscroft said the person he spoke to on the phone identified himself as Huseyin, Kahraman’s son. Mr Ravenscroft said Huseyin told him that Kahraman was the owner of Newroz.
105 Mr Ravenscroft said he told Huseyin that Mehmet had said that employee records were not kept on the premises. Mr Ravenscroft said Huseyin confirmed this was the case. He said Huseyin told him that some of the records were at his home and that some were with his accountant.
106 Mr Ravenscroft gave evidence that he told Huseyin Inspector Higgs had given Mehmet a notice to produce that required Kahraman to provide employment records for all Newroz employees.
107 Mr Ravenscroft said Huseyin told him that he would let his father know about the notice to produce, but as his father was elderly and was not good at reading or speaking English, he would attend to the notice himself.
Phone call from Kahraman
108 Mr Ravenscroft said that at 10.54 am on 23 July 2021, he received a telephone call from Kahraman. Mr Ravenscroft stated that he asked Kahraman if Mehmet was a manager for Newroz. He said Kahraman told him that Mehmet was his nephew, and that when Mr Ravenscroft attended Newroz on 22 July 2021, he was the manager in charge of the shop.
109 Mr Ravenscroft said Kahraman, who spoke with limited English, wanted him to talk with Huseyin, who Mr Ravenscroft said Kahraman had described as the overall manager for Newroz. Mr Ravenscroft said Kahraman told him that Huseyin could provide him with the information he needed.
Meeting with Newroz accountants
110 Mr Ravenscroft said that on 2 August 2021, Inspector Higgs provided him with a copy of an email that Harry Patel (Mr Patel), from accounting firm Lyra Livich (Lyra Livich), had sent him the same day. A copy of Mr Patel’s email was attached to Mr Ravenscroft’s witness statement. In his email, Mr Patel confirmed that he was the accountant for Newroz. He also requested a onemonth extension to provide the employment records sought by NTP1.
111 Mr Ravenscroft said that on 4 August 2021, he attended the offices of Lyra Livich in Balcatta, together with Inspector Higgs. He said the purpose of the visit was to meet with Mr Patel and to discuss his request for additional time to respond to NTP1.
112 Mr Ravenscroft said he and Inspector Higgs met with Mr Patel and Mr Michael Lyra (Mr Lyra) on this date. He said Mr Patel told him they did not have any employment records for Newroz because these were kept at the shop in East Perth. Mr Ravenscroft said Mr Patel told him that he only prepared Quarterly Business Activity Statements – Payroll Reports for Newroz (BAS payroll reports).
113 Mr Ravenscroft said he asked Mr Lyra to show him a copy of a recent BAS payroll report he had prepared for Newroz. He said Mr Lyra responded by handing him a copy of a 2019 BAS payroll report. Mr Ravenscroft said he noted Mehmet’s name was recorded as an employee on the report.
114 Mr Ravenscroft said he asked Mr Lyra if he had all the BAS payroll reports for Newroz dating back to 2017. He said Mr Lyra told him that he believed he had them and he would provide copies of these, together with any other records he could find by 28 August 2021.
115 Mr Ravenscroft said he granted an extension of time for the respondents to respond to NTP1 until 28 August 2021. Following this Inspector Higgs issued Mr Patel with a revised notice to produce with the new date (NTP2).
116 During his meeting with Mr Patel and Mr Lyra, Mr Ravenscroft said he asked whether they had bank records showing funds being transferred from Newroz to the Australian Taxation Office (ATO) for employee tax. Mr Ravenscroft said Mr Lyra told him that Kahraman paid everything in cash.
117 Mr Ravenscroft said he told Mr Lyra that he did not believe this would be possible and that he could not imagine anyone walking up to the ATO with a bag of cash, to pay their employees’ tax. He said Mr Lyra did not answer or make any further comments when asked about this.
Meeting at Newroz – 4 August 2021
118 Mr Ravenscroft said that following his meeting at Lyra Livich, he drove to Newroz in East Perth with Inspector Higgs. He said that upon his arrival he again spoke with Mehmet, who Mr Ravenscroft said he recognised from his previous visit on 22 July 2021.
119 Mr Ravenscroft said he asked Mehmet to show him the employment records Mr Lyra told him were kept at the shop. Mr Ravenscroft said Mehmet reached under the front counter and retrieved what appeared to be a new time and wages record book (time and wages book).
120 Mr Ravenscroft said he reviewed the time and wages book and noted there was only one complete entry for an employee named Umut Ozkalfa, and that it was dated 4 August 2021. Mr Ravenscroft said he asked Mehmet if Huseyin was available.
121 Mr Ravenscroft stated that Mehmet told him Huseyin had gone home and would be back the following morning. Mr Ravenscroft said he responded by telling Mehmet that he would be returning with Inspector Higgs after 9.00 am the following day.
5 August 2021 Visit to Newroz
122 On 5 August 2021, Mr Ravenscroft said he returned to Newroz accompanied by Inspector Higgs. He said they arrived at 10:40 am and were greeted by a male person who identified himself as Huseyin.
123 Mr Ravenscroft said he observed another male behind the counter, who was working the coffee machine. He said the male person identified himself as Kahraman, who Mr Ravenscroft said also described himself the owner of Newroz.
124 Mr Ravenscroft stated that Kahraman told him he did not speak or understand English very well. He said Kahraman asked if his son Huseyin could assist with interpreting.
125 Mr Ravenscroft said Kahraman invited him and Inspector Higgs to take a seat at a table in the premises. Mr Ravenscroft said he noted that Kahraman spoke reasonable English. He said he then asked Kahraman to tell him about the Newroz business.
126 Mr Ravenscroft said Kahraman told him that Newroz mostly employed family and casual workers and the first time they employed anyone as a fulltime worker was when they put Mehmet on the books in February 2021.
127 Mr Ravenscroft said that when he was comfortable that Kahraman could understand English to continue a conversation, he cautioned Kahraman and Huseyin by saying words to the effect of:
We are here to ask you some questions about your employment records. You do not have to answer any of my questions, however, if you choose to do so, I will be making some notes of what you say and the answers you provide may be given as evidence in the Industrial Magistrate’s Court at a later date. Witness Statement of Brian Edward Ravenscroft, paragraph [84].

128 Mr Ravenscroft said that Huseyin and Kahraman both confirmed they understood the caution they were being given.
129 Mr Ravenscroft said that in the conversation that followed, Huseyin and Kahraman confirmed they had received NTP1. Mr Ravenscroft also said he told them that he had met with Mr Patel and Mr Lyra the day before and they had told him employee records were being kept at the Newroz premises.
130 Mr Ravenscroft stated that Huseyin gave him the time and wages book, which he said now contained an additional (albeit incomplete entry) for Mehmet. Mr Ravenscroft said he asked Huseyin words to the effect of:
This book was not here when we visited on 22 July. It looks brand new – when did you get it? Witness Statement of Brian Edward Ravenscroft, paragraph [96].

131 Mr Ravenscroft said Huseyin told him that his accountant had said the business needed to get a wages book, so he had bought one book at Officeworks after Mr Ravenscroft’s visit to the Newroz shop on 22 July 2021. Witness Statement of Brian Edward Ravenscroft, paragraph [97].

132 Mr Ravenscroft said he observed Inspector Higgs take photographs of the time and wages book; copies of which Mr Ravenscroft attached to his witness statement. He said he asked Huseyin to explain why he had only recently started using a time and wages book. He said Huseyin told him that in the past, he had not kept very good records.
133 Mr Ravenscroft said he asked Kahraman whether he was aware that he was required to keep records of start and finish times for all his workers. Mr Ravenscroft said Kahraman responded by stating that he had been in business for over 20 years and had no idea he had to keep records for all employees.
134 Mr Ravenscroft said he asked Huseyin what other records he kept. He said Huseyin handed him some ruled A4 pages with handwritten notes which showed the hours worked by three Newroz employees for the period January 2021 to March 2021 (2021 handwritten records). Witness Statement of Brian Edward Ravenscroft – Attachment ‘BER 15’.

135 Mr Ravenscroft said his visit to Newroz ended with Huseyin and Kahraman both telling him they would make sure their accountants provided him with all the records he required.
136 Following this visit to Newroz Mr Ravenscroft said that on 25 August 2021, he received a further email from Mr Patel. Attached to this email were seven pages of BAS payroll reports showing gross wages and taxation deductions in the period commencing 10 May 2017 until 22 August 2021. Mr Zeyrek’s name was one of the names that appears in the BAS payroll reports. Witness Statement of Brian Edward Ravenscroft – Attachment ‘BER 18’

Observations about Mr Ravenscroft’s evidence
137 During the hearing, Mehmet, Kahraman and Huseyin were not questioned about their interactions with Mr Ravenscroft or Inspector Higgs.
138 I have therefore proceeded on the basis that Mr Ravenscroft’s witness statement, including the evidence about his interactions with Kahraman, Mehmet and Huseyin and their conduct in responding to NTP1 and NTP2 was unchallenged and is not disputed.
The claimant’s evidence
139 The claimant filed two witness statements in the proceedings. The claimant’s first witness statement was mostly directed to the following matters:
(a) her issuance of the Notices to Produce and the response that she received; and
(b) the methodology she used for the underpayment calculations.
140 I have set out in some detail the claimant’s evidence on the methodology she used to make the underpayment calculations. This is because the underpayment calculations show how the claimant has applied the various provisions of the Award to the evidence Mr Zeyrek provided to the Department on the hours he said he worked.
141 As I indicated previously at [35], the underpayment calculations not only provide particulars of the number of award contraventions, but when they occurred and by how much the claimant says Mr Zeyrek was underpaid. They do this by showing how the claimant has applied the various provisions of the Award to the evidence Mr Zeyrek provided to the Department, regarding the hours of work he said he regularly worked at Newroz.
142 In her first witness statement, the claimant said that in March 2022, she commenced investigations into Mr Zeyrek’s complaint. As part of her investigation, the claimant reviewed the documents that were provided to Mr Ravenscroft and Inspector Higgs in response to NTP1 and NTP2.
143 At this stage of her investigation the only documents the respondents had provided to the Department were the:
(a) BAS payroll reports; See the Witness Statement of Jillian Denise Dixon (claimant’s first statement) – Attachment ‘JDD 3’; see also the Witness Statement of Brian Edward Ravenscroft – Attachment ‘BER 18’.
and
(b) 2021 handwritten records. See claimant’s first statement – ‘JDD 4’; see also the Witness Statement of Brian Edward Ravenscroft – Attachment ‘BER 15’.

Notices to Produce
144 The claimant said that on 14 April 2022, after she reviewed the BAS payroll reports and the 2021 handwritten records, she issued three of her own notices to produce employment records for Mr Zeyrek.
145 As was set out in the Statement of Agreed Facts, a response to the Notices to Produce was required by 26 April 2022. Copies of the Notices to Produce the claimant issued were attached to her witness statement.
146 Noting the claimant and Mr Ravenscroft between them, issued the respondents with five notices to produce, I will, when separately referring to a notice to produce, do so in the order in which they were generated.
147 To this end, the claimant issued Notices to Produce as follows:
(a) To the respondents (or as the claimant described, the partnership) (NTP3);
(b) to Kahraman Karakuyu in his capacity as company director and company secretary of Karakuyu Pty Ltd as Trustee for the Karakuyu Family Trust (NTP4); and
(c) to the accountants, Mr Lyra and Toni Livich, in their capacity as company directors of Ltdm Holdings Pty Ltd T/A Lyra, Livich and Associates (NTP5).
148 The claimant gave evidence that she prepared covering letters that were sent with each one of the Notices to Produce. The claimant said that on 12 April 2022, she emailed the covering letters and copies of NTP3 and NTP4 to Kahraman’s personal email address, which she said Hasan provided to her during a prior telephone conversation.
149 Copies of the emails and covering letters the claimant sent to the respondents, were attached to her witness statement. In addition to sending emails, the claimant said she also engaged a process server to deliver the Notices to Produce and covering letters to each of the named recipients.
Response from the accountants
150 The claimant said that on 20 April 2022, she received a telephone call from Mr Lyra who requested an extension of time to respond to NTP5. After the claimant asked Mr Lyra to make his request in writing, Mr Lyra emailed the claimant the same day and sought a 3  4 week extension of time.
151 The claimant said she responded to Mr Lyra by email on 26 April 2022 and granted him an extension of time until 6 May 2022. Despite this, the claimant said that by 6 May 2022, she had not received a response to NTP3 or NTP4. The claimant also said she had received no further reply from Mr Lyra to NTP5.
152 The claimant said that on 8 May 2022, she received an email from Mr Lyra, that attached ‘wage records’ for Mr Zeyrek. In his email, Mr Lyra stated that Hasan had provided records, for the years 2020 and 2021.
153 The claimant said that when she reviewed the records Mr Lyra had produced, she observed they appeared to be weekly time and wage records for Mr Zeyrek from July 2019 to June 2021 (2019  2021 wage records). Claimant’s first statement – Attachment ‘JDD 16’.
The claimant noted the 2019  2021 wage records did not however, show the dates of each shift worked or the start and finish times.
154 The claimant said she observed the 2019  2021 wage records did not relate to the period the respondents were operating the business. Rather, the timeframe for the 2019  2021 wage records followed the change in ownership. For this reason, the claimant took the view the respondents had not produced any employment records in response to NTP3.
Employment records that were not produced
155 I have extracted from NTP4 a list of some of the employment records which the claimant sought from Kahraman and Hasan as directors of Karakuyu Pty Ltd in relation to Mr Zeyrek (Şahin). They relevantly included the following:
(i) Şahin’s:
(a) Commencement date;
(b) Termination date;
(c) Award classification;
(d) Job duties;
(e) Employment status (casual, part-time or full-time); and
(f) Rate of pay (including any changes thereto and the date those changes occurred).
(ii) Employment contract, if any
(iii) Tax File Number (TFN) Declaration form completed in respect of Şahin’s employment with the business
(iv) PAYG payment summaries (income statements) prepared for Şahin for each financial year
(v) Original payroll records (such as payroll report or payslips) or any other kind of record kept detailing payment of wages to Şahin for each pay period between 1 July 2016 and 31 December 2018 and how those wages were calculated
(vi) Original records of start and finish times and breaks taken (such as time and wages records, timecards or rosters) for each pay period between 1 July 201 and 31 December 2018
(vii) Original records of total hours worked by Şahin for each week of Şahin’s employment
(viii) Details of all annual leave taken by Şahin (amounts and when taken)
(ix) Details of all sick leave taken by Şahin (amounts taken and when)
(x) Details of any periods of unpaid leave taken by Şahin (amounts and when taken)
(xi) Details of any other gaps or breaks in Şahin’s period of employment (including when, why and length of time
(xii) All correspondence (including emails or text messages) and documentation relating to the employment relationship between Şahin and Newroz Kebabs including, but not limited to:
(a) employment commencing;
(b) employment ending; and
(c) working hours or start and finish times.
(xiii) Documentary evidence relating to the change in ownership of Newroz Kebabs or Newroz Kebabs and Turkish Bakery in East Perth from D Karakuyu & K Karakuyu (ABN 70 933 285 261) to the Trustee for Kahraman Family Trust (ABN 83 987 259 437) in or about January 2019.
156 The claimant said that because Hasan and Kahraman did not produce any documents in response to the notice, she took the view the respondents had not complied with NTP4.
Documents that were produced
157 Upon receiving the 2019  2021 wage records, the claimant said she compared them with the BAS payroll reports and the 2021 handwritten notes that Mr Ravenscroft obtained during his inspection.
158 The claimant said she observed that in contrast to the BAS payroll reports:
(a) the 2021 handwritten records showed Mr Zeyrek had regularly worked 20 hours a week and was paid $500 a week in the period 9 January 2021  27 March 2021; and
(b) the 2019  2021 wage records showed Mr Zeyrek worked irregular hours between the same dates with weekly hours varying between 0, 8, 9, 10, 12.5, 14 and 15 hours with no weekly payments being greater than $375.
159 The claimant said that because of the inconsistencies between the 2021 handwritten records, the 2019  2021 wage records and the BAS payroll reports, she formed the view that none of the records the respondents produced for the purpose of determining the true nature of the employment relationship between Mr Zeyrek and Newroz, were reliable.
160 The claimant also formed the view the records the respondents produced in response to the Notices to Produce may have been falsified.
Approach to Mr Zeyrek’s evidence for the underpayment calculations
161 In her statement, the claimant said that because the respondents had not produced any employment records that provided evidence of the date on which Mr Zeyrek commenced work at Newroz, she decided to conservatively apply the evidence he gave to her about his start date.
162 Accordingly, the claimant concluded that Mr Zeyrek commenced employment at Newroz in 2013; 6 months after his arrival in Australia on 31 July 2012 and a couple of months before his fiancé Ms Azbay arrived in Australia on 18 September 2013.
163 The claimant said that because the respondents had not provided any employment records and Mr Zeyrek had advised that he regularly and consistently worked in excess of 76 hours a fortnight, she determined Mr Zeyrek was employed at Newroz on a fulltime basis.
164 The claimant also said that because Mr Zeyrek had advised he was paid in cash every Sunday, she had approached his claim on the basis he was paid weekly, rather than fortnightly.
165 In her first witness statement, the claimant explained how she made the underpayment calculations, which included a separate calculation for Mr Zeyrek’s entitlement to unpaid annual leave and loading.
166 The claimant proceeded on the basis Mr Zeyrek was usually paid $1,280 per week (the equivalent of 64 hours per week at the rate $20 per hour), but for which Mr Zeyrek said he was paid at a daily rate of $220 for an 11-hour shift.
Excel spreadsheets
167 The claimant explained that she prepared two Excel spreadsheets for the two different claim periods. They show that 513 award contraventions are alleged to have occurred across 140 separate weekly pay periods during the primary claim period.
168 For the alternative claim period the Excel spreadsheets show that 392 award contraventions are alleged to have occurred across 106 weekly pay periods.
169 The claimant, in her first witness statement and in the Excel spreadsheets, identified the award provisions which she alleged the respondents had breached and the number of contraventions.
170 The claimant said that each Excel spreadsheet is comprised of four sheets. Sheet One identifies the total underpayment amounts and sets out in summary form how these totals were reached.
171 The claimant said Sheet Two records how she allocated ordinary hours, overtime hours, additional rates and a meal break loading to a standard fortnight, based on the minimum of 64.5 hours per week that Mr Zeyrek said he worked. This sheet in effect provides a template on how each hour should be paid per shift pursuant to the relevant provisions of the Award.
172 Sheet Three applies the shift spread template to each of the pay periods Mr Zeyrek said he worked at Newroz during the relevant claim period and compares the weekly amounts it is alleged he was entitled to receive under the Award, with what Mr Zeyrek says he was paid per shift.
173 The claimant said that because Mr Zeyrek said he was paid a daily rate of $220 for an 11hour shift, she approached the allocation of this day rate by:
(a) First allocating the $220 to the value of any ordinary hours (Monday - Friday) worked in a single shift; and then
(b) Allocating the remaining balance to the value of any overtime at time and half rates, before allocating the remainder to the value of any overtime at double time.
174 The claimant said she applied a cascading allocation of the $220 day rate because she considered this approach was not only more reflective of Mr Zeyrek’s evidence but was of some benefit to the employer as the entire value of the daily amount Mr Zeyrek said he received was offset against some part of his claimed entitlements under the Award.
175 In her underpayment calculations the claimant said she allocated 10 ordinary hours per day (Monday to Sunday), until 76 ordinary hours were reached in a fortnight. The claimant said she did this because clause 8(1)(c) of the Award allowed up to 10 ordinary hours to be worked in a single shift.
176 The claimant said that after she recorded 76 ordinary hours for a fortnight, she applied overtime at the rates set out in clause 10(2) of the Award to the balance of hours worked in that particular fortnight. Where more than 10 ordinary hours were recorded as being worked in a single day, she applied the overtime rates in clause 10(2) to the remaining hours worked in excess of 10 ordinary hours.
177 The claimant said that where she recorded ordinary hours as being worked after 7.00 pm, and before 7.00 am Monday to Friday, she included the additional rate of $1.66 per hour in accordance with clause 9(1) of the Award. She said she identified this in Sheet Two as a ‘Late Night Penalty’.
178 The claimant said that where more than six ordinary hours were recorded as being worked in a single shift, and there was no evidence of a meal break taken, she included the payment meal break loading under clause 13(1)(b) of Award in the amount of 0.5 hours of work. The claimant said she included the meal break loading where more than six ordinary hours were worked in a shift, because there was no evidence Mr Zeyrek took a meal break of half an hour or more.
179 The claimant said she capped the meal break loading at 0.5 hours per shift because there was evidence that Mr Zeyrek often received a free meal to eat while he was working, and the time at which Mr Zeyrek had this meal was not known.
180 The claimant described Sheet Four as an overview of the monetary value of each different employment entitlement claimed from weekly pay period to weekly pay period and shows the underpayments the claimant identified across each pay period.
Internet and Social Media Searches
181 The balance of the claimant’s first witness statement and the contents of her second statement were mostly directed to internet and social media searches that variously showed images of Mr Zeyrek at Newroz, the food served, reviews of the business, opening and closing times and the Newroz premises.
182 The claimant was extensively crossexamined by Mr Heathcote about this material. In her answers the claimant confirmed that she was unable to give direct evidence about who took the various images, who authored the various social media posts, reviews and the like or when those materials were prepared.
183 As a result, I accept there are limits to the probative value of this material when it is considered alone or in isolation. Rather, I have taken the view this material may be relied upon where a witness can say who took the photograph or made the post, when it was taken or made and a witness is able to provide the context in which it was taken or made.
Observations on the claimant’s evidence
184 Like Mr Ravenscroft’s evidence, much of what the claimant said in her witness statement regarding her underpayment calculations, her investigation of Mr Zeyrek’s complaint and the records the respondents produced in response to the Notices to Produce was not challenged in cross-examination.
185 For this reason, I have proceeded on the basis that the majority of the claimant’s evidence was unchallenged and is not disputed.
Mr Zeyrek’s evidence
186 During the hearing Mr Zeyrek gave evidence with the assistance of an interpreter. He provided three witness statements, each of which were translated from Turkish to English.
187 Mr Zeyrek, who is 43 years of age, said that on 31 July 2012 he migrated to Australia on a student visa. He said that upon his arrival in Perth, he purchased a 12-month English course from a language school. Mr Zeyrek said he participated in the course for 2  3 months but he did not finish it.
188 After leaving the language school, Mr Zeyrek said he worked at two different kebab shops before starting work at Newroz. He said he did not last long in his previous jobs because he did not speak English.
189 Mr Zeyrek said he came to be employed at Newroz, after meeting Huseyin and other Newroz employees through the Kurdish Association.
190 Mr Zeyrek said he could not remember exactly when he started work at Newroz. He said he believed it was in 2013 about six months after he arrived in Australia. Mr Zeyrek said he was employed at Newroz after he received a phone call from Kahraman.
191 Mr Zeyrek said Kahraman offered him a job at Newroz because another employee, ‘Umair’ was leaving and the business needed staff. Mr Zeyrek said that following Kahraman’s phone call, he went into Newroz the following day and met with him.
192 Mr Zeyrek said Kahraman told him he would be making and selling kebabs. He also said he would be cleaning the shop. In his statement, Mr Zeyrek said Kahraman told him his working hours would be:
(a) Mondays from 12.00 pm to 11.00 pm;
(b) Tuesdays off;
(c) Wednesdays and Thursdays from 12.00 pm to midnight;
(d) Fridays from 12.00 pm to 5.00 am or maybe 6.00 am the following day;
(e) Saturdays from 5.00 pm to 5.00 am or 6.00 am the following day; and
(f) Sundays from 5.00 pm to 11.00 pm.
193 Mr Zeyrek said Kahraman told him that everyone who worked at night had to keep the shop open until the customers, including those from a nightclub nearby, stopped coming.
194 Mr Zeyrek said Kahraman never told him whether he was a fulltime, parttime, or casual employee. Mr Zeyrek said that before he started working at Newroz, there was never a discussion about whether he was a casual or a fulltime employee.
195 Mr Zeyrek said that following his arrival in Australia, he obtained a Refugee Protection Visa in May 2016 (protection visa). He said the protection visa allowed him to work without restrictions. Mr Zeyrek said that prior to being granted a protection visa, he held a ‘bridging visa’ which also allowed him to remain and work in Australia.
196 Mr Zeyrek described Newroz as a Turkish dinein and takeaway restaurant. He also said it could be called a ‘kebab shop’. Mr Zeyrek said he believed Kahraman was his employer, that Newroz was a family business and that Kahraman was the owner.
197 Mr Zeyrek said Kahraman’s family included:
(a) Kahraman’s wife – (Döne, the second respondent)
(b) Kahraman’s two sons – Hasan and Huseyin;
(c) his three daughters – Fatma, Nilufer and Aysun;
(d) his sonsinlaw Ali Ihsan Kara (Ali Ihsan) and Ali Dogan;
(e) his nephews, Mehmet Mavi and Ibrahim Karakuyu.
198 Mr Zeyrek said he believed Kahraman was the owner of Newroz because that was how he introduced himself during their first meeting. He said that while Kahraman and Döne did not work in the shop, Kahraman would often stop by to see how business was going. Mr Zeyrek said Kahraman would usually visit at lunch time and in the evening.
199 Mr Zeyrek said he worked regularly with Hasan, Mehmet and Ali Ihsan. He said Hasan and Mehmet worked the whole time he was employed at Newroz. He said Hasan acted like the manager when he was in the shop and dealt with tasks such as placing orders to suppliers, making telephone calls, dealing with the landlord and the paperwork for the accounts. Mr Zeyrek said Hasan came and went as he pleased.
200 Mr Zeyrek said Mehmet was more senior because he was employed for longer and was part of the Karakuyu family. He said Mehmet worked set hours.
201 Mr Zeyrek said he worked with Ali Ihsan between 2013 and 2018 and Huseyin from 2015. He said family members were not the only people who worked at Newroz. Mr Zeyrek said that when first started, he regularly worked with Mr Oruc.
202 Mr Zeyrek gave evidence that in or around February 2017, Newroz was expanded to include a bakery and more customer seating. He said that prior to this expansion, the shop was closed for renovations for a week. Mr Zeyrek said he was not paid while the store was closed.
203 Mr Zeyrek described the duties he performed in both his first and supplementary witness statements. His duties included preparing salads and cooking meat for kebabs and burgers, cleaning, taking orders and payments from customers, and serving customers.
204 He said that once the bakery was open, he also made pizza, gözleme and pide. Mr Zeyrek said he was not responsible for making bread or dough. Mr Zeyrek said he used the knives and equipment the business provided to prepare food. He said he would clean the shop before closing and after the customers stopped coming in.
205 Mr Zeyrek said his cleaning duties included washing dishes, cleaning the floors, hot plate/grill, deep fryer, doner machine and the oven. He said he did more extensive cleaning on Sundays, which included cleaning the build-up of fat off the walls behind the grill and from the exhaust fans. Mr Zeyrek said he was never supplied gloves for cleaning. He said he cleaned without wearing gloves, while using bleach and detergents.
206 Mr Zeyrek said he closed the shop each time he worked. To do this, he had a key to the shop. He said closing the shop included counting the takings and locking the doors. Mr Zeyrek said that from around 2016 or 2017, he also took cash from the till to Kahraman’s home in Stirling. Mr Zeyrek said he only did this when Kahraman did not come in to collect the money or if Hasan was not in the shop at closing time.
207 Mr Zeyrek said he would take money to Kahraman’s home even when his shifts ended in the early hours of the morning. Mr Zeyrek said that when he needed to take cash to Kahraman’s home, he would either drive there or he would go together with Mehmet.
208 Mr Zeyrek gave evidence that when he dropped the money off to the Kahraman’s house, a family member would be there to collect it. He said that Kahraman, Döne, one of his daughters or Hasan would be there to take the money. Mr Zeyrek said he would usually stay for about 10  15 minutes and talk about the day’s trading.
209 Mr Zeyrek said there were no rosters, timesheets, or other employment records kept at Newroz. He said he was not given a roster or asked to keep a record of his start and finish times.
210 Mr Zeyrek said his regular working days did not change. He said Newroz was open every day of the year except Christmas which was the only day the shop was closed. Mr Zeyrek said between 2016 and 2018, his minimum weekly working hours were:
(a) Mondays – 12.00 pm to 11.00 pm;
(b) Tuesday – off;
(c) 12.00 pm to midnight Wednesdays and Thursdays;
(d) 12.00 pm to 2.00 am on Fridays;
(e) 5.00 pm to 2.00 am on Saturdays; and
(f) 5.00 pm to 11.30 pm on Sunday nights.
211 Mr Zeyrek said the earliest he finished on Sundays was at 11.30 pm, even if service to customers stopped at 11.00 pm. He said this was because he spent about half an hour cleaning. Mr Zeyrek said he always worked a minimum of 64.5 hours per week.
212 Mr Zeyrek stated that he never took a meal or rest break during his employment at Newroz. He said this was because there was always work to be done. He did, however, say he was usually provided with a free meal to eat during his shift, such as a kebab. He said he would have to eat it while standing in the kitchen.
213 Mr Zeyrek said he did not realise he was entitled to meal breaks. He said that as his English improved and he became more aware from speaking to people from other workplaces that he was entitled to take breaks. Despite this, he says he was too embarrassed to ask for a break.
214 Mr Zeyrek gave evidence that he was required to wear a uniform to work. He said the uniform Kahraman gave him when he first started work was a blue Newroz T-shirt. Mr Zeyrek said he was not required to pay for uniforms. He said the business did not clean his uniforms and that he washed his own Tshirts at home.
215 Mr Zeyrek said he was paid a daily rate of $200 for each day he worked at Newroz, until the beginning of 2016, when Huseyin increased his daily rate from $200 to $220 per day. Mr Zeyrek said he was paid this daily rate if he worked around 11 hours at the shop in a single day. If the shop stayed open and he was required to work additional hours, Mr Zeyrek said he was paid $20 an hour for each extra hour he worked.
216 Mr Zeyrek said the hourly rate of $20 an hour for the extra hours he worked did not increase when his daily rate changed in 2016. He said he was not paid anything extra for the time he spent cleaning, after the shop closed to customers. Mr Zeyrek said that between 2016 and 2018, the corresponding pay he received for the hours he worked was:
(a) Mondays (11 hours: $220);
(b) Wednesdays and Thursdays (12 hours: $240 – $220 plus $20 for the additional hour worked);
(c) Fridays (14 hours: $280 – $220 plus $60 for the additional three hours)
(d) Saturdays (9 hours: $180); and
(e) Sundays (6.5 hours was either $100 or $120 from what he could remember).
217 Mr Zeyrek said the amount he was paid per week varied between $1,200 and $1,400. He said he was never paid any additional rates for working at night, for work on weekends or on public holidays. Mr Zeyrek also said he never received any other employment entitlements such as paid leave.
218 Mr Zeyrek stated that Kahraman never told him he was entitled to paid leave and it was very difficult to take time off from work at Newroz. Mr Zeyrek said that when his wife had their three children, he only had a few days unpaid leave at the time of each birth.
219 He said that while he was working at Newroz, his wife gave birth to three sons, who were born on Sunday, 26 June 2016, Monday, 14 May 2018 and Friday, 3 May 2019. He said he took 23 days off work when each child was born but that he was not paid for his time off.
220 Mr Zeyrek said he was paid weekly, every Sunday. Mr Zeyrek said he was always paid in cash and he was never asked to sign a record to confirm that he had been paid.
221 Mr Zeyrek gave evidence that when he was first employed at Newroz, Kahraman paid him with money he took from the till. He said that while he was mostly paid by Kahraman, he was also paid in cash, by Mr Oruc, Mehmet and Hasan.
222 Mr Zeyrek said that after Newroz introduced EFTPOS for customer payments, Kahraman withdrew cash from a nearby ATM when there was not enough cash in the till to pay his wages.
223 Mr Zeyrek said he did not keep a record of the cash payments he received or the hours he worked. He said he deposited the money he received directly to his wife’s bank account, or he gave her cash so that she could make the deposits herself. Mr Zeyrek attached copies of his bank statements from 22 July 2016 to 24 January 2019 to his first witness statement (bank statements). See Witness Statement of Şahin Zeyrek – Attachment ‘SZ 20’.

224 Mr Zeyrek said he never deposited the full amount he received into his or his wife’s bank account. He said the cash that was not deposited was used to pay for day-to-day expenses. He said he did not receive payslips.
225 Mr Zeyrek did, however, provide copies of two payslips that he received in 2019 for two pay periods between 22 August 2019 and 4 September 2019. It is not in dispute the two payslips he received do not contain accurate information. The hours worked, total pay, rate of pay, tax withheld and superannuation are not accurate (false payslips). See Witness Statement of Şahin Zeyrek – Attachment ‘SZ 21’.

226 Mr Zeyrek said Hasan gave him the false payslips to help him apply for a home loan. He said he asked Hasan for the payslips because he needed evidence of employment and what he earned.
227 Mr Zeyrek said that despite being given these payslips, a mortgage broker told him the bank would want to see the same amount of money going into his bank account on a regular basis. Mr Zeyrek said that because he could not provide proof of his earnings from his bank statements, he was not successful in obtaining a home loan.
228 Mr Zeyrek gave evidence that he had similar problems when applying for finance to purchase a car. Mr Zeyrek said he asked Kahraman for help to secure finance. He said Kahraman offered to take the loan out on his behalf, on the condition Mr Zeyrek would make the repayments directly to Kahraman. Mr Zeyrek gave evidence that he paid the repayments on the loan from his bank account to a St George Bank loan account in Kahraman’s name.
229 Mr Zeyrek said he began lodging tax returns relating to his employment at Newroz, in or around 2014. Mr Zeyrek said he had asked Kahraman to be ‘put on the books’ but this did not happen until after Mr Oruc was injured at work.
230 Mr Zeyrek said Kahraman, referred him to Mr Lyra to help him with his tax returns. Mr Zeyrek attached copies of his tax returns to his statement for the financial years ending in June 2016, 2017, 2018, 2019, 2020 and 2021 (tax returns), Witness Statement of Şahin Zeyrek – Attachment ‘SZ 27’.
the contents of which I will return to.
231 Mr Zeyrek said he set up a superannuation account with Australian Super in July 2015. Despite this, he said no payments were made from Newroz into his superannuation account while he worked there. In support of this, Mr Zeyrek attached a copy of his MyGov records that showed he had not received any superannuation contributions from Newroz.
232 Mr Zeyrek said Hasan told him that he was not paid enough to receive superannuation contributions while he worked at Newroz. Witness Statement of Şahin Zeyrek – Attachment ‘SZ 28’.

233 Mr Zeyrek’s second and supplementary witness statement was, in comparison to his first statement, quite short. It mostly dealt with what was served at Newroz, the issue of whether table service was provided, both prior to and after the renovation of the shop in 2017, the duties he performed and when the shop was open and closed.
234 Mr Zeyrek’s third and reply witness statement traversed a number of matters the respondents raised in opposition to his first witness statement. He also provided context to the photos that were attached to his first witness statement and attached additional images that he said he took while he was at work.
235 Mr Zeyrek gave evidence about how he commuted to work, his child care and carpooling arrangements. He also provided reply evidence on matters including when he worked with members of the Karakuyu family, the text messages he sent while he was at work to Hasan and Huseyin, when he trained and played soccer, his gambling and when he went to the Crown Casino (casino).
Cross-examination of Mr Zeyrek
236 Mr Zeyrek was cross-examined by Mr Heathcote. He challenged Mr Zeyrek on whether it was Kahraman or Hasan who employed him. While Mr Zeyrek accepted that Hasan managed the shop, he maintained his evidence that Kahraman made the final decision to employ him. Mr Zeyrek said that because Hasan was only 18 years old when he was employed at Newroz, he did not believe Hasan had the authority to hire staff.
237 Mr Heathcote questioned Mr Zeyrek about his understanding of what a manager at Newroz was required to do. Mr Zeyrek said managers were required to make orders, arrange rosters, give orders to suppliers and directions to staff. Mr Zeyrek stood by his evidence that Kahraman was ultimately in charge of the business, even though he was not involved in the daytoday running of the shop.
238 In his response to questioning from Mr Heathcote about the work Hasan performed, Mr Zeyrek said Hasan was less involved in making kebabs, cleaning the store, lifting meat up to the rotisserie and the like than he was.
239 After questioning Mr Zeyrek on whether Hasan had the authority to make decisions within the business, Mr Heathcote asked Mr Zeyrek about his immigration status when he was first employed at Newroz, specifically, whether he was on a student visa or protection visa.
240 Mr Heathcote asked Mr Zeyrek why he had sought employment at Newroz on a fulltime basis in 2013 when he was on a student visa that limited the number of hours he could work to 20 hours per week. In response, Mr Zeyrek said that he believed he was on a protection visa at the time he commenced work at Newroz.
241 Mr Heathcote crossexamined Mr Zeyrek on whether Newroz provided dinein restaurant service, including suggesting that Newroz never offered table service to customers or provided them with crockery and cutlery to consume their meals. Mr Zeyrek maintained that Newroz did both of these things.
242 Mr Heathcote challenged Mr Zeyrek on his evidence that he had seen Kahraman and Döne’s names listed on papers that were sent to the shop. Mr Heathcote put it to Mr Zeyrek that his evidence on this matter was untrue. Mr Zeyrek stood by his evidence.
243 Mr Heathcote questioned Mr Zeyrek about the duties he performed at Newroz. Mr Zeyrek confirmed his duties included cutting up lettuce and tomato, placing meat for burgers and kebabs on the grill, taking orders and payments from customers, including taking payment for the food, and handing the prepared food to customers.
244 Mr Heathcote suggested the cleaning duties Mr Zeyrek performed only involved wiping down benches and tables. Mr Zeyrek maintained the cleaning involved more than this. Rather, he said he was required to clean everything in the shop, including washing the doner machine, cleaning the grill, wiping tables, sweeping and mopping the floor and cleaning grease off the walls. Mr Zeyrek also said that he was required to clean inside the air conditioner and the exhaust canopy.
245 Mr Heathcote put it to Mr Zeyrek that cleaning duties were performed by a contractor. While admitting that a contractor was hired to clean the exhaust every two to three months, Mr Zeyrek maintained his evidence that he carried out the cleaning duties he described.
246 Mr Zeyrek also accepted that from 2016 onwards, his cleaning duties were changed and that more of this work was done by a contractor. Mr Zeyrek said that after the contractor was hired, he was only required to clean the grill and the salad bar.
247 Mr Heathcote cross-examined Mr Zeyrek about his working hours. Mr Heathcote challenged Mr Zeyrek’s evidence that he closed the shop ‘each time he worked’ and suggested to Mr Zeyrek that he had never delivered cash to Kahraman’s home. In response to these questions, Mr Zeyrek denied that he was lying about closing the shop or delivering cash to Kahraman’s home.
248 Mr Zeyrek confirmed in crossexamination that Hasan usually counted the cash from the till, while he cleaned the store together with Mehmet. He said that in the period 2016 to 2017, he only took cash to Kahraman’s home a few times and this happened when Hasan was not in the shop at closing time.
249 Mr Heathcote questioned Mr Zeyrek about his involvement with the Belmont Villa Soccer Club (BVSC), including the times he attended training sessions. He also questioned Mr Zeyrek about his involvement with the Beechboro United Soccer Club (BUSC).
250 Mr Zeyrek denied that he attended training sessions at the BVSC on Thursdays. He also disputed that training was compulsory for players who were in his team at BVSC. Mr Zeyrek maintained that when he played at BVSC, he was in an amateur league in which there were only eight or nine players, two short of the 11 required to field a team. Mr Zeyrek said the rule that players who did not turn up to training would be left off the playing list, did not apply to his team.
251 Mr Heathcote questioned on whether there were nights Mr Zeyrek went to the casino, rather than going to work, Mr Zeyrek maintained his evidence that he only went to the casino on Tuesday nights or after he finished work at Newroz.
252 Mr Heathcote questioned Mr Zeyrek about the amounts he was paid. Mr Heathcote confirmed with Mr Zeyrek that he was paid $20 for each hour that he worked. He also confirmed that at the end of each week, he expected to be paid something in excess of $1,000 or $1,200 per week, in cash.
253 Mr Heathcote asked Mr Zeyrek if he had received Centrelink benefits while he worked at Newroz in the period 2016  2018. Mr Zeyrek confirmed he had received Centrelink benefits but that it was only for a short time.
254 Mr Heathcote asked Mr Zeyrek if he had told Centrelink that he had been working 54 or more hours per week. Mr Zeyrek said that although he told Centrelink he was working, he did not mention the number of hours he worked.
255 Under further questioning from Mr Heathcote, Mr Zeyrek admitted that he did not tell Centrelink that he was working fulltime.
Observations about Mr Zeyrek’s evidence
256 Although he was not entirely truthful, Mr Zeyrek in the main presented as a credible witness. He was not shaken in cross-examination and his evidence was corroborated by the other witnesses the claimant called.
257 In describing Mr Zeyrek as not entirely truthful I accept that Mr Zeyrek may have overstated some of his evidence (points to which I will return). I do not however regard this as being fatal to the claimant’s case. Rather, it is a function of the situation in which Mr Zeyrek has found himself and which continued for the duration of his employment at Newroz.
258 By way of example, it does not appear Mr Zeyrek was honest in his dealings with Centrelink or the ATO. It is clear from his evidence that he did not honestly report the number of hours that he was working at Newroz to Centrelink or what he was being paid in cash for his work there.
259 Similarly, the earnings he declared to the ATO in his tax returns are well below what Mr Zeyrek says he was paid per week. However, rather than diminishing Mr Zeyrek’s credibility as a witness, it is my view that he has made significant admissions against his interest, that make his evidence believable.
260 It also appears obvious from Mr Zeyrek’s bank statements, that he likely understated his of use of online gambling services. It was not however put to Mr Zeyrek in crossexamination that he was being dishonest about this aspect of his evidence.
261 Although I am inclined to find Mr Zeyrek was not entirely truthful about the number of times he used online gambling services, this is a view I have reached when reviewing the bank statements he disclosed and not because of something that was unearthed during his cross-examination. In the circumstances, I regard his disclosure as more a source of embarrassment rather than determinative of his character as witness.
Yusuf Oruc
262 Mr Oruc was called by the claimant to corroborate Mr Zeyrek’s evidence. He provided two witness statements and gave his evidence with the assistance of an interpreter.
263 Mr Oruc said he worked at Newroz between January 2010 and April 2014. He described Newroz as a ‘kebab shop that served dine-in and takeaway food.’ Witness Statement of Yusuf Orcun Oruc, paragraph [5].
Mr Oruc described Kahraman as his employer. Whilst he said he was aware Döne was named as a business partner, he never saw her working at Newroz.
264 Mr Oruc, who is 43 years old, emigrated to Perth from Türkiye on 23 May 2009. He said he went to Newroz, looking for work because he was having difficulty finding a job. Mr Oruc said he spoke with Ibrahim Karakuyu and Ali Ihsan, who arranged a meeting with Kahraman at Newroz.
265 Mr Oruc said that after he met with Kahraman, he was offered work on a trial basis. Mr Oruc said he worked at Newroz on a trial basis for approximately two to three weeks. He said that at the end of this trial period, he was offered employment on a full-time basis.
266 Mr Oruc said that when he first started working at Newroz, he worked with Ibrahim Karakuyu and Ali Ihsan. He also said that he worked with Hasan, Huseyin; and Mehmet. Mr Oruc said he occasionally, worked in the shop with Fatma as well.
267 Mr Oruc said there were usually five or six staff who worked in the shop per week. He said he normally worked with one other person during his weekday shifts and two other people on the weekends. Mr Oruc said that he worked at Newroz for a few years before Ibrahim Karakuyu and Ali Ihsan stopped working there. He said that after they left the business, he became a shop manager.
268 Mr Oruc said Mr Zeyrek started working at Newroz in either 2012 or 2013. He said Mr Zeyrek was still working at Newroz when he finished working there in April 2014. Mr Oruc said that when Mr Zeyrek first started working at Newroz, he had difficulty taking customer orders because he could not understand much in English.
269 Mr Oruc said that after he spoke to Kahraman, Mr Zeyrek was given work on the grill cooking meat, frying fish and chips, preparing food in the kitchen (such as chopping tomatoes) and cleaning.
270 He said that over time, Mr Zeyrek’s English improved so he moved over to taking customer orders and payments. Mr Oruc confirmed that Mr Zeyrek worked fulltime at Newroz. By ‘full-time’, Mr Oruc said he meant working more than 40 hours a week. Mr Oruc said it was easy for Mr Zeyrek to complete 40 hours a week as his usual shifts at Newroz were around 11  12 hours a day, excluding Sundays.
271 Mr Oruc said that while he was not exactly sure how many days a week Mr Zeyrek worked; he thought it was at least four to five. He also said he remembered that Mr Zeyrek regularly worked with him on Friday and Saturday nights, from 5.00 pm until the shop closed early the following morning.
272 Mr Oruc provided detailed evidence of the work he performed at Newroz, including a diagram of the layout of the Newroz premises when he worked there. Second Witness Statement of Yusuf Orcun Oruc – Attachments ‘YO 1’ – ‘YO 2’.
In both his first and supplementary statements, Mr Oruc described what was involved in preparing and cooking the food, the cleaning tasks, what happened at closing time and who performed this work.
273 Mr Oruc said there were at least two to three staff in the shop at lunch time and for the evening meal. Mr Oruc described that a lunch time rush that usually started around 11.45 am and continued until about 2.00 pm and a dinner rush which began at around 5.00 pm continuing until around 8.00 pm at night.
274 In his first witness statement, Mr Oruc gave evidence about working with Mehmet. Mr Oruc said Mehmet lived with Kahraman and there were occasions when he gave him a lift home to Kahraman’s house after the shop closed because he did not have a driver’s licence.
275 Mr Oruc said that when he worked at Newroz, the business was open seven days a week including public holidays. He said to the best of his recollection, the only time the shop closed was on New Year’s Eve.
276 Mr Oruc said he worked a minimum of six days per week, sometimes seven, from around midday until close. He said he usually had Sundays off unless there was not enough staff. Mr Oruc said that when he first started working at Newroz, his shifts commenced at 12.00 pm on weekdays. He said this changed over time and he began starting work at around 11.45 am.
277 Mr Oruc said the earliest the shop closed was the advertised time of 10.00 pm. He said Kahraman told him that while customers were still coming in, he should keep the shop open even beyond the shops usual closing time. He said for this reason, the shop often stayed open until the early hours on Saturday and Sunday mornings, to cater for customers from a nearby nightclub.
278 Mr Oruc said he often closed the shop to customers at the end of a Friday or Saturday shift between midnight and 4.30 am the next morning, depending on how busy the shop was. Mr Oruc said that on a few occasions the shop stayed open until 5.00 am or 6.00 am.
279 Mr Oruc said shop usually closed between Sundays and Thursdays from between 10.00 pm and 12.00 am. He said that when there were events nearby on weeknights, he often closed the shop at 11.00 pm.
280 In his first statement, Mr Oruc stated that staff wages were paid weekly in cash, usually by Kahraman, Ali Ihsan or himself. He said wages were paid on the final working day of the week, with the working week running from Monday to Sunday.
281 Mr Oruc said staff were usually paid at the end of a Saturday night shift and this generally meant wages were paid to staff on a Sunday morning. He said that when Mr Zeyrek started working on Sundays, he no longer paid Mr Zeyrek’s wages because Mr Zeyrek would be paid by the person who was responsible for paying wages on Sundays.
282 Mr Oruc said that by the end of his employment at Newroz, he was paid an hourly rate of $20 per hour, which he said was equivalent to $200 for a full day and $100 for a half day. He said the half day rate was paid for five hours of work and the daily rate was paid for ten hours of work. Mr Oruc said he kept a record of the payments he made to each staff member, which he included with the money and paperwork that he took to Kahraman’s house after the shop closed.
283 Mr Oruc gave evidence that wages were only ever paid in cash. HeMr Oruc said no amount was withheld for income tax. Mr Oruc said cash was taken from the till to pay employee wages. Mr Oruc said he would ask Mr Zeyrek how many shifts he worked (days and half days) and then pay him in cash at either the daily or half day rate.
284 Mr Oruc said he never received any paid time off for annual leave or when he was sick. He said that if he did not attend work, he would not be paid.
285 In his witness statement, Mr Oruc said employees at Newroz did not take set meal or rest breaks. He said that although staff did not get set breaks, being able to eat was no issue. He said that staff were provided food and drinks, which they could have if the shop was quiet.
286 Mr Oruc said if there was a customer to serve or work to be done, staff did not stop to eat. Mr Oruc said there were times when the shop was quiet enough for him to sit outside and eat for a few minutes. He said Kahraman did not have a problem with him eating during a quiet period but if the shop was busy and Kahraman was there, he had to work.
287 Mr Oruc stated that all employees were required to wear Newroz T-shirts. He said the T-shirts were provided by Schweppes and came in different colours. Mr Oruc said Newroz did not clean his shirts. He said that he had to wash the T-shirts himself.
288 Mr Oruc said that he finished working at Newroz after he fractured his left arm in an incident involving an aggressive customer outside the shop. He provided contemporaneous and photographic evidence of his injury in his supplementary witness statement and an explanation as to why he withdrew his workers compensation claim. Third Witness Statement of Yusuf Orcun Oruc – Attachments ‘YO 4’ – ‘YO 7’.

289 Mr Oruc said he received Centrelink while he was working at Newroz. Mr Oruc also stated that Newroz did not pay any tax on his behalf.
Cross-examination of Mr Oruc
290 The questions Mr Heathcote asked Mr Oruc proceeded on the basis he worked at Newroz in the period between 2010 to 2014. The proposition he never worked at Newroz was not put to him in cross-examination. The significance of this is a point to which I will return in my evaluation of the evidence.
291 Mr Heathcote questioned Mr Oruc about whether Newroz provided a dine-in service. He asked if staff were required to wait on customers who took a seat at a table. In response, Mr Oruc confirmed they only provided service to customers who came to the counter.
292 Mr Oruc said that while there were occasions when a customer’s order was taken to their table, customers usually collected their food when they were called and then left the premises. In further questioning, Mr Heathcote suggested that customers were not served food on plates with cutlery, and that food was only served in single use packaging. Mr Oruc disagreed with this and maintained customers who wanted to dine-in, had their meals served on plates.
293 Mr Heathcote challenged Mr Oruc on his evidence that he had worked as a manager at Newroz. Mr Oruc responded by explaining that he was only placed in charge of the shop when a member of the Karakuyu family, which included Kahraman, was not present.
294 He also stood by his evidence that he acted as a manager when Kahraman went on holidays to Türkiye. Mr Oruc did not, when challenged, resile from his evidence about the duties he performed when he closed the shop, counted the takings or delivered money to the Karakuyu family home.
295 When questioned about employee records, Mr Oruc maintained that he never saw anyone collecting information on the hours that were worked by employees.
296 Mr Heathcote cross-examined Mr Oruc about his workers’ compensation claim. Under cross-examination, Mr Oruc accepted he withdrew the claim because Mr Zeyrek and Mehmet had declined to provide witness statements that confirmed Mr Oruc was employed by Newroz.
Observations regarding Mr Oruc’s evidence
297 Mr Oruc, who was the first witness in the case and gave his evidence before Mr Zeyrek, presented as a credible witness who told the truth. His answers to the questions he was asked under cross-examination did not deviate from the evidence he provided in his first and supplementary witness statements.
298 The level of detail about Newroz and how it operated as a business that Mr Oruc provided in both of his witness statements, was in my view, something he could have only obtained from working there.
299 The respondents’ cross-examination of Mr Oruc regarding his delay in bringing and eventually withdrawing a workers compensation claim, did not impugn his credibility as a witness. In other words, I do not accept that just because Mr Oruc withdrew his workers compensation claim I should find he was a dishonest witness.
300 Although I accept Mr Oruc may have had difficulty in establishing liability in his workers’ compensation claim, much of this can be attributed to the basis on which the respondents hired him. I also do not attach much weight to Mehmet’s and Mr Zeyrek’s refusal to give statements in support of his workers’ compensation claim either.
301 While Mehmet and Mr Zeyrek were not questioned about why they did not provide supporting witness statements, it is reasonable to infer that neither of them would have viewed providing a statement as being in their interests.
302 Mr Heathcote’s cross-examination of Mr Oruc as to why he had received a sum of $360 from Mr Zeyrek in November 2020 did not affect his credibility as a witness. When questioned on this topic, Mr Oruc was able to explain that Mr Zeyrek owed him money for a car he purchased from Mr Oruc in or around 2017.
303 While it is clear Mr Oruc did not work at Newroz in either claim period, his evidence about how the business operated, the work he performed with Mr Zeyrek and that he worked there, is relevant to, a number of the findings I am required to make.
Evidence of Fener Azbay
304 The claimant called Mr Zeyrek’s wife, Ms Azbay to give evidence. Ms Azbay provided two witness statements. During the hearing, Ms Azbay gave her evidence with the assistance of an interpreter.
305 Ms Azbay said that when she arrived in Perth from Türkiye on 18 September 2013 on a Student Visa, she was engaged to be married to Mr Zeyrek. She said she moved in with Mr Zeyrek after they were married on 5 November 2013.
306 Ms Azbay said that between 2016 and 2018, she lived in Balga with Mr Zeyrek. In or about July or August 2018, they moved from Balga to a residence in Nollamara and remained there until 2020.
307 Ms Azbay said that when she arrived in Perth, Mr Zeyrek was already working for Newroz. She said she was certain Mr Zeyrek was working for Newroz before she came to Perth because the day after her arrival, he took her there to meet his colleagues.
308 Ms Azbay stated that she regularly visited Newroz to see Mr Zeyrek because it was close to where she was studying English. Ms Azbay said she understood from speaking with Mr Zeyrek that Kahraman was his ‘boss’ and that Newroz was a family business.
309 Ms Azbay said Mr Zeyrek worked long hours at Newroz. She said she was unsure how many hours a week he worked. She did not keep a record. Ms Azbay said that from when she arrived in Perth, Mr Zeyrek regularly worked six days a week and that he had a day off on Tuesdays. She said the only day Newroz was not open was on Christmas Day.
310 Ms Azbay said that between 2016 and 2018, Mr Zeyrek left home at about 11.30 am on weekdays, in time to start work at Newroz at 12.00 pm. She said that between 2016 and 2018, Mr Zeyrek often worked into the early hours of Saturday and Sunday mornings.
311 Ms Azbay said that on Sundays, Mr Zeyrek would often come home from work at midnight or later if the shop was busy. She said on the nights when Mr Zeyrek was supposed to have left work around 11.30 pm or 12.00 am, it would be about 1.00 am in the morning before he returned home.
312 Ms Azbay said it was very difficult for Mr Zeyrek to get time off work. She said she did not know if Mr Zeyrek ever had paid leave. She said, to the best of her recollection, the only time Mr Zeyrek took time off work was around the time she gave birth to their children. Ms Azbay said that other than the birth of their children, Mr Zeyrek did not take any time off.
313 Ms Azbay stated she had numerous arguments with Mr Zeyrek about not having holidays together. Ms Azbay said that except for Christmas Day, he worked on public holidays. She said Mr Zeyrek never took time off work when she, or the children were sick.
314 Ms Azbay said that Mr Zeyrek was paid weekly in cash, every Sunday or Monday. Ms Azbay said that between 2016 and 2018, Mr Zeyrek usually brought home about $1,000 per week in cash. She said there were occasions when this went up to $1,200 per week.
315 Ms Azbay said Mr Zeyrek gave this money to her, shortly after he was paid. Ms Azbay stated she deposited the money the couple needed for rent and other bills into her bank account. She said the money Mr Zeyrek gave her was also used for shopping and other living expenses.
316 Ms Azbay stated they did not have a joint bank account. If Mr Zeyrek had to pay an instalment of some kind, then part of the money he received was deposited into his bank account. Ms Azbay attached copies of her bank statements for the period 15 August 2017 to 15 April 2019 to her second witness statement (Ms Azbay’s bank statements). Second Witness Statement of Fener Azbay – Attachment ‘FA 7’.

317 Ms Azbay’s bank statements show that regular weekly deposits were made to her bank account, close to the sums she said Mr Zeyrek received in cash for wages from Newroz.
318 Ms Azbay, in her second witness statement, gave evidence about the care of the couple’s three children. More specifically, Ms Azbay provided details of when she collected their children from childcare, and the dates on which she started using one of three childcare centres the couple sent their children to.
319 Ms Azbay gave evidence about a Subaru the couple purchased from Joondalup Easy Auto. She said Mr Zeyrek purchased the Subaru after he attended Joondalup Easy Auto with Kahraman. Ms Azbay said that when she went there with Mr Zeyrek, they could not obtain finance because Mr Zeyrek was unable to prove he had fulltime work.
Cross-examination of Ms Azbay
320 Under cross-examination from Mr Heathcote, Ms Azbay was questioned on how she knew Mr Zeyrek was working long hours. Mr Heathcote suggested that apart from the times Ms Azbay visited Mr Zeyrek and saw him at work, she did not know where he was after he left home each day.
321 In response to this line of questioning Ms Azbay maintained her evidence that Mr Zeyrek was at work six days a week. Ms Azbay said she visited Mr Zeyrek’s workplace in the period 2013 to 2016 when she was pregnant with the couple’s first son. She also described visiting Mr Zeyrek at the shop in 2016 once or twice a week, after lunch. Ms Azbay said Mr Zeyrek was working when she attended the Newroz store on Christmas Eve and New Year’s Eve.
322 Mr Heathcote questioned Ms Azbay about Mr Zeyrek’s earnings. Ms Azbay confirmed Mr Zeyrek was paid approximately $1,100 to $1,150 per week. She said he deposited this money to her bank account.
323 Mr Heathcote questioned Ms Azbay about the number of TAB Touch transactions that appeared in Mr Zeyrek’s bank statements. Witness Statement of Şahin Zeyrek – Attachment ‘SZ 20’, statements 27 November 2016 – 19 September 2017.
Ms Azbay confirmed Mr Zeyrek had told her that he had only gambled once or twice. Mr Heathcote then referred Ms Azbay to Mr Zeyrek’s bank statements. It became apparent that Mr Zeyrek had gambled more times than what Ms Azbay was aware of.
324 Mr Heathcote questioned Ms Azbay about when Mr Zeyrek attended soccer training. When asked how she knew Mr Zeyrek was attending training, Ms Azbay responded by saying that she knew Mr Zeyrek was there because he had told her where he was going. Ms Azbay also said she saw Mr Zeyrek taking the clothes he needed to play soccer.
325 In response to questions about when Mr Zeyrek attended soccer games, Ms Azbay gave evidence that she had attended two to three games between 2016 and 2018. Ms Azbay was unable to say where or when she attended Mr Zeyrek’s soccer games.
326 When asked about whether she knew about Mr Zeyrek’s underpayment of wages complaint, Ms Azbay stated that she was not aware Mr Zeyrek had made a complaint prior to June 2021. She said this was because she was overseas in Türkiye with the couple’s children. Ms Azbay explained that their marriage was under strain at the time and she had not discussed any underpayment of wages claim that Mr Zeyrek may have been pursuing.
327 Mr Heathcote questioned Ms Azbay on whether she stood to benefit from the outcome of the proceedings. Ms Azbay answered by saying she did not know whether Mr Zeyrek would receive any money from the case.
Observations about Ms Azbay’s evidence
328 While Ms Azbay presented as a reliable witness, I accept that there was limit to the direct evidence she was able to give about the number of hours Mr Zeyrek worked, when he started, finished and the like. This is because she was, in the main, reliant upon what Mr Zeyrek told her about what he was doing from day to day.
329 I also similarly accept that Ms Azbay was reliant upon Mr Zeyrek to tell her when he went to soccer training, when he may have gone to the casino, how often he went to the casino and how often he used online gambling services.
330 It is reasonable to conclude that Ms Azbay’s knowledge of these things, including the amount he spent gambling, depended on what Mr Zeyrek told her. This much became clear when Ms Azbay in cross-examination was shown Mr Zeyrek’s bank statements that revealed he was gambling far more than what Ms Azbay described in her witness statement.
331 There were however some matters that Ms Azbay was able to give direct evidence on that lend significant weight to Mr Zeyrek’s evidence about the amount of time he spent at work. This included the evidence Ms Azbay gave about visiting Mr Zeyrek at work in the afternoon or evenings and on Christmas and New Year’s Eve and that he came home from work in sauce-stained uniforms, smelling of food from the kebab shop in the early hours of the morning.
332 Ms Azbay’s evidence about the money Mr Zeyrek gave her each week which was deposited to her bank account is also consistent with him having regular and ongoing work at Newroz for which he was paid in cash.
333 Having summarised the claimant’s evidence, I will now provide a summary of the respondents’ evidence.
Respondent’s evidence – Kahraman
334 In his capacity as the first respondent, Kahraman filed a three-page witness statement and provided his evidence with the assistance of an interpreter.
335 Kahraman, who is 60 years of age and described his occupation as business owner, said he came to Australia as a refugee in 1995. Kahraman said he is of is Kurdish origin and came to Australia as a refugee.
336 Kahraman confirmed that he is married to Döne and that they have five children:
(a) Huseyin;
(b) Hasan;
(c) Fatma;
(d) Nilufer; and
(e) Aysun Karakuyu.
337 He said Hasan, Huseyin, Fatma, Nilufer, Ali Ihsan and Mehmet have all worked at Newroz. Kahraman stated that Mehmet lived in the Karakuyu family home when he arrived from Türkiye in 2012 until he eventually moved out in 2021.
338 Kahraman said he opened Newroz in 2001. He said he worked in the business on a full-time basis for many years. He said that in or about 2012 or 2013, Hasan took over the running of the business so that he could ‘semi-retire’.
339 Kahraman stated that he still helps Hasan out from time to time, but Hasan is now in charge of the business. Kahraman said Hasan became responsible for recruitment once he took over the business. Kahraman said although he had handed the responsibility for running Newroz to Hasan, he continued to attend the shop and still does.
340 Kahraman said that from 2012 or 2013 onwards, he was no longer aware of how business records were kept because Hasan was in control of the business.
341 Kahraman denied that he hired Mr Zeyrek to work at Newroz. He also denied speaking to Mr Zeyrek about his pay and hours of work or that he gave him a uniform. He suggested that providing uniforms was something Hasan would have done.
342 Kahraman said he never saw Mr Zeyrek dropping money to the Karakuyu family home. He said there were lots of family members who were involved in Newroz when he ran the business and he only trusted family members to handle money. He said as far as he knew, Hasan had continued this practice.
343 Kahraman admitted taking out a car loan so Mr Zeyrek could purchase a Subaru from Joondalup Easy Auto. He said he did this because Mr Zeyrek had told him his wife was going to divorce him if he could not get a car. Kahraman said that while the loan was in his name, the car belonged to Mr Zeyrek.
344 Kahraman denied speaking to Mr Zeyrek about paying tax and not declaring his true income. He said that while he may have given Mr Lyra’s details to Mr Zeyrek, he only did this because Mr Lyra is well-known in the Kurdish community and not because Mr Zeyrek had complained about being paid in cash.
345 In relation to Mr Oruc’s witness statements, Kahraman denied that he ever worked for Newroz.
346 During his evidence, I asked Kahraman when Newroz was open for business. He responded by saying Newroz was open seven days a week from 9.00 am in the morning until 10.00 pm at night. He said on weekends the latest Newroz stayed open was 2.00 am (Saturdays and Sundays).
Cross-examination of Kahraman
347 Kahraman was cross-examined by Ms Inkster. Under cross-examination, Kahraman maintained that by 2012 or 2013 he had handed control of the business to Hasan. Kahraman was however very quick to concede that he never semi-retired. ts 136.

348 He also admitted that until 2019, he continued to attend Newroz multiple times per week. Kahraman said although he was not a ‘worker’ he continued to work at Newroz and that both he and Döne received wages from the business. ts 136  137.

349 When Ms Inkster asked Kahraman about the BAS payroll reports that Mr Patel provided in response to NTP2 that shows Kahraman received wages from Newroz in the second half of the 2018/2019 financial year, he denied having seen these documents before. ts 138.
Kahraman responded with the explanation:
[m]y son was dealing with all this correspondence at that time. ts 139.

350 Ms Inkster challenged Kahraman’s evidence that Mr Zeyrek never delivered cash from the business to the Karakuyu family home because he did not trust him with money. Under cross-examination, Kahraman admitted that although he not did trust Mr Zeyrek with money, he had trusted Mr Zeyrek to repay him for an unsecured car loan. ts 140.

351 Ms Inkster challenged Kahraman’s evidence that Mr Oruc never worked for Newroz. While he maintained Mr Oruc did not work at Newroz, Kahraman stated that Mr Oruc used to attend the shop. He said he would ‘drop in’ and ‘come and go’. ts 140  141.

352 At one point, Kahraman stated through the interpreter:
If I am the owner of that shop, I can say that he didn’t work there. ts 141.

Observations regarding Kahraman’s evidence
353 I have difficulty in accepting that Kahraman, who is the most senior figure in the Karakuyu family, with over 20 years involvement and experience in Newroz, lacked an awareness of what was happening in the business from 2012 or 2013, to the extent the respondents have claimed.
354 Kahraman’s evidence that he had handed control of Newroz to his son Hasan, was inconsistent with Mr Ravenscroft’s unchallenged evidence about his interactions with Kahraman. By his own admission Kahraman said that in the 2018 - 2019 financial year he continued to draw ‘wages’ from the business. He also said he continues to go into to Newroz and that he never actually ‘semi-retired’.
355 It is open to find, from the inconsistencies between Kahraman’s and Mr Ravenscroft’s evidence and the concessions Kahraman made in cross-examination, that he was at all material times, far more involved in Newroz than he was prepared to acknowledge in his witness statement.
356 As the case progressed it became apparent there were inconsistencies between Kahraman’s evidence and that which was given by the respondents’ other witnesses. These inconsistencies are important because they raised significant doubts in my mind about his credibility as a witness, leading me to conclude that his testimony on critical issues, if not dishonest, was at the very least, unreliable.
Evidence of Hasan Karakuyu
357 Hasan was the second witness the respondents called to give evidence. He provided a ninepage witness statement. Hasan did not need assistance from an interpreter when giving his evidence.
358 Hasan stated that he is a director of Karakuyu Pty Ltd, the current operator of Newroz. He confirmed that prior to the change in ownership, his parents (the first and second respondents) had operated the business as a partnership. He said he had been actively and substantially involved in the Newroz business his entire adult life.
359 Hasan said he started working at Newroz when he was still at high school. He said at that time, his sister Fatma managed the business. Hasan stated that when he graduated from high school, he was so familiar with the Newroz business that he was able to take it over and become the manager.
360 Hasan said that despite being the manager, he was not required to run the business alone. He said the Karakuyu family provided most of the labour in the business and that everyone in the immediate family and some of the extended family, chipped in to help. He said Newroz needed some employees but not many.
361 Hasan said he was able to combine managing Newroz with studying. He said he went on to complete an undergraduate degree at Curtin University and that when he was not at university, he managed the business.
362 In his witness statement, Hasan said he was shown all the material the claimant had lodged in support of the claim, including Mr Zeyrek’s witness statements. Hasan said the information he included in his witness statement was intended to focus on the period from the end of April 2016 to the end of 2018.
363 Hasan said in 2016, the business operated in a much smaller space from which it only sold kebabs, drinks and a few other food items. He said there was not much room for chairs and tables at the premises.
364 Hasan stated there were some tables and chairs for people to sit at while they waited for their orders to be called. He described Newroz as a business that sold well-priced, nutritious fast food to be consumed elsewhere. Hasan said that in 2017, Newroz expanded to include an adjoining premises. He said that while the business remained the same, the shop space and product range were increased.
365 Hasan said that when he first met Mr Zeyrek, he was employed at two other kebab shops. He said he recalled Mr Zeyrek was working the equivalent of full-time hours at the other two stores. Hasan gave evidence that before he commenced work at Newroz, Mr Zeyrek had worked for at least six months at both stores. He said he would not have hired someone who did not have a minimum of three to six months’ experience.
366 Hasan said that when he employed Mr Zeyrek in 2013, Kahraman had stepped back and was no longer involved in the day-to-day running of the business. Hasan said his father did not know who was hired or when they worked at the business. He also denied Mr Zeyrek received a job offer from Kahraman.
367 Hasan stated that Mr Zeyrek’s work at Newroz did not require anything more than basic food preparation skills. He said everything in the shop was purchased from suppliers and is only ever reheated and re-packaged in the shop.
368 Hasan said Mr Zeyrek was hired to work from 9.00 am to 12.30 pm on Mondays, Wednesdays and Fridays. He said at that stage, it was only him and Ali Ihsan who worked full-time in the business.
369 Hasan stated Mehmet and Fatma both worked part-time. Hasan said that at one point Mr Zeyrek asked him to increase his working hours. While Hasan says he told Mr Zeyrek he was willing to employ him on a full-time basis, Mr Zeyrek asked to be paid ‘under the table’ because he did not want to be recorded as a full-time worker. This he said was so Mr Zeyrek could continue to receive financial support from Centrelink and the Red Cross. Hasan said he refused this request.
370 Hasan said Mr Zeyrek wanted to be paid in cash. He said he wanted to pay Mr Zeyrek by electronic funds transfer (EFT) to his bank account. Hasan said Mr Zeyrek did not want to be paid by EFT because he did not want a record of money going into his bank account to affect the Centrelink and other benefits he was receiving.
371 Hasan said the shop never stayed open past its advertised closing times. He said family members were the only people who were given the responsibility of closing the shop. Hasan said he either closed the shop himself or the task was assigned to Mehmet or another family member.
372 Hasan gave evidence to refute the suggestion Newroz was both a dine-in and takeaway restaurant. He said from 2001 to 2017, the premises from which Newroz operated was only 45 square metres and there was only room for three tables and two chairs at each table. Hasan said Newroz could not house any dine-in customers, even if they wanted to.
373 Hasan said that while the shop was expanded following the renovation in 2017, Newroz remained a takeaway food store. He said all orders are served in singleuse, disposable packaging and if needed, with disposable utensils.
374 Hasan said the photographs from various social media posts that were attached to the claimant’s and Mr Zeyrek’s witness statements that showed meals being served on plates, were organised by Uber Eats and Door Dash. He said a professional photographer was sent by both companies to take photos of food to be used for advertising purposes. He said that despite the photographs, Newroz did not serve food in the manner represented in the photographs.
375 In his witness statement, Hasan gave evidence about who he said worked at the shop, when they worked and the roles they performed. He said that from 2011 or 2012, he managed the business and if he was absent, Ali Ihsan was placed in charge. Hasan said if he and Ali Ihsan were both away, then his cousin, Mehmet managed the business. Hasan said most of the workforce were family members, including himself, Ali Ihsan, Huseyin, Mehmet, Fatma, Nilufer and Umut.
376 Hasan gave evidence about the work he said Mr Zeyrek performed at Newroz. He said the duties Mr Zeyrek performed were limited. He said Mr Zeyrek’s main job was to deal with the counter during the early, quiet part of the day and to help at the start of the lunch rush.
377 Hasan said Mr Zeyrek almost never worked at night. He denied that Mr Zeyrek performed any cleaning duties. In his witness statement, Hasan said Mr Zeyrek never closed the shop. He said Mr Zeyrek was hired as a casual to help during the daytime and that Mr Zeyrek’s working hours finished well before the shop was closed. He also stated that only family members were given the responsibility of closing the shop.
378 He said that from 2008 to 2016, Ali Ihsan cleaned the shop after closing. Hasan gave evidence that Ali Ihsan washed the doner machines, cleaned the grill, swept and mopped floors, cleaned the tables and wiped grease off the walls. Hasan said that from 2016 until present, Newroz engaged a different cleaner who carries out the cleaning duties that Ali Ihsan used to perform.
379 Hasan said he usually closed the shop with Mehmet. He said he worked the late shift together with Mehmet who lived at his parents’ home. Hasan said Mr Zeyrek never closed the shop. He also said he never delivered cash to the Karakuyu family home.
380 In his witness statement, Hasan said he kept business records that recorded working hours and wage payments. He said these records were misplaced or damaged during the renovation of the shop and when he moved house.
381 Hasan said if these records had not been lost, they would show that:
i. the business had always been familyrun;
ii. Hasan, Mehmet and Ali Ihsan worked full days with Huseyin;
iii. Mr Zeyrek only provided assistance in the mornings on a casual basis;
iv. Mr Zeyrek was not generally available on a Tuesday, Thursday or Saturday; and
v. Mr Zeyrek was not available on Sundays because he played soccer with Huseyin.
382 Hasan said there was no roster during Mr Zeyrek’s employment because the majority of working hours were all done by family members. He said that Ali Ihsan opened the shop from Monday to Friday. Mehmet came in around 11.30 am and left at 2.00 pm, returning at 6.00 pm to work until closing.
383 Hasan said he came in around 12.00 pm noon on Tuesday, Wednesday and Thursday. He said Ali Ihsan finished at around 5.00 pm. Hasan said that after 5.00 pm he worked with Huseyin and Mehmet until close. Hasan said that on weekends he would open the shop and work with Fatma until 5.00 pm. He said Fatma left at 5.00 pm and he then worked with Mehmet until closing.
384 Hasan said Mr Zeyrek’s job was to help until 12.30 pm or sometimes to 1.00 pm on Mondays, Wednesdays and Fridays. Hasan denied that Mr Zeyrek worked on public holidays or at night. He said his three sisters, Nilufer, Fatma and Aysun Karakuyu performed this work.
385 Regarding closing times, Hasan said Newroz did not stay open longer than its advertised trading hours. In support of this, Hasan said the landlord had security patrols and a means of monitoring the shop’s opening and closing times. For this reason, he said the business kept to its advertised trading hours.
386 In his witness statement, Hasan denied Mr Zeyrek worked 64.5 hours per week. He said no one in the Newroz business worked the hours Mr Zeyrek claims he worked. He reiterated that between 2016 and 2018, Mr Zeyrek’s normal weekly working hours were Monday, 9.30 am to 12.30 pm; Wednesday, 9.30 am to 12.30 pm; Friday, 9.30 am to 12.30 pm.
387 Hasan denied the photographs that Mr Zeyrek attached to his witness statement, provided evidence he worked at Newroz at night. Hasan said Mr Zeyrek took the photos of himself at the shop and sent them to his wife, so she would be led to believe that he was working when he was not.
388 In his witness statement, Hasan admitted Mr Zeyrek was paid $20 per hour, however, he said this was a net amount Newroz paid to him after tax.
389 Hasan said that Mr Zeyrek took time off for the birth of each of his three children. He said that each occasion his wife gave birth, Newroz continued to pay him even though he was not at work.
Cross-examination of Hasan
390 In cross-examination, Mr Carroll questioned Hasan about Mr Zeyrek’s employment at Newroz as a casual employee. Hasan accepted that Mr Zeyrek regularly worked from 9.00 am to 12.30 pm, Mondays, Wednesdays and Fridays; a total 10.5 hours worked across three days per week, or 21 hours per fortnight.
391 Mr Carroll asked Hasan about whether the hours he said Mr Zeyrek worked meant he was employed on a part-time rather than a casual basis. Mr Carroll also questioned if he was aware Mr Zeyrek would be entitled to paid leave if he was employed on a part-time basis. Initially Hasan responded by saying that he was not aware if Mr Zeyrek was entitled to paid time off. He then said Mr Zeyrek received paid leave.
392 Mr Carroll asked Hasan about the hours Fatma worked. In his witness statement, Hasan said Fatma, who worked a couple of hours per day, one or two days per week was part-time. When questioned about why he considered Mr Zeyrek, who he said regularly worked the same hours on the same days of the week to be a casual and not part-time, Hasan responded by saying he did not know when he prepared his statement there was difference between casual and part-time employment.
393 Mr Carroll asked Hasan if he agreed that it was inconsistent to describe Mr Zeyrek as a casual but Fatma as part-time. Hasan responded by saying the difference was that Fatma was a family member.
394 When questioned about the work Fatma performed in the shop, Hasan said she mostly performed bookkeeping duties. When pressed about the actual number of hours she performed in the shop, Hasan said Fatma worked around one to two hours a day, a couple of days a week in 2013 and that she only worked in the shop to fill gaps.
395 Mr Carroll cross-examined Hasan about the work Ali Ihsan performed in the shop. After confirming Ali Ihsan was Fatma’s husband, Hasan said he usually worked between 8.00 am and 5.00 pm, Monday to Saturday with a day off on Sundays.
396 Hasan admitted that Ali Ihsan would have seen Mr Zeyrek at work. He also said Ali Ihsan came back to the shop each evening to perform cleaning duties, seven days per week.
397 Mr Carroll suggested Ali Ihsan performed an extraordinary number of hours at work. He asked Hasan whether he could have been mistaken about the number of hours he worked in the business. Hasan disagreed.
398 When asked as to whether Hasan had any business records to show the number of hours Ali Ihsan worked, Hasan responded by saying these records were lost in 2017 when the shop was renovated. In cross-examination, Mr Carroll challenged Hasan’s evidence about the records he said were lost during the renovation. Hasan denied that he had lied about the records being lost.
399 After confirming Mr Zeyrek was paid $20 per hour after tax, Mr Carroll referred Hasan to, and questioned him about, the contents of the BAS payroll reports. Hasan admitted they showed Mr Zeyrek worked an average of 31.8 hours per week in the period 10 May 2017 to 30 June 2017.
400 When Mr Carroll suggested the BAS payroll reports showed Mr Zeyrek worked a lot more than the 10.5 hours per week Hasan said he worked, Hasan responded by saying that he could not provide a definitive answer. When pressed further, he accepted the BAS payroll reports showed Mr Zeyrek worked three times more hours than what Hasan said he worked between 2016 and 2018.
401 Under crossexamination, Hasan was not prepared to admit that he did not know what hours Mr Zeyrek worked between 2016 and 2018. He was also not prepared to admit that Mr Zeyrek had a better recollection of the hours he had worked.
402 Mr Carroll suggested Mr Zeyrek’s usual hours required him to work until 11.00 pm or midnight. Hasan disagreed with this. He said he was certain Mr Zeyrek did not work the hours he claimed to have worked because the business could not afford it. Hasan also refused to agree that Mr Zeyrek worked at night in the shop.
403 Mr Carroll referred Hasan to a text exchange he had with Mr Zeyrek, that appeared in the third witness statement of Şahin Zeyrek as attachment ‘SZ 52’. The text exchange shows Mr Zeyrek, who was at work at the shop at 4.58 pm, asking Hasan if he would work from 7.00 pm until 9.00 pm that night. Third Witness Statement of Şahin Zeyrek – Attachment ‘SZ 52’.
When confronted with this text exchange, Hasan admitted Mr Zeyrek may have worked at Newroz in the evening.
404 During his cross-examination, Mr Carroll referred Hasan to a number of images from the Court Book, which Mr Zeyrek claimed showed him working at Newroz, at times Hasan said he did not work. When questioned about these images, Hasan was unprepared to admit they showed Mr Zeyrek working at Newroz.
405 Mr Carroll asked Hasan to look at the 2019  2020 wage records. 2019  2020 wage records enclosed in the claimant’s first statement – Attachment ‘JDD 16’.
He asked Hasan if he gave these records to Lyra Livich for them to provide in response to the NTP5. After Hasan accepted that he had provided these records, Mr Carroll asked him if the 2019  2020 wage records show that Mr Zeyrek worked at the shop in 2021 five days per week.
406 Hasan responded by saying that although Mr Zeyreks name appears on 2019  2020 wage records, the entries were made to record hours that Umut worked. Hasan admitted the 2019  2020 wage records he provided were not for Mr Zeyrek. He also confirmed that Mr Zeyrek was not working at Newroz in 2021.
407 Mr Carroll questioned Hasan about his evidence that it was Mr Zeyrek who asked to be paid in cash. Hasan responded by saying that there were some employees who were paid by EFT. When challenged about this evidence, specifically that everyone who worked at Newroz was paid in cash from 2013 to 2018, Hasan responded by saying:
Yeah, because we’re all family. ts 164.

408 In response to a question that it was the business’s choice to pay in cash rather than the employees’, Hasan disagreed.
409 Mr Carroll asked Hasan if Mr Oruc worked at Newroz. While Hasan confirmed that Oruc was employed at Newroz, he qualified this by saying it was for a ‘short period’. ts 164.

410 When asked about Huseyin’s working hours on Sundays, Hasan initially said he did not work on Sundays. After Mr Carroll suggested that Huseyin’s witness statement confirmed Huseyin worked on Sundays, Hasan accepted that his evidence may have been wrong.
411 Mr Carroll returned to questions about Mr Zeyrek’s and Huseyin’s working hours on Sundays. I have extracted the relevant exchange between Hasan and Mr Carroll:
If you’re mistaken about whether or not [Huseyin] came back to work on Sundays after soccer, could it be the case that you’re mistaken about Şahin’s hours as well?---No.
But we established earlier that you really couldn’t be sure. You don’t really know what hours Şahin worked between 2016 to 2018?---I’m sure about Sundays.
You’re sure about Sundays?---Yeah, because I was always there every Sunday.
Other than Sundays you’re not really sure when he worked?---It could have been mornings, it could have been daytimes, it could have been night times. ts 168.

412 Mr Carroll questioned Hasan’s evidence on what Mr Zeyrek was paid. When he asked Hasan to confirm if Mr Zeyrek was paid $20 per hour in the period 2016 to 2018, Hasan agreed but then said Mr Zeyrek was paid ‘bonuses’. ts 169.

413 After Mr Carroll suggested this was inconsistent with his previous evidence and that Mr Zeyrek was only ever paid $20 per hour, Hasan conceded Mr Zeyrek was paid $20 per hour but said it was paid as a net amount.
414 Mr Carroll challenged Hasan’s evidence the business separately remitted money to the ATO for tax and that Mr Zeyrek was paid $20 per hour as a net amount. Mr Carroll confirmed with Hasan that he was asked to produce PAYG payment summaries for Mr Zeyrek, for each financial year, but that none were provided to the Department.
415 Mr Carroll’s questioning of Hasan covered a variety of subjects, including the seating that was provided at the restaurant, Mr Zeyrek’s duties and whether the business promoted dining in the store. When answering, Hasan was careful to deny the various images that were attached to Mr Zeyrek’s and the claimant’s witness statements provided evidence customers dined in at Newroz or their meals were served on plates.
416 In cross-examination, Mr Carroll asked Hasan further questions, on how the business transferred money to the ATO to pay Mr Zeyrek’s tax. During this questioning, Hasan said he had paid superannuation contributions into a government account on Mr Zeyrek’s behalf as he claimed Mr Zeyrek had not provided him with details of his superannuation fund. ts 187; see also ts 193.

417 Mr Carroll questioned Hasan about his working hours. He said he worked from 9.00 am in the morning until 2.00 am the following day. When he was shown Fatma’s witness statement where she stated, ‘[n]o-one in our business works that many hours,’ Hasan drew a distinction between employees in the business and family members. ts 194.

418 During his cross-examination, Hasan admitted that he provided the false payslips to Mr Zeyrek to assist him in applying for a home loan. He accepted that the payslips were not truthful. ts 197  199.

Observations about Hasan’s evidence
419 As a witness, Hasan did not present as honest or reliable. He threw up answers to questions in cross-examination that were at odds with or not raised in his witness statement. An example of this was when he said Mr Zeyrek was paid bonuses. However, there was no evidence Mr Zeyrek was paid anything other than $20 per hour.
420 A further example was in Hasan’s claim that Newroz could not afford to employ Mr Zeyrek for the hours he said he worked. This stands in contrast with his statement that he had offered Mr Zeyrek full-time work.
421 In cross-examination, Hasan contradicted his evidence in chief on the hours he said Mr Zeyrek worked. As the exchange I have referred to in the preceding paragraph [411] revealed, Hasan was both unable and I find, unprepared, to truthfully say when Mr Zeyrek usually worked at Newroz.
422 Apart from being internally inconsistent, Hasan’s evidence on critical points was inconsistent with the respondents’ other witnesses. By way of example, Hasan’s evidence that Mr Oruc worked at Newroz, was inconsistent with Kahraman’s evidence that he never worked there.
423 His evidence was also not supported with documentary evidence. In cross-examination Hasan was forced to admit the BAS payroll reports show that Mr Zeyrek worked three times more hours than what Hasan in his witness statement, said he worked.
424 Similarly, Hasan was initially adamant that Huseyin did not work on Sundays. However, he was very quick to depart from this evidence when Mr Carroll made him aware this testimony was at odds with Huseyin’s witness statement.
425 While Hasan in cross-examination said he had paid superannuation contributions on Mr Zeyrek’s behalf he did not provide documentary evidence of this. Similarly, Hasan did not, either directly or through the accountants, provide documentary evidence that confirms taxation was properly remitted to the ATO on Mr Zeyrek’s behalf.
426 The evidence Hasan gave about Mr Zeyrek’s working hours did not align with information contained in the BAS payroll reports or in what Mr Zeyrek declared he had earned in his tax returns.
427 Hasan had difficulty accepting the contents of text exchanges and photographs which were put to him in cross-examination that showed Mr Zeyrek was working at night, Newroz provided an option to dinein or that Mr Zeyrek was involved in closing the business.
428 Hasan had notice of each of the exhibits prior to the hearing and yet he was unable to provide a plausible explanation as to why Mr Zeyrek’s description of these materials should not be preferred.
Evidence of Huseyin Karakuyu
429 The respondents called Huseyin to give evidence. He provided a five-page witness statement. He did not require the assistance of an interpreter.
430 Huseyin, who is Hasan’s older brother, stated that he did not work at Newroz in the period 2012 to 2016 because he was in prison for drug offences. Huseyin said he was released on parole around the middle of 2016. He said it was a condition of his parole that he was required to live with his parents. Huseyin said that following his release, he worked at Newroz on a full-time basis. Witness Statement of Huseyin Karakuyu dated 11 September 2023.

431 Huseyin gave evidence that in February 2017, he commenced playing soccer for BVSC. He said training was on Tuesday and Thursday nights from 7.30 pm to 9.30 pm and that games were held on Sundays. Huseyin said that while he only played in the amateur league, players were not allowed to play unless they went to training.
432 Huseyin said that Mr Zeyrek joined BVSC with him. He said they sometimes went to games and training together. Huseyin said he did not remember Mr Zeyrek missing any games or training sessions.
433 Huseyin gave evidence about the duties that he performed at Newroz. He said his duties generally included:
(a) opening the shop;
(b) food preparation such as chopping tomatoes, lettuce and onions;
(c) cooking on the grill;
(d) serving customers;
(e) closing the shop, which involved counting the day’s takings and balancing it against receipts; and
(f) delivering the takings to his parents’ house in Stirling.
434 Huseyin said that only family members were allowed to deliver money to his parents’ home. He said there was a very strict rule around this. Huseyin said cleaning did not form a part of his normal duties as there were cleaners who came in after the shop was closed, who did this work.
435 Huseyin said that from mid2016 to early2017, he generally worked the following hours:
(a) Monday, 2.00 pm to 10.00 pm;
(b) Tuesday, 2.00 pm to 10.00 pm;
(c) Wednesday, 2.00 pm to 12.00 am;
(d) Thursday, 2.00 pm to 2.00 am;
(e) Friday, 2.00 pm to 2.00 am;
(f) Saturday, 2.00 pm to 2.00 am; and
(g) Sunday, 2.00 pm to 12.00 am.
436 Huseyin said that once he started playing for BVSC, he stopped working on Tuesday and Thursday nights. He said he only worked during the day on Tuesdays and Thursdays so he could attend training.
437 Huseyin said the hours he worked on Sundays depended on whether he was playing soccer and what time the game was on. He said he would open the shop and sometimes go back to work after the game. He said Mr Zeyrek did not go to work after soccer games.
438 Huseyin said in the middle of 2017, his working hours changed. He said he stopped closing the store on weekends. He said he finished earlier so he could spend time with his fiancée. Huseyin stated that Mehmet was then given the task of closing the store.
439 Huseyin said that by the middle of 2017, he usually worked:
(a) Monday, 2.00 pm to 10.00 pm;
(b) Tuesday, 8.00 am to 5.00 pm;
(c) Wednesday, 8.00 am to 12.00 am;
(d) Thursday, 8.00 am to 5.00 pm;
(e) Friday, 8.00 am to 10.00 pm;
(f) Saturday, 8.00 am to 10.00 pm; and
(g) Sunday, 8.00 am to 11.00 am or sometimes to close.
440 Huseyin said his hours varied. He said that because Newroz was a family business, he sometimes had to fill in for Kahraman, Hasan and other family members who could not perform their shifts.
441 Huseyin said the shop would sometimes stay open longer if it was busy but if it was quiet, he would close earlier. Huseyin said this happened a lot during winter because there were less people out in the city.
442 Huseyin said that whenever he worked at the shop, he would have a break and sit down and eat a kebab or something else. He said he would usually do this when it was not busy. He said he saw Mr Zeyrek do the same thing when he worked with him.
443 Regarding records, Huseyin said he did not have much to do with the paperwork in the business. However, he said that hours of work and pay were recorded in a book and that there was some kind of record kept.
444 Huseyin said Mr Zeyrek did not work as many hours as he or other family members did. He said Mr Zeyrek would normally only do four-hour shifts. Huseyin said Mr Zeyrek did not prepare food. He said Mr Zeyrek did not have the knife skills to do it properly or fast enough.
445 Huseyin said he asked Mr Zeyrek to work full-time. He said Mr Zeyrek told him he was unable to because he had two children and was receiving Centrelink benefits, which he would lose if he worked any more hours.
446 Huseyin said he never saw Mr Zeyrek deliver any money from Newroz to his parents’ home in Stirling. He said this was because only family members were allowed to handle money.
447 Huseyin gave evidence about Mr Zeyrek’s gambling, including evidence the two of them went to the casino together on Friday and Saturday nights. In his witness statement, Huseyin said Mr Zeyrek left his mobile phone at Newroz when he went to the casino.
448 Huseyin said Mr Zeyrek did this because he did not want his wife to know that he was going there. Huseyin stated Mr Zeyrek would come into the shop in his uniform and take a photo that he sent to his wife. This was so she would think he was working.
449 In his statement, Huseyin said he did not remember working with Mr Oruc. He said Mr Oruc came into the shop sometime in 2017 or 2018. He told Huseyin he was trying to get workers’ compensation for something that happened when he still worked at Newroz.
Cross-examination of Huseyin
450 Huseyin was cross-examined by Ms Inkster. Ms Inkster confirmed with Huseyin that he was working over 50 hours per week and from the middle of 2017, seven days per week. After confirming he worked over 65 hours per week, Ms Inkster referred Huseyin to Fatma’s witness statement in which she had declared, ‘[n]o one [at Newroz] works that many hours.’ Witness statement of Fatma Kara at [39].

451 In response, Huseyin said that he thought Fatma was mistaken in what she said about the number of hours people worked in the business. ts 213.

452 Ms Inkster asked Huseyin about Mr Zeyrek’s working hours. In his answers, Huseyin suggested Mr Zeyrek sometimes worked on Tuesdays. He also said Mr Zeyrek worked during the day on Wednesdays and Fridays and that he was called in whenever he was needed. ts 214.

453 Ms Inkster challenged Huseyin’s evidence that he had offered Mr Zeyrek full-time work but that he had refused because he did not want it to affect his Centrelink benefits. Huseyin disagreed with the suggestion he may have been mistaken about this evidence and did not accept Mr Zeyrek had asked Huseyin for full-time work.
454 Ms Inkster questioned Huseyin about his involvement in the BVSC with Mr Zeyrek. He accepted that team members were only required to attend at least one training session. He also conceded the rules that required team members to attend at least two training sessions before they would be allowed to play depended on the team’s age group.
455 Ms Inkster cross-examined Huseyin about his knowledge of Mr Oruc’s employment at Newroz. After first saying Mr Oruc did not work at Newroz, Huseyin conceded that he could not be sure about who was employed at Newroz when Mr Oruc said he worked there, because he was in prison. ts 217.

456 Ms Inkster questioned Huseyin about a text exchange he had with Mr Zeyrek, a copy of which was attached to Mr Zeyrek’s first witness statement. Third Witness Statement of Şahin Zeyrek – Attachment ‘SZ 64’.
In the exchange that occurred on 30 March 2020, at 7.57 pm, Huseyin told Mr Zeyrek to close the shop at 9.00 pm.
457 Ms Inkster suggested to Huseyin the text exchange provided evidence that Mr Zeyrek was working at night at Newroz, until closing time. Huseyin disagreed. He said the text messages between the two were ‘made up’ so when Mr Zeyrek’s wife was shown them, she would think he was working, when in fact he was somewhere else.
458 I have extracted below a relevant passage from the transcript which better illustrates Huseyin’s explanation to Ms Inkster for his text exchanges with Mr Zeyrek:
So you’ve asked Şahin to close early that night?---No, I didn’t ask him to close early. That was the – he would text me to explain to his wife that he was at work all the time.
You mean he shared this text exchange?---Yeah, I – we had an agreement made between me and him that if he ever messaged me at night that he’s told his wife he’s at work and I’ve accepted it that I would actually reply because we were mates.
I put it to you that you’ve commenced this text exchange with Şahin?---I did reply back to him.
And you didn’t – at the start of this text message exchange you say:
Hi bro, how is work, bro?
Are you saying that’s not commencing an exchange?---That was – that was between me and him, my agreement with him that I ask him so he can show his wife that he was actually at work while he was out and about.
That’s a fabrication, isn’t it?---No, it’s not fabrication. That’s what he would ask me to do. ts 219.

Observations about Huseyin’s evidence
459 Huseyin’s evidence on a number of points was inconsistent with the evidence given by the respondents’ other witnesses. More importantly, there were significant differences between Huseyin’s and Hasan’s evidence on the hours Huseyin said Mr Zeyrek worked at Newroz.
460 In contrast to Hasan’s evidence, Huseyin made no attempt to draw a distinction between family members and employees when describing the number of hours he worked. Huseyin also said Mr Zeyrek worked more hours than what Hasan said he did, including in the evenings for the dinner rush and that Mr Zeyrek would be called in whenever he was needed. ts 214.

461 Huseyin and Hasan were at odds in their evidence regarding Mr Zeyrek being offered full-time work. While Hasan claimed Mr Zeyrek asked for full-time work, he said Mr Zeyrek did not want to be put on the books and insisted that he only be paid in cash. Huseyin, on the other hand, said Mr Zeyrek did not want to work full-time hours because it would affect his Centrelink benefits.
462 When cross-examined about the records he gave to Mr Ravenscroft and Inspector Higgs during their inspection of the Newroz premises on 5 August 2021, Huseyin (like Kahraman) was quick to state he knew nothing about the documents he provided. ts 224.

463 However, the matter I have the greatest difficulty in accepting as true, is the explanation Huseyin provided for the text messages and photographs he was shown in cross-examination. If accepted, Huseyin’s explanation was as Ms Inkster suggested, ‘quite an extensive roleplay’. ts 221.

464 During his evidence, Huseyin said that he and Mr Zeyrek were close ‘like brothers.’ ts 221.
Inherent in his evidence was a suggestion that in building this bond, Huseyin was prepared to engage in dishonesty for Mr Zeyrek.
465 The alternative and more plausible view is that the text messages and photographs which Huseyin was shown provide evidence that Mr Zeyrek was entrusted with greater responsibility within the business, which is why he was working at night and seeking instruction from Huseyin on whether he could close the shop.
466 In view of the observations I have made about Huseyin’s evidence, I am not prepared to accept that Huseyin gave credible and reliable evidence to the Court.
Evidence of Mehmet Yasar
467 The respondent called Mehmet Yasar (Mr Yasar) from BVSC to give evidence about when Mr Zeyrek played soccer and attended training. Mr Yasar was called to show that there were times Mr Zeyrek was either playing soccer or attending training when he claimed he was at work.
468 Mr Yasar confirmed that Mr Zeyrek was one of his teammates at BVSC and that they played together in 2016, 2017 and 2018.
469 Mr Yasar said the normal training times were from 7.00 pm to 9.00 pm on Tuesdays and Thursdays. He said that all team members were required to attend at least one of those training sessions and if a team member did not train, they started their next game on the bench.
470 Mr Yasar said Mr Zeyrek was always at training and he started on the field for most matches. Whilst he said he was sure Mr Zeyrek did not attend every training session, he could not recall any occasions Mr Zeyrek missed both sessions in a week.
471 Mr Yasar said the team he was in with Mr Zeyrek played their fixtures on Sundays. He said kickoff times varied from 11.00 am to 3.00 pm. He said games ran for about two hours from beginning to end.
472 Mr Yasar stated that at the end of a game, team members would typically sit together and have a drink afterwards. He said Mr Zeyrek was a regular at these endofgame gatherings. In his statement, Mr Yasar said he recalled occasions when Mr Zeyrek stayed behind to watch a game that followed.
473 Mr Yasar said BVSC home games were played in Belmont. He said away games were played at a variety of locations, including Mandurah, Baldivis, Wembley Downs, Kwinana, North Perth, Kingsley, Spearwood, Scarborough or Beechboro.
Cross-examination of Mehmet Yasar
474 Ms Inkster cross-examined Mr Yasar about his evidence on the number of training sessions players were required to attend. Mr Yasar said players had to attend training at least once to secure a priority selection. However, he said the application of this rule depended on the number of players who were available to play in the Sunday game. ts 233  234.

475 Mr Yasar said that if 16 players turned up for training on Tuesdays and Thursdays, they were given priority selection. If, however, there was only 10, Mr Yasar said you did not have to have attended training to be selected for a Sunday game. ts 234.

476 Ms Inkster asked Mr Yasar if it was his recollection that Mr Zeyrek regularly attended one training session. Mr Yasar agreed with this. When questioned about whether he could recall the number of times Mr Zeyrek missed both training sessions, Mr Yasar responded saying:
I never said… he was attending both sessions. ts 235.

477 When pressed about whether Mr Zeyrek regularly attended postmatch debriefs, Mr Yasar accepted that he was not always there. In further questioning, Mr Yasar also confirmed players did not have to attend postmatch debriefs. ts 235.

Evidence of Nilufer Karakuyu
478 The respondent called Nilufer to give evidence. Nilufer provided a fourpage witness statement. She did not require assistance from an interpreter.
479 Nilufer said that from the year 2000, she worked at Newroz whenever she was needed. She said she was sometimes called in to help manage a rush or to work on weekends and public holidays.
480 Nilufer gave evidence that she married in 2013; gave birth to her first child in 2014 and had her second in November 2017. Prior to having her children, Nilufer said she worked around 10 days a month at Newroz. Nilufer said that immediately following the arrival of her children, she was not able to work in the shop as much, but with help from her mother, Döne, and a few days childcare each week, she was able to work more.
481 Nilufer described Newroz as a takeaway food store. She said Newroz initially, only sold kebabs but over time the range of foods sold was expanded. Nilufer said that while there were tables and chairs in the shop, the business did not provide table service or provide cutlery and crockery. She said that while customers could eat their meals at one of the tables in the shop, Newroz primarily sold fast food to be consumed elsewhere.
482 In her witness statement Nilufer described the work she performed at Newroz. She said whoever worked at the counter took food orders and payments, wrapped kebabs, chopped ingredients, cleaned counters and washed dishes. She said chopping tomatoes and lettuce was done in the morning before the shop became busy.
483 Nilufer said two parts of the day were busy: lunchtime and from around 5.00 pm when customers bought their evening meal. She said the workforce at Newroz was mostly made up of family members. Nilufer said there were only a few employees who were not family members.
484 Nilufer said the opening hours for Newroz varied. She said there was a wide span of hours and no one worked the whole day. She stated there was a rule that a family member had to be present in the shop at closing time to collect the day’s takings and to lock up. Nilufer said a cleaner came in after the shop was closed to make sure it was clean and ready for the following day’s trade. She said the arrangement involving a cleaner, who arrived after the shop was closed, commenced around 2013.
485 Nilufer said Kahraman or another family member, paid staff in cash each week. She said everyone was paid a flat rate for each hour they worked. She said Kahraman’s approach to paying employees was unusual. Nilufer said Kahraman paid each person for their hours worked and paid their tax afterwards. She said the amount they received was in effect ‘netoftax’.
486 Nilufer said Kahraman did not calculate a gross amount to be paid in wages and then deduct tax. She said because of this practice, employees were paid more than what they received in the hand. Nilufer said as far as she was aware, this practice applied up until 2012, before Newroz was taken over by her younger brother, Hasan.
487 Nilufer said she met Mr Zeyrek at Newroz. She said he started working there in or around 2014 or 2015. Nilufer said that at or around this time, she sometimes saw Mr Zeyrek at the Mulberry Tree Day Care Centre in Osborne Park (Mulberry Tree) both in the morning and in the evening.
488 Nilufer said she dropped her children off at the Mulberry Tree on Wednesdays and Fridays and sometimes on Mondays. She said she saw Mr Zeyrek drop his children off at about the same time as she dropped her children off and that she would see him pick his children up at around 6.00 pm.
489 Nilufer said she only saw Mr Zeyrek at the shop on weekday mornings. She said she could not recall seeing him at work on a weekend. Nilufer said it was common for Mr Zeyrek to go into the shop even when he did not have to be there for work. She said he sometimes took photos and left his phone at the shop before leaving again.
490 Nilufer stated that Mr Zeyrek was receiving assistance from the Red Cross, whose office was nearby. She said Red Cross employees bought their lunch at Newroz. She said for this reason, Mr Zeyrek generally avoided working at lunch times. Nilufer said she remembered Mr Zeyrek running into the kitchen on one occasion to hide from Red Cross staff because she understood that he had not disclosed that he had obtained employment.
Cross-examination of Nilufer
491 Nilufer was cross-examined by Mr Carroll. In cross-examination Nilufer confirmed that in the period 2016 and 2018, Newroz was open on public holidays except Christmas Day.
492 Mr Carroll questioned Nilufer about her evidence that she worked 10 days per month. She conceded that she only worked when the shop needed staff and when she could find someone to look after her children. Nilufer confirmed she did not close the shop in the period 2016 to 2018. She also admitted that she did not often work on weekends.
493 Mr Carroll asked Nilufer if it was possible an employee who was not a member of the Karakuyu family worked in the shop until closing time. Nilufer accepted this may have occurred.
494 Under cross-examination, Nilufer conceded that she was unable to comment on the cleaning duties Ali Ihsan performed because she did not work at night. Nilufer also accepted that any knowledge she had about the work he performed was because someone else had told her. ts 243.

495 When Mr Carroll asked Nilufer about her evidence that a timesheet was used to record working hours. Nilufer said she believed this did not really start until Hasan took over the business. She said this was because her father (Kahraman) was not good with paperwork. ts 243.

496 Under cross-examination, Nilufer accepted that she was not involved in keeping timesheets. When Mr Carroll suggested that between 2016 and 2018, employees did not fill out timesheets, Nilufer said that as far as she knew, employee timesheets were misplaced when the shop was renovated. ts 244.

497 Mr Carroll questioned Nilufer on when employees were paid in cash. Nilufer stated that the practice of paying employees a net amount in cash happened prior to 2012 before Hasan became the manager. Nilufer said she was unable to provide any evidence to explain whether this practice continued between 2016 and 2018. ts 244.

498 Mr Carroll challenged Nilufer’s evidence that she saw Mr Zeyrek collecting his children from the Mulberry Tree in the period 2016 to 2018. While Nilufer was adamant she saw Mr Zeyrek at the Mulberry Tree, she admitted not being able to recall if it was between 2016 to 2018. She also conceded that it may have been outside this period. ts 245.

499 Nilufer was questioned about her evidence that Mr Zeyrek avoided working during the lunch rush because he wanted to avoid being seen by staff from the Red Cross. In response Nilufer said she had only seen this happen once. When Mr Carroll suggested her witness statement indicated this was a more common occurrence, Nilufer answered by saying that what was contained in her witness statement was a mistake. ts 246.

Observations about Nilufer’s evidence
500 In the main, Nilufer’s evidence was of more assistance to the claimant’s case than the respondents. For example, Nilufer confirmed that it was possible employees other than family members, remained until closing time. ts 242.
She confirmed, contrary to Hasan’s evidence, that washing dishes and cleaning counters was work that staff performed.
501 Her testimony regarding the length and duration of staff working hours, was at odds with the evidence of Hasan and Huseyin regarding the hours they said they worked. Nilufer stated:
Our opening hours varied, but it was a wide span, so no-one worked for the whole of any day. Witness Statement of Nilufer Karakuyu, paragraph [30].

502 It was evident from Nilufer’s evidence on the hours she worked after having children, that she had little direct exposure to what was happening at Newroz in the period 2016 to 2018. She also accepted that she did not work at night.
503 It also became clear during Nilufer’s cross-examination that the only way she could attest to much of what was contained in her witness statement was because someone else had told her what to say. An example of this was her evidence regarding the loss of the time and wages records after admitting that she was not involved in keeping timesheets. ts 243  244.

504 Nilufer’s attempt to discredit Mr Zeyrek by stating she saw him collecting his children from the Mulberry Tree fell short after she accepted that she was unable to state when she saw him there. Her concession that she was mistaken about her evidence that Mr Zeyrek avoided working at lunch times so he would not be seen by staff from the Red Cross, was equally ineffectual.
505 Noting these observations, it is my view that Nilufer’s evidence is of limited probative value. Her answers in cross-examination raised doubts about the reliability of her evidence, that are similar to those I have about the evidence her male siblings have given.
Fatma’s Evidence
506 The respondent called Fatma to give evidence. She provided a three-page witness statement. Fatma did not require the assistance of an interpreter to provide her evidence.
507 Fatma is Kahraman’s second eldest daughter. She is the bookkeeper for Newroz. Fatma said she started working on a full-time basis at Newroz when she finished secondary school at the end of 2012. Fatma said in those days, she ‘pretty much [managed] the shop.’ Witness statement of Fatma Kara, paragraph [12].

508 Fatma said that in 2007 she bought her own kebab shop in partnership with her sister, Nilufer. She said they worked together in their shop until they sold the business in 2009. Fatma said that while she was running her store, she provided bookkeeping services for both businesses.
509 Following the sale of the business she operated with Nilufer, Fatma said she continued to manage the books for Newroz. Fatma said she still performs this work and that from time to time, she also works at Newroz, but to only fill gaps.
510 Fatma stated that her brother, Hasan took over Newroz when he graduated from secondary school in or around 2011 or 2012.
511 Fatma gave evidence about the working hours at Newroz. She said one person typically opens the shop at around 7.30 am or 8.00 am in the morning, at which time the machines are turned on and preparations are made for the day’s trading.
512 Fatma said that at around 9.30 am, another person usually comes in to deal with customers while the other stays in the kitchen to chop vegetables and other salad ingredients. Fatma said mornings are quiet, so the business needs fewer people in the shop. She said that around 11.40 am the lunch rush begins and continues until about 2.00 pm. During this period, three staff are required.
513 She said that between 2.00 pm and 5.00 pm the shop gets quiet and only two people are needed. Fatma said that from 5.00 pm until close, there is a dinner rush. She said the business usually has three people working at this time.
514 Fatma said a family member always takes responsibility for closing the shop. She said closing involves collecting the day’s takings and delivering them to the family home. Fatma said there is a strict rule that only family members are allowed to close the shop. In her witness statement she said that because Mr Zeyrek was not family, he was not allowed to close. Fatma said that after the store closed, a cleaner arrived to prepare the shop for the following day.
515 Fatma said each person’s working hours during the week are consistent and almost fixed. She said a record is made of the number of hours each person works and is paid. Fatma said that until recently, all payments were made weekly in cash.
516 Fatma said Newroz paid each person a flat amount and tax was not deducted from the payment. She said this was because the business paid any additional amounts that had to be withheld and remitted to the ATO. Fatma said the amount each person was paid in cash was, in effect, a net amount after tax.
517 Fatma said she first met Mr Zeyrek in around 2013, when he came to work at the shop. She said he worked ‘much the same pattern of hours from the beginning of his employment until the end.’ Witness statement of Fatma Kara, paragraph [34].
She said he only worked on Mondays, Wednesdays and Fridays and he did not often work full days or on weekends.
518 Fatma said she asked Mr Zeyrek to work on weekends but he refused. She also did not accept Mr Zeyrek worked a minimum of 64.5 hours per week. In her witness statement, Fatma stated:
No-one in our business worked that many hours. Witness Statement of Fatma Kara, paragraph [39].

Cross-examination of Fatma Kara
519 Fatma was cross-examined by Ms Inkster. After confirming that she did not regularly work in the shop and only went in to help out when needed, Fatma stated that between 2016 and 2018 she worked every Saturday in the shop from 9.00 am to 5.00 pm.
520 When Ms Inkster suggested her answer about the frequency of her work on Saturdays was inconsistent with the evidence in her witness statement that she ‘help[s] out with counter duties [from time to time] but only to fill gaps’, Fatma disagreed. ts 251  252.

521 In response to questioning from Ms Inkster, Fatma denied that Newroz did not keep time and wages records until the renovation in 2017. When Ms Inkster suggested that time and wages records were not kept after the renovation, Fatma said that to her knowledge, these records were kept. ts 252.

522 When asked about the number of hours family members worked in contrast to employees who were not family members, Fatma sought to draw the same distinction that Hasan drew in his evidence. This was despite her evidence the ‘no-one’ worked as many as 64.5 hours per week. ts 252  253.

523 When challenged about her evidence that ‘[n]o one but family is allowed to close the shop’ and that family members performed all the tasks involved in closing the store, Fatma admitted that she did not work at night. She said her knowledge of what happened at closing time is because of what her brothers told her and the records she receives as the bookkeeper. ts 253.

524 When asked about where the ‘bookkeeping records’ are kept, Fatma responded by saying they were ‘[w]ith the accountant.’ ts 253  254.
Following this, Ms Inkster showed the 2021 handwritten records to Fatma.
525 After Fatma confirmed that she was familiar with the document. Fatma agreed with Ms Inkster that she obtained her information about what was happening at Newroz from documents like the 2021 handwritten records. ts 253  254.

526 Ms Inkster confirmed with Fatma that the 2021 handwritten records showed that Mr Zeyrek had worked four hours per day, Monday to Friday, in January 2021. However, when Ms Inkster suggested the 2021 handwritten records were inaccurate because Mr Zeyrek no longer worked there at this time, Fatma disagreed. ts 255.

Observations about Fatma’s evidence.
527 I am unable to accept that Fatma gave reliable evidence in this matter. It was misleading for her to suggest the regular work she said she performed all day on Saturdays was merely filling gaps. Her evidence was also inconsistent with Hasan’s.
528 Although not mentioned in his witness statement, Hasan, in cross-examination, suggested the reason Newroz employees were not paid by EFT was a matter of employee choice. In contrast, Fatma said Newroz had always paid its employees in cash, which I understood her to mean that EFT was not utilised at any point. Witness Statement of Fatma Kara, paragraph [31].

529 As the bookkeeper, her level of knowledge about the records of the business was not to a standard that would reasonably be expected of a person in this role. There was no better illustration of this than Fatma’s evidence regarding the 2021 handwritten records.
530 While her evidence regarding the pattern of hours she says Mr Zeyrek worked from the beginning to the end of his employment was not only inconsistent with the 2021 handwritten notes, Fatma was adamant they showed Mr Zeyrek was still employed at Newroz when it was already conceded he no longer worked there.
531 In addition, Fatma’s statement that Mr Zeyrek only worked Mondays, Wednesdays and Fridays was inconsistent with Huseyin’s evidence, who said Mr Zeyrek ‘was pretty much on call’. ts 214.

Evidence of Umut Ozkalfa
532 The respondent called Umut to give evidence. He provided a two-page witness statement. Umut gave his evidence without assistance from an interpreter.
533 Umut, who is 27 years old, said he arrived in Australia in 2015 on a student visa. He is currently studying a Bachelor of Psychology at Curtin University and he works at Newroz in Scarborough.
534 Umut is of Kurdish descent and travelled to Australia from Türkiye. He speaks Turkish, Kurdish and English. Although not related to the Karakuyu family, he said he had become close to them since arriving in Australia and from working at Newroz. Umut said he lives with Mehmet. He moved in with him about one and a half years ago.
535 Umut said he came to study English at the Cambridge International College in East Perth. He said he often went to Newroz for lunch or dinner. This led to him becoming friends with Hasan, Huseyin, Ali Ihsan and Mehmet.
536 Umut said Hasan offered him a job at Newroz towards the end of 2016. He said around this time he was studying at university, so he only worked on a casual basis. He said Hasan, Mehmet or Ali Ihsan asked him to fill in if someone was sick or if they needed help during busy periods, like the dinner rush.
537 Umut said he did not have a clear memory of the dates and times he worked in the period 2016 to 2018, only that he did not have regular hours. Umut said this changed from the middle of 2018 when he started working more frequently.
538 Umut described himself as ‘an allrounder’. He said he would take orders, wrap kebabs, arrange fries (hot chips), wash dishes and cut meat for kebabs. He said he never closed the shop. He said this was because he was not needed after the dinner rush. He said he never counted the day’s takings or took money to the Karakuyu family home.
539 Umut said Hasan paid him in cash. He also said there was a shift book or ‘something like that’ to record his working hours. Witness Statement of Umut Ozkalfa at [20].
He said he never worked with Mr Zeyrek. Umut also said he did not often see Mr Zeyrek when he went to Newroz for a meal.
540 Umut said he became friends with Mr Zeyrek after he started working at Newroz. Umut said he went to the casino a few times a month with Mr Zeyrek, Mehmet and Huseyin.
Cross-examination of Umut Ozkalfa
541 Umut was briefly cross-examined by Mr Carroll. Under cross-examination Umut said he did not recall working with Mr Zeyrek. He also said he could not recall Mr Zeyrek paying his wages in cash.
542 Mr Carroll asked Umut about his working hours after Mr Zeyrek left Newroz in late 2020. Umut agreed that he worked on Mondays, Wednesdays and Fridays from 9.30 am until 12.30 pm.
543 When questioned further about his working hours, Umut said he was ‘100% sure’ he did not work five days per week. ts 257.

Observations about Umut Ozkalfa’s evidence
544 Umut’s evidenceinchief that he never worked with Mr Zeyrek is quite different to the answer he gave under cross-examination; that he could not recall working with Mr Zeyrek.
545 While this inconsistency might be viewed as splitting hairs, the balance of the answers Umut gave during his cross-examination and which he was certain about, were more damaging to the respondents’ case.
546 Umut’s answers to the questions Mr Carroll asked him were inconsistent with the evidence Hasan gave about the entries in 2019  2020 wage records. They were also inconsistent with the documentary evidence the respondents disclosed in response to the Notices to Produce, which included the 2021 handwritten records.
547 It was Hasan’s evidence that some of hours recorded for Mr Zeyrek in the 2019  2021 wage records after he had resigned were entered for Umut. ts 207, referring to the 2019  2020 wage records enclosed in the claimant’s first statement – Attachment ‘JDD 16’.
If I accept Hasan’s explanation for the entries in the 2019  2021 wage records, Umut worked more hours on more days than what he said he did.
548 In addition, Umut’s evidence about the hours he worked at Newroz is not consistent with the BAS payroll reports the accountants disclosed to the claimant and to Mr Ravenscroft.
549 Although Umut said he worked at Newroz from the later part of 2016, his name does not appear in the BAS payroll reports during the financial years prior to 1 July 2020.
550 For the financial year 1 July 2020  30 June 2021 and the period 1 July 2021  22 August 2021 the entries in the BAS payroll reports for the wages Umut was supposedly paid, do not align with the 2021 handwritten records.
551 Noting the inconsistencies between Umut’s evidence and the documentary material I have referred to, the only possible conclusions I can reach about his evidence are either:
(a) that Umut did not work at Newroz when he says he did; or
(b) his hours of work were not recorded in a shift book in the way he says they were.
552 Either way, I regard the inconsistencies I have identified as significant. The evidence in Umut’s witness statement on these matters was either mistaken or untrue. For this reason, I am not prepared to accept the evidence Umut has provided in this matter is reliable. To the extent Umut’s evidence conflicts with Mr Zeyrek’s, I prefer the evidence from Mr Zeyrek.
Evidence of Mehmet Mavi
553 The respondent called Kahraman’s nephew, Mehmet to give evidence. He provided a two and half page witness statement. Mehmet gave his evidence with the assistance of an interpreter.
554 Mehmet, who is 32 years of age, said he came to Australia from Türkiye in 2012. He said from the date of his arrival until 2021, he lived in the Karakuyu family home. Mehmet now works at the Newroz store in Scarborough. Mehmet said he started work as a casual at Newroz at the end of 2013. He said he began working full-time in the business in 2020.
555 Mehmet described the duties he performed at Newroz. He said he chopped tomatoes, lettuce and onions, cooked on the grill, served customers, and closed the shop, which included counting the day’s takings and delivering the money to Kahraman. Mehmet said that only family members were allowed to perform this task.
556 Mehmet said that until he started working full-time in around 2020, he generally worked around 20 hours per week. He said he usually worked during the day but from time to time, he went in to close the shop. He said he also filled in for other family members when they could not perform their shifts. Mehmet said Hasan paid him in cash and that his hours of work were recorded in a paper record.
557 Mehmet said that he first met Mr Zeyrek in 2013 when he started working at Newroz. He said he usually saw Mr Zeyrek when he worked during the day on Mondays, Wednesdays and Fridays. He also stated that Mr Zeyrek never closed the shop or drove him to the Karakuyu family home. Mehmet said he never saw Mr Zeyrek dropping money off while he lived there.
558 Like Umut, Mehmet said he attended the casino together with Mr Zeyrek. He said he did this on the weekend, or sometimes on Wednesdays between 8.00 pm to 10.00 pm. He said he would stay with Mr Zeyrek and others for a few hours, depending on how the night went.
559 Mehmet said he saw Mr Zeyrek go into Newroz and take photos of himself on his phone even though he was not working. He said Mr Zeyrek sent these photos to his wife. He also said Mr Zeyrek left his phone at the shop, while he went out somewhere else. Mehmet said Mr Zeyrek did this because he did not want his wife to know that he was out gambling.
560 Mehmet, like Huseyin, said he did not remember working with Mr Oruc.
Cross-examination of Mehmet Mavi
561 Mehmet was cross-examined by Mr Carroll. Mehmet accepted that one of the jobs he was required to perform at closing was counting the takings. When it was suggested that Mr Zeyrek performed this task when he was not available to close the shop, Mehmet disagreed. ts 259.

562 Mehmet did not agree when Mr Carroll suggested there were occasions when he closed the shop together with Mr Zeyrek. He also did not accept that Mr Zeyrek gave him lifts home after work. ts 259.

563 When Mr Carroll showed Mehmet a photograph of the pair at the shop in the early hours of 29 September 2019, Mehmet denied they were at work. Rather, he responded by saying Mr Zeyrek took the photo so he could tell his wife he was working when he was not really at work. ts 259.
 
564 Mr Carroll challenged Mehmet’s evidence that he used to attend the casino with Mr Zeyrek on Wednesday nights and on weekends between 8.00 pm and 10.00 pm. In response, Mehmet maintained that he attended the casino with Mr Zeyrek at these times. ts 260.

565 Mr Carroll asked Mehmet if he knew Mr Oruc. In reply, Mehmet twice said that he did not know him. Following this, Mr Carroll showed Mehmet a text exchange that was attached to Mr Oruc’s witness statement between himself and Mr Oruc on 7 December 2013. Third Witness Statement of Yusuf Orcun Oruc, attachment ‘YO 12’; the text exchange is in Turkish.

566 When Mr Carroll suggested the text exchange showed Mehmet had asked Mr Oruc to bring him a work shirt to Newroz, Mehmet said he could not recall the text exchange. ts 260.

Observations about Mehmet Mavi’s evidence.
567 In his witness statement Mehmet said he did not remember working with Mr Oruc. This is quite different to what he said in cross-examination; that he did not know Mr Oruc.
568 The difficulty I have with this part of Mehmet’s evidence is that it is contradicted by the text exchange Mr Carroll showed him, which Mehmet had notice of before the hearing. This inconsistency in Mehmet’s evidence is not insignificant particularly when Mr Oruc was not challenged in cross-examination about the authenticity of this text exchange or its content.
569 In my view, this inconsistency was sufficient to cast doubt on all of Mehmet’s evidence. In the absence of an explanation as to why Mehmet was having a text exchange with someone he claims to have not known, it is my view that Mehmet’s evidence if not dishonest, was at the very least, unreliable.
Observations about the Evidence Overall
570 To the extent there was a conflict between the evidence from the respondents’ witnesses and the claimant’s on critical matters, I have preferred the evidence from the claimant and the witnesses she called to give evidence.
571 Contrary to the rule in Browne v Dunn (1893) 6 R 67, which requires a party in cross-examination to put to their opponent’s witnesses, the nature of the case upon which they rely to contradict that witness’s evidence, See also Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1983] 1 NSWLR 1; (1983) 70 FLR 447 at [16].
Mr Zeyrek, Ms Azbay and Mr Oruc were not challenged on key parts of their evidence.
572 An example of this, was with the respondents’ failure to squarely put the proposition in cross-examination to Mr Oruc that he never worked for Newroz. Significant parts of the claimant’s evidence were similarly not challenged in this way and Mr Ravenscroft’s witness statement was accepted into evidence by consent.
573 Also significant was the respondents’ failure to call Ali Ihsan, Mr Patel or Mr Lyra to give evidence, and to which the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) applies.
574 In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, Heydon, Crennan and Bell JJ described the rule in Jones v Dunkel in the following terms (at [63]  [64]):
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call the witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.
The rule in Jones v Dunkel permits an inference not that evidence, not called by a party, would have been adverse to the party but that it would not have assisted the case. (footnotes omitted)
575 Two examples of the respondents’ failure to call witnesses who were material to the proceedings, arose in relation to:
i. the evidence Mr Zeyrek gave regarding the preparation of his tax returns; and
ii. the contents of the BAS payroll reports the respondents disclosed to the claimant and to Mr Ravenscroft.
576 A further example arose in relation to the respondents’ failure to call Ali Ihsan who Mr Zeyrek and Mr Oruc worked with at night and who the respondents said they engaged to perform the cleaning duties after Newroz closed.
Mr Zeyrek’s Tax returns
577 There is no dispute the tax returns Mr Zeyrek submitted to the ATO during the claim period were inaccurate. Mr Zeyrek acknowledged he signed tax declarations that understated his working hours and the income he received. I also note the tax returns contained deductions for work-related expenses including uniforms, shoes and laundry.
578 The claimant attributed the blame for these inaccuracies to the Newroz accountants, who Mr Zeyrek said Kahraman sent him to see. Mr Zeyrek stated that when he met with Mr Lyra to prepare his tax returns, Mr Lyra would provide him with a pre-prepared tax return that recorded his personal details, the name of the business, his annual salary and the tax that was withheld.
579 The difficulty the explanation Mr Zeyrek provided for his inaccurate tax returns presented for the respondents, is that it was not contradicted. As Mr Carroll submitted and I accept, Mr Zeyrek was totally reliant upon the accountants to prepare and submit his tax returns and yet neither Mr Lyra nor Mr Patel were called to give evidence to contradict this testimony.
580 Mr Zeyrek said he used Mr Lyra to prepare his tax returns because he had access to Newroz business records to obtain information about his annual salary and the amount of tax that was withheld. It is unsurprising the amounts for income received and tax deducted that were declared in Mr Zeyrek’s tax returns were reflected in the BAS payroll reports, the Newroz accountants prepared.
581 The failure by the respondents to call their accountants to give evidence leaves open a Jones v Dunkel inference that the evidence Mr Lyra and Mr Patel would have given about these matters would not have assisted the respondents’ case.
582 The respondents did not give a reason as to why the Newroz accountants were not called to give evidence. In the circumstances it is appropriate that such an inference be drawn.
The BAS Payroll Reports
583 It is my view the BAS payroll reports are inaccurate in several ways. Firstly, these documents other than what is declared in Mr Zeyrek’s tax returns, do not align with the other employment documents the respondents produced.
584 The BAS payroll reports do not show the names of everyone who worked in the shop and they record Kahraman and Döne as employees when it is the respondents’ case they were not actively involved in the business when the accountants prepared these documents.
585 Furthermore, there are periods in the BAS payroll reports where the staff members named in these records, including Mr Zeyrek, are recorded as having received no income when there was evidence from the respondents they had worked at the relevant time. By way of example, Mr Zeyrek was recorded as not receiving any income in quarters three and four of the 2018  2019 financial year when there was evidence he had worked at Newroz at this time. See Witness Statement of Jillian Denise Dixon – Attachment ‘JDD 3’.

586 Having set out my observations on the evidence overall I will now turn to consider whether the excuse the respondents provided for failing to keep employment records to escape the imposition of the reverse onus is reasonable.
The Respondent’s excuse for not providing employment records
587 The excuse the respondents provided as contemplated under s 83EB(2) of the IR Act for not providing employment records was in two parts. The first was that the responsibility to keep employment records was delegated to Hasan.
588 The second was in the evidence Hasan and Fatma provided. Both said Newroz kept employment records, but they were lost during the renovation in 2017.
Delegation excuse
589 Regarding the first aspect, it is not disputed that Döne was a silent partner and left the operations of the business to other family members. Similarly, Kahraman says that from 2012 or 2013 he had handed control of the business to Hasan.
590 The respondents submitted that when Mr Zeyrek was employed, Kahraman and Döne were not actively involved in the daytoday running of the business, in the way a proprietor would normally be. It was contended that because there were other people in charge of the business and the employment records were held either by Hasan or the Newroz accountants, the Court could not be satisfied the respondents had failed to produce employment records they no longer had access to.
591 In reply, the claimant contended that the respondents’ submission on this issue should be rejected because they had conceded they employed Mr Zeyrek and there was no evidence before the Court to show they had no control over or were unable to access employment or other records. It was also noted the respondents, despite the change in ownership, are still directors of the company that now runs Newroz.
592 The difficulty I have in accepting that delegation provides a reasonable excuse, is that it ignores that business partners have a responsibility to ensure they take reasonable steps to keep and maintain employment records. I also doubt, given the evidence on his continuing involvement in the business, that Kahraman had relinquished control to the extent claimed.
593 While it may be said that Döne played no real active part in the management of Newroz, the same cannot be said of Kahraman. The evidence of Mr Ravenscroft’s and Inspector Higgs’s interactions with Kahraman on 23 July and 5 August 2021 show that he retained authority within the business.
594 I also note Kahraman told Mr Ravenscroft and Inspector Higgs during their visit on 5 August 2021 that he owned Newroz. He also told Mr Ravenscroft who to direct their inquiries to regarding the production of records. When questioned about whether Mr Oruc worked at Newroz, Kahraman prefaced his answer by describing himself as the ‘owner of [the business]’. ts 141.

595 Throughout the hearing the respondents were at pains to suggest that Newroz is a family business, in which each of the family members were involved. For this reason, the suggestion that Kahraman was unable to secure access to or had little control over the records of the business is quite disingenuous.
596 Having admitted the respondents employed Mr Zeyrek, it necessarily follows they cannot escape the liability to ensure they took reasonable steps to comply with any duties, responsibilities and obligations that attached to this employment relationship.
Lost records excuse
597 In relation to the second part, while the loss of documents may in some situations provide a reason as to why employment records cannot be provided, it does not in the present case, explain why the respondents did not keep or maintain these records after the renovation.
598 In addition, Mr Heathcote in his closing submissions, said that even if the respondents had retained the employee records they claimed to have lost during the renovation, it is likely they would have been imperfect.
599 It is critical, for the purpose of ensuring, compliance with industrial awards and other workplace obligations, particularly with respect to vulnerable workers without strong language skills, that employers keep and securely retain accurate employee records. Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 at [66]  [67]; see also Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [548] (Katzmann J) and Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 at [55] (White J).

600 In view of the importance of this obligation, the reason provided by an employer who is unable to produce such records cannot be considered in a vacuum. In assessing whether the excuse provided by the respondents is reasonable, it is entirely appropriate to have regard to the state of the employee records the respondents did provide.
601 On this, the records the respondents produced are not only inaccurate and incomplete, but they are at odds with the BAS payroll records.
602 In my assessment of the ‘lost records excuse’, I have had regard to Hasan and Fatma’s credibility as witnesses. As I have concluded they presented as unreliable witnesses, I doubt the excuse they provided for failing to keep employee records can be soundly relied on.
603 It is reasonable to expect that Hasan, in his role as the Newroz manager, and Fatma in her role as the bookkeeper, should have ensured accurate employee records were kept and properly maintained. The evidence establishes that neither discharged this task to a reasonable standard.
604 In the circumstances, I am not prepared to find the excuse the respondents provided for failing to keep employee records through these witnesses was reasonable. Accordingly, I therefore find that s 83EB(1) is engaged and the reverse onus of proof applies
Which claim period applies?
605 To decide the issue of the claim period that applies under s 83A of the IR Act, I am required to make a finding on whether it appears the respondents, when they were required to produce employment and other records in response to the Notices to Produce, failed to produce a record relevant to the proceedings.
606 On this issue, the claimant submitted that the Notices to Produce required the respondents to produce, by 26 April 2022, employment records for Mr Zeyrek including:
i. Mr Zeyrek’s signed tax file number declaration form;
ii. PAYG payment summaries for the period 2013 to 2019; and
iii. documents relating to the change in ownership.
607 The claimant submitted the respondents failed to provide copies of the employment records sought by 26 April 2022. The claimant contended that by reason of the respondents’ failure to provide these documents, I should find that s 83A(2)(b) of the IR Act applies to the proceedings and the primary claim period applies. Claimant’s closing submissions, ts 273.

608 The claimant submitted the evidential basis for this finding lies in the admissions the respondents made in the Statement of Agreed Facts and the evidence contained in the claimant’s first witness statement, which in the main was unchallenged.
609 The respondents opposed the claim period being extended under s 83A of the IR Act with submissions that were broadly consistent with their arguments against the application of the reverse onus in this matter. Respondent’s closing submissions, ts 310.

610 The respondents denied that a finding could be made that they failed to produce employment or other records relevant to the proceedings, thereby enlivening ss 83A(2)(b)(i) and 102(1)(a) of the IR Act because neither Kahraman or Döne were in possession of or had control of the documents the claimant sought with the Notices to Produce.
Primary claim period applies
611 I accept that in the context of the current proceedings, a copy of a signed tax file number declaration form would have likely provided evidence of when Mr Zeyrek commenced employment with the respondents. The PAYG statements were similarly relevant because such documents typically provide evidence on wages paid and the amount of tax withheld.
612 For the same reasons, as set out in the preceding paragraphs [589]  [604] I rejected the excuses the respondents gave for failing to keep and maintain employment records, I similarly do not accept that the respondents’ level of involvement in the business provides an excuse for their failure to provide the records the claimant sought pursuant to their Notices to Produce.
613 Accordingly, I find that the respondents failed to produce records that were relevant to the proceedings, which they were required to provide pursuant to the Notices to Produce. As a result of this finding, I have concluded the present case is one to which s 83A(2)(b)(i) of the IR Act applies and that it is appropriate the claim period be extended.
614 I therefore find that primary claim period applies, which runs from 27 April 2016 to 31 December 2018 and for which there were some 140 weekly pay periods (claim period).
Application of the Award
615 When determining if the respondents engaged in the alleged award contraventions, I am first required to make a finding on whether the Award applied during the claim period. In relation to this, s 37 of the IR Act, provides that an award has effect, according to its terms and subject to those terms, operates throughout Western Australia.
616 The terms of the Award in the present case required the claimant to establish that Mr Zeyrek was:
i. Employed in one of the callings/classifications described in clause 21 of the Award (Wages); and
ii. Employed in a ‘Restaurant and/or Tearoom’, ‘Catering Establishment’ and/or by a ‘Catering Contractor’ as those terms are defined in clause 6 of the Award (Definitions) that I previously referred in paragraphs [32]  [34] of these reasons.
617 On the first element, the respondents conceded during the hearing, that if I found the Award applied, Mr Zeyrek was employed in a Level 2 classification as set out under clause 21. ts 134; see also ts 267.

Respondents’ submissions on clause 6
618 On the second element, the respondents contended that Newroz did not fall within the definition of a ‘Restaurant and/or Tearoom’ as defined in clause 6 of the Award. To this end, the respondents submitted that a ‘kebab shop’ was not listed within the class or type of businesses that are referred to in the definition of a ‘Restaurant and/or Tearoom’, as it applied at the time of the alleged contraventions.
619 The respondents also submitted the definition was restricted to businesses that prepare food to be re-sold or served elsewhere but it did not extend to include an outlet that prepared the food it sold to be consumed elsewhere.
620 As I understand the respondents’ submissions, the words used in clause 6 confine the definition of a ‘Restaurant and/or Tearoom’ to those businesses where food is served to be consumed on the premises, where table service is provided.
621 The respondents’ submitted that the use of the words ‘includes any establishment or place where food is prepared and/or cooked to be sold or served for consumption elsewhere’ does not extend the scope of the Award to takeaway food outlets.
622 Rather, these words suggest the Award is confined in operation to restaurants and/or tearooms where table service is provided and catering businesses that prepare food to be supplied to a third party that sells the food for consumption somewhere else.
623 Noting this submission, the respondents went to some lengths to lead evidence that Newroz did not provide table service, that food was not served on plates with cutlery and if customers did use the tables and chairs in the premises, it was more a matter of choice than the function of a dine-in restaurant.
Claimant’s submissions on clause 6
624 The claimant submitted the respondents’ business fell under the definition in the Award of a ‘Restaurant and/or Tearoom’ because the evidence established:
i. Newroz was a place where food was prepared and served for consumption on the premises; and
ii. Newroz also prepared and/or cooked food to be sold or served for consumption elsewhere.
625 In support of this argument, the claimant referred to the decision of the Full Bench of the Western Industrial Relations Commission (WAIRC) in Jubilee Jackpot Pty Ltd v Federated Liquor and Allied Industries Employees’ Union of Australia, Western Australian Branch, Union of Workers (1989) 69 WAIG 1048 (1988) 68 WAIG 2851 (Jubilee Jackpot), which involved an appeal of a decision by an Industrial Magistrate who held the Award applied to a McDonald’s franchise in Fremantle.
626 The claimant noted the respondent in Jubilee Jackpot had submitted to the Full Bench its business was not a restaurant, but a fast-food outlet (and therefore, not covered by the Award). The respondent contended the Award should be read down in light of the definition of ‘fast food’ under the Catering Workers’ (Fast Food Operations, Catering and Restaurant) Agreement, 1979 (1979 Fast Food Agreement).
627 At first instance, Industrial Magistrate Walsh found that at McDonald’s Fremantle:
[F]ood is prepared and cooked to be sold or served on the premises and elsewhere. I am satisfied that on the evidence that has been adduced by the complainant in these proceedings and by the evidence of the proprietor of this actual business – it is quite clear that there was food being prepared on that premises, being consumed on the premises and being taken away. Federated Liquor and Allied Industries Employees’ Union of Australia, Western Australian Branch, Union of Workers v Jubilee Jackpot Pty Ltd trading as McDonald’s Family Restaurants (1988) 68 WAIG 2851 at 2851.

628 The Full Bench accepted that McDonald’s Fremantle was clearly a ‘restaurant’ for the purpose of the Award and noted that the term should not be read down. In dismissing the appeal. the Full Bench at 1050 observed:
The premises, according to the evidence, were clearly a “meal room” or, at least, a place or building or part thereof in or from which food is sold or served for consumption on the premises. In addition, it is clear that the premises were “an establishment or place where food is prepared and/or cooked to be sold or served for consumption elsewhere”. Jubilee Jackpot v Federated Liquor and Allied Industries Employees’ Union of Australia, Western Australian Branch, Union of Workers (1989) 69 WAIG 1048 at 1050.

629 The claimant submitted that Jubilee Jackpot was referred to in Minister for Labour v Como Investments Pty Ltd (1990) 70 WAIG 3539 at 3542 (Como Investments) as authority for the proposition that:
[A] fast food outlet fell under the description of a “meal room” or a “place or building or part thereof in or from which food is sold or served for consumption on the premises”; …
[A]n establishment or place where food is prepared and/or cooked to be sold or served for consumption elsewhere.
630 The claimant contended that the Full Bench in Como Investments considered the definition of a ‘restaurant’ in the Award and held that it ‘clearly contemplates fastfood outlets.’ Minister for Labour v Como Investments Pty Ltd (1990) 70 WAIG 3539 (Como Investments) at 3543

631 The claimant referred to Hungry Jacks Pty Ltd v Wilkins (1991) 71 WAIG 1751 which concerned an appeal to the Industrial Appeal Court (IAC) from a decision of the Full Bench of the WAIRC, affirming a decision from an Industrial Magistrate, who found that a group of fast-food franchises had breached the Award.
632 The claimant submitted the IAC had noted the fast-food franchises in question were all covered by the 1979 Fast Food Agreement, which took precedence over the Award. However, in reaching this finding, the IAC did not disturb the Industrial Magistrate’s findings that places of business where ‘food is prepared or cooked to be sold or served for consumption elsewhere fell within the definition of a restaurant under the [Award].’ Claimant’s submissions at [33].

633 The claimant referred to Nyree Collins, Department of Consumer and Employment Protection v Yule Brook College Parents and Citizens’ Association Incorporated [2003] WAIRC 8476; (2003) 83 WAIG 1787 (Yule Brook College), in which Industrial Magistrate Tarr considered a claim under s 83 of the IR Act, alleging the respondent had failed to comply with the provisions of the Award in relation to its employment of a ‘Canteen Co-ordinator’.
634 The claimant submitted that the parties in Yule Brook College agreed the Canteen Co-ordinator’s duties relevantly included preparing food for sale, ensuring the canteen was clean, and recording daily sales and orders.
635 The canteen itself was described as ‘typical of a school canteen’ which ‘provides food and drinks for the students and staff at morning recess and lunch time’. Nyree Collins, Department of Consumer and Employment Protection v Yule Brook College Parents and Citizens’ Association Incorporated [2003] WAIRC 8476; (2003) 83 WAIG 1787 (Yule Brook College) at [10].
Generally, the ‘hot food was of a type where the product only required heating and included hamburgers, chiko rolls, hot dogs and pies. Cold meat and salad rolls and sandwiches were also available, together with snacks, sweets and a variety of drinks’. Yule Brook College at [10].

636 It was noted the lunch orders were prepared by the Canteen Co-ordinator or her voluntary helpers. The food the canteen sold was generally consumed on the school grounds. Yule Brook College at [11].

637 The claimant submitted his Honour in Yule Brook College described clause 6(1) of the Award as ‘very wide’ and determined that the canteen in question was a ‘place … in or from which food is sold or served for consumption’. Claimant’s submissions at [38].

638 The claimant also noted:
i. His Honour held in Yule Brook College that because the canteen was part of the school, it could be said that the ‘food sold is consumed on the premises, albeit not inside the canteen kitchen’; and
ii. His Honour continued, ‘[i]n any event clause 6(1) includes “any place where food is prepared and/or cooked to be sold or served for consumption elsewhere.”’ Yule Brook College at [12].

Why the Award applies
639 There are at least three reasons why I consider the Award applied to the respondents. The first lies in the construction of the definition of a ‘Restaurant and/or Tearoom’ under clause 6.
640 Relevant to my reasoning on how clause 6 should be construed, are the established principles that apply when interpreting industrial awards and instruments.
641 These principles were set out in Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595, Smith AP (as her Honour then was) and Scott CC observed at [21]  [23]:
Interpreting an industrial agreement - general principles of interpretation
The approach that is to be applied when interpreting an industrial agreement is well established. This is:
(a) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
(b) The task of construction of an industrial agreement is to be approached in a way that allows for a generous construction: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362.
(c) Industrial agreements are made for industries in light of the customs and working conditions of each industry and must not be interpreted in a vacuum divorced from industrial realities: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498; City of Wanneroo v Holmes (378 - 379) (French J).
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement. In Re Harrison; Ex parte Hames [2015] WASC 247, Beech J said [50] - [51]:
The general principles relevant to the proper construction of instruments are well-known. In summary:
(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties’ subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) the apparent purpose or object of the relevant transaction
(5) can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(6) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and
(7) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation (Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Kidd v The State of Western Australia [2014] WASC 99 [122]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] - [112]; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [55] (Martin CJ, Pullin & Murphy JJA agreeing)).
These general principles apply in the construction of an industrial agreement (Director General, Department of Education v United Voice WA [2013] WASCA 287 [18] - [20] (Pullin J, Le Miere J agreeing), [83] (Buss J)). The industrial character and purpose of an industrial agreement is part of the context in which it is to be construed (Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ and McHugh J); Director General v United Voice [81]; see also Amcor v CFMEU 66 (Kirby J), 129 - 130 (Callinan J)).
To these principles, the following observations made by Pullin J in Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1 [18] - [19] should be added:
The Agreement has to be construed to determine what the intention of the parties was at the time the Agreement was entered into. This has to be determined by ascertaining what a reasonable person would have understood the words of the Agreement to mean taking into account the text, the surrounding circumstances known to the parties and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22].
Surrounding circumstances may only be taken into account if the ordinary meaning of the words used by the parties is ambiguous or susceptible of more than one meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352; McCourt v Cranston [2012] WASCA 60 [23].
642 In applying these principles, I do not accept that because ‘kebab shops’ are not specifically named in the class of businesses listed under the definition of a restaurant under clause 6, they are excluded from the scope of the Award.
643 The construction of clause 6 that was contended for the respondents, is overly narrow and pedantic and therefore at odds with the principles to be applied to the construction of awards and industrial instruments; see Kucks v CSR Ltd (1996) 66 IR 182 at 184 referred to in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [96] (Kirby J).
644 In my view, clause 6 of the Award is an inclusive definition and is cast in terms that are sufficiently broad to include food outlets, other than the types specifically named. As the Award provides a minimum safety net of wages and working conditions across the restaurant and catering industry, I find that a reasonable person would have understood clause 6 to have had broad application.
Case law on the application of the Award
645 Secondly, or assuming that I am wrong with my finding that kebab shops are capable of falling under the types of outlets named in the definition of a ‘Restaurant and/or Tearoom’, a further reason I consider the award applies is because of the case law the claimants referred to and that I have set out, in the preceding paragraphs [625]  [638].
646 The Full Bench in Como Investments accepted that a dine-in/takeaway food outlet is a ‘place where food is prepared and/or cooked to be sold or served for consumption elsewhere’, rather than a place where food is prepared to be taken to be resold somewhere else. Como Investments at 3543.

647 To this end, I accept the claimant’s submission that a comparison may be readily drawn between Newroz and the McDonalds franchise the subject of the Full Bench’s decision in Jubilee Jackpot. A kebab shop, with optional dinein seating is not materially different in what it does as business, to a McDonald’s or similar takeaway food outlet.
648 In my view, therefore, the case law referred to supports a finding that during the claim period, Newroz was a business where food was prepared and/or cooked to be sold or served for consumption elsewhere.
Food consumed on the premises
649 The third reason I consider the Award applies is because I accept the presence of chairs and tables at Newroz indicates that it was a place where food was consumed on the premises.
650 It is not in dispute there were chairs and tables where customers could sit and consume their meals. This was the case both prior to, and to a much greater extent, after the renovation in 2017.
651 In my view, it does not matter whether customer orders were taken at the counter, the food was served on plates with cutlery, served as wraps or provided in single use packaging; Newroz, because of the presence of chairs and tables was a place where food was and could be consumed on the premises.
652 The fact that customers both prior to and following the renovation had the choice to consume their food on the premises, was enough for Newroz to fall within the definition of a ‘Restaurant and/or Tearoom’ under clause 6 of the Award. For this reason, I consider the Award applied during the claim period.
Findings on the Award Contraventions
653 Having concluded the Award applies, I will now turn to consider each of the matters that are relevant to establishing whether the alleged award contraventions occurred.
654 The first of these is the classification and rates of pay that applied during the claim period. The second is in respect of the hours Mr Zeyrek worked during the claim period.
Classification and Rates of Pay
655 As a result of the respondents’ concession that Mr Zeyrek was employed in a Level 2 classification under clause 21, it follows the respondents, where applicable, were required to pay the rates and allowances that are contained in the Award. ts 134; see also ts 267  268.

656 In relation to this, I accept the relevant clauses under the Award that I referred in the preceding paragraph [39] applied for the purposes of making the underpayment calculations.
Hours of Work
657 As the claimant explained in her evidence, the underpayment calculations, which set out the amounts by which it was alleged Mr Zeyrek was underpaid from week to week, rely upon the evidence that Mr Zeyrek and Ms Azbay provided.
658 While the respondents, through their witnesses, attempted to discredit Mr Zeyrek’s evidence and to a lesser extent, the evidence Ms Azbay gave, I am not satisfied the evidence the respondents’ witnesses provided, rose to the level that was necessary to affirmatively prove on the balance of probabilities that Mr Zeyrek did not work the hours he said he worked.
659 Noting the observations I have made about the evidence from each of the respondents’ witnesses, I am not satisfied they gave reliable accounts regarding the hours Mr Zeyrek worked. The respondents’ evidence was also not supported by reliable documentary evidence.
660 The evidence establishes that Mr Zeyrek commenced employment with the respondents in or around 2013. I accept that around the time he commenced employment with the respondents, Mr Oruc was working at Newroz.
661 While Mr Zeyrek initially may not have worked as many hours as the claimant alleged, I accept Mr Oruc’s evidence that Mr Zeyrek’s working hours increased as he became more experienced and competent in his job. I also accept that by the time Mr Oruc finished working at Newroz, Mr Zeyrek was working more than 40 hours per week.
662 As I have preferred Mr Zeyrek’s and Ms Azbay’s evidence to that of the respondents’ witnesses, I find Mr Zeyrek, typically worked, and was paid for working, a minimum of 64.5 hours per week. I also find that Mr Zyrek’s working hours were performed in a regular pattern that included the 76 ordinary hours per fortnight, contemplated under of cl 8 of the Award (Hours of Work), plus overtime. The evidence establishes that for performing the minimum hours described, Mr Zyrek was paid $1,280 per week, cash in hand.
663 In finding Mr Zeyrek performed the same number of hours per week in accordance with a standard roster as set out in the preceding paragraph [37], I do not accept that he was employed on a casual basis.
Immigration status
664 The respondents submitted that if I concluded Mr Zeyrek was untruthful in his evidence, it would lead me to find that he did not work the hours he said he did. In the paragraphs that follow, I have addressed particular matters which the respondents submitted raised doubts about the reliability of Mr Zeyrek’s evidence.
665 The first of these matters was in relation to Mr Zeyrek’s evidence about his immigration status. The respondents contended that I should find that it was unlikely that Mr Zeyrek, in or around 2012 or 2013, would have sought full-time employment at Newroz because he knew he was on a ‘student visa’ that placed a limit on the number of hours he could work.
666 I am not however convinced the evidence established this. Mr Zeyrek said he was on a bridging visa at or around the time he commenced work at Newroz, a point that was supported by Exhibit ‘C16’. On this evidence, which was not contradicted, there was no limit on the number of hours Mr Zeyrek was permitted to work.
Requests to work full-time hours
667 The second of these matters was in relation to requests that were made on the respondents’ behalf for Mr Zeyrek to work full-time. There were three different variations on the evidence of these requests, each of which were raised to impugn Mr Zeyrek’s credibility.
668 I do not accept Hasan’s evidence that he refused a request from Mr Zeyrek to work full-time on the condition that he was not placed on the books or paid by EFT so he could avoid declaring his true earnings to the ATO or Centrelink.
669 I am also not prepared to accept Huseyin’s and Fatma’s evidence in which they both said they offered additional hours to Mr Zeyrek, but he declined out of a concern the increased working hours would have resulted in his Centrelink benefits being reduced.
670 The evidence from Hasan, Huseyin and Fatma as to why they said Mr Zeyrek was not employed on a full-time basis was inconsistent and contradictory.
671 When this is weighed together with the respondents’ failure to keep employment records and Mr Oruc’s evidence that he was paid in cash and received Centrelink while he was working at Newroz, I am not convinced the testimony from the respondents’ witnesses on this point holds true.
Mr Zeyrek’s soccer commitments
672 The third of these matters was in relation to the evidence from the respondents regarding Mr Zeyrek’s soccer commitments. To this end the respondents called Mr Yasar to give evidence. However, I am not persuaded there was evidence to show that Mr Zeyrek’s soccer commitments, with either the BVSC or the BUSC, conflicted with the times he said he was working.
673 Mr Yasar’s evidence under cross-examination differed from the content of his witness statement. He insisted that he did not say Mr Zeyrek attended training on Tuesdays and Thursdays. Mr Yasar also conceded that Mr Zeyrek’s attendance at both training sessions was not mandatory. These concessions invite the conclusion that Mr Zeyrek only trained on Tuesdays, which was on his day off.
674 While I accept the time for Mr Zeyrek to get from his soccer games to work on Sunday evenings may have been tight, there was insufficient evidence from the respondents to show that Mr Zeyrek was unable to get to work after he played soccer. I also note from Huseyin’s evidence that he did not have difficulty getting to work on Sunday nights.
675 Mr Yasar’s evidence regarding the post-match gatherings did not rise to the level necessary to convince me that Mr Zeyrek was a regular participant in these meetings to the extent it prevented him from going to work at Newroz.
Working hours of family members
676 An important reason I find Mr Zeyrek worked the number of hours he said he worked is because Hasan and Huseyin both gave evidence they needed to work this many hours to cover the times that Newroz was open for business. This is despite Fatma declaring:
No-one in our business worked that many hours.
677 When he was asked about Fatma’s statement and how it compared with his working hours, Hasan sought to draw a distinction between staff and family members. I do not, however, accept there was a distinction between employed staff and family members, with the extended hours confined to family members.
678 It is my view this distinction is the product of a recent invention. It was thrown up to provide an explanation as to why there was inconsistency between Hasan’s evidence and what was contained in Fatma’s witness statement. Huseyin, who gave his evidence immediately after Hasan, did not draw the same distinction. On the contrary he said he thought Fatma was mistaken in her evidence.
679 While Fatma, in her evidence, sought to qualify her evidence by raising the distinction on the hours family and non-family staff members worked, noting my finding about the reliability of her evidence and that her qualification was thrown up the day after Hasan gave his evidence, I am not prepared to accept that working long hours was something that only family members did.
Advertised trading hours
680 It is of note the hours Mr Zeyrek said he worked fell within the range that Kahraman said the shop was open. Despite argument from the respondents’ counsel about the amount of weight I should attach to the trading hours as they appeared in social media posts and online menus that were attached to the claimant’s and Mr Zeyrek’s witness statements, they were broadly consistent with the trading hours that Hasan and Kahraman described in their evidence.
681 While Mr Zeyrek, Mr Oruc and Huseyin all gave evidence there were times the shop stayed open for longer, and it is possible Newroz followed its advertised trading hours after the nearby night club closed in 2014, it is still open to find Mr Zeyrek worked 64.5 hours per week.
682 This is because the claim for overtime in the underpayment calculations does not include hours worked outside the advertised trading hours or when Mr Zeyrek took cash to the Karakuyu family home. Claimant’s closing submissions, ts 332.

683 I therefore find the hours of work that Mr Zeyrek said he worked, are referable to the usual trading hours of the business.
Staff numbers
684 From the evidence, it is clear that during a normal working day, there were two clearly definable rush periods; one at lunch time and the other for the evening meal. It is also clear there were usually 2  3 staff members in the store at any one time, with three staff required during the lunch and evening rush periods.
685 On both occasions Mr Ravenscroft went to Newroz, there were at least two staff in the shop. When Mr Ravenscroft visited Newroz on 22 July 2021, it was close to the evening meal. On this occasion there were three staff members in the store.
686 From my observations of the evidence, it seems entirely plausible that Mr Zeyrek was required to work the hours he said he worked so staffing levels at Newroz could be maintained.
Relationship between the parties
687 In reaching my findings, it cannot be ignored the relationship between the parties in this matter endured over a seven to eight year period from 2013 to 2020. Although it was not directly put by either party, I was able to infer from the evidence, including from the exhibits, that the parties were at one time close.
688 During the hearing, there was some evidence Mr Zeyrek socialised with Mehmet and Huseyin and that he attended Huseyin’s engagement party with Ms Azbay. Mr Zeyrek also played soccer with Huseyin at the BVSC.
689 There was evidence Kahraman took out a loan so Mr Zeyrek and his wife could purchase a car. Hasan even went as far as to provide the false payslips to Mr Zeyrek so he could apply for home loan.
690 It is relevant to make this observation about the parties’ relationship because it potentially provides an explanation as to why Mr Zeyrek did not raise the issues the subject of these proceedings sooner. It also provides a context as to why it appears Mr Zeyrek did not properly inform Centrelink about how many hours he was working or why he did not declare his true income to the ATO in his tax returns.
691 However, while Mr Zeyrek by his conduct, may not have objected to being paid a flat hourly rate of $20 per hour in cash while he was working at Newroz, it does not provide a lawful excuse for the respondents’ failure to pay penalty, overtime and other rates as they applied under the Award or to keep and maintain employment records.
Vulnerable worker
692 In this matter, I accept that regardless of how close he may at one time have been to the Karakuyu family, Mr Zeyrek was still vulnerable. He had limited English, and as a result, fewer employment options. Also relevant is that Mr Zeyrek was in Australia on a refugee protection visa. Each of these attributes placed him in a position where he was in an unequal bargaining relationship with his employer that was open to abuse.
693 For this reason, I have difficulty in accepting that Mr Zeyrek was in a position to demand he not be placed on the books and only be paid in cash so he could mislead either Centrelink or the ATO on the true state of his earnings. I am also not prepared to find that he similarly refused to be paid by EFT for the same reason.
694 If I had found it was Mr Zeyrek who was the principal architect of his employment arrangements with the respondents, I would be accepting the respondents in this matter lacked any real ethical authority or control over the way they managed their staff.
695 In addition, such a finding does not help the respondents as I would still be concluding they were prepared to engage in contravening conduct, even if it was at Mr Zeyrek’s request. The prohibition against contracting out under s 114 of the IR Act (Contracting out from awards etc, prohibited) is absolute and without exception.
696 In this matter, the evidence overwhelmingly establishes that it was the respondents who set the scene for the award and records contraventions that followed. The evidence, in my view, establishes the respondents determined the basis upon which all staff would be hired and paid, including that they would only be paid a flat hourly rate in cash.
697 The practice of paying staff cash in hand at a flat hourly rate and failing keep to employment records was not confined to Mr Zeyrek. It was a practice that was used when Mr Oruc worked at Newroz and I find, continued during Mr Zeyrek’s employment.
Alternative finding on hours worked
698 During the hearing, it became clear even from the respondents’ evidence that Mr Zeyrek worked more than 10.5 hours per week. As the parties made their closing submissions, I invited them to consider whether I could make a finding Mr Zeyrek worked ‘somewhere in between’ 64.5 and 10.5 hours per week
699 While Mr Heathcote conceded the evidence established Mr Zeyrek worked more than 10.5 hours per week, he submitted the hours Mr Zeyrek said he worked were not believable either. He instead argued that I should rely upon the declarations Mr Zeyrek made in his tax returns and the BAS payroll reports and find Mr Zeyrek worked somewhere between 20 and 30 hours per week.
700 In reply, Mr Carroll submitted the underpayment calculations were already based on a number that was both conservative and ‘somewhere in between’. He submitted this was because the underpayment calculations did not include any hours Mr Zeyrek worked beyond the advertised closing time.
701 Mr Carroll submitted that reaching a finding on a number ‘somewhere in between’ would essentially be like throwing a dart at a dartboard.
702 Having considered both parties submissions on this point, I am not persuaded that I could safely conclude Mr Zeyrek worked somewhere between 20 and 30 hours per week. I have formed this view because Mr Zeyrek’s tax returns and the BAS payroll reports do not provide a reliable evidentiary basis upon which I could make findings on the hours of work that Mr Zeyrek performed at Newroz.
Entitlement to Meal Breaks
703 The claimant’s underpayment calculations include a claim to a meal break loading, for meal breaks Mr Zeyrek said he did not receive (meal break loading). The entitlement to meal breaks and the payment of the meal break loading when a meal break cannot be taken, arises under clause 13(1)(b) of the Award (Meal Breaks) which relevantly provides:
Where it is not possible for the employer to grant a meal break on any day, the said meal break shall be treated as time worked and the employee shall be paid at the rate applicable to the employee at the time such meal break is due, plus fifty per cent of the prescribed ordinary hourly rate applying to such employee, until such time as the employee is released for a meal break.
704 This part of the claimant’s award contravention case relies upon Mr Zeyrek’s evidence that although he was given food during a shift, he did not get an uninterrupted meal break as required under clause 13(1). As a result, the claimant alleged the respondents contravened clause 13 of the Award on 140 separate occasions.
705 The respondents addressed the issue of meal breaks in their witnesses’ evidence by claiming Mr Zeyrek did not work enough hours to trigger the entitlement under clause 13 of the Award. I suspect this is why the respondents did not, contrary to the rule in Browne v Dunne directly cross-examine Mr Zeyrek about this matter.
706 On the evidence, it appears entirely plausible there were times when Mr Zeyrek could have had an uninterrupted break. As I have already found, there were two quite defined daily rush periods, with down times in between. Huseyin, in his evidence said there were times when he saw Mr Zeyrek sitting down to have a kebab. It is therefore reasonable to infer there would have been an opportunity between these rush periods to schedule a break.
707 In addition, Mr Oruc gave evidence to the effect that there were times the shop was quiet enough for him to sit outside and eat for a ‘few minutes.’ He said Kahraman did not take issue if he saw him eating when it was quiet. He also said if it was quiet and Kahraman was not in the store, he organised with the staff (which included Mr Zeyrek) to take turns eating. Witness Statement of Yusuf Orcun Oruc, paragraphs [142]  [147].

708 Although Mr Oruc was not working at Newroz during the claim period, there is no evidence the respondents’ approach to taking breaks changed after his departure.
Claim for meal break loading
709 The evidence in support of the claim for meal break loading under cl 13 of the Award in the absence of the reverse onus, was on the margin. Despite this, I have concluded the claimant has established that Mr Zeyrek should have been paid the meal break loading for the following reasons.
710 Firstly, in the absence of any employment records for the claim period, the respondent cannot show that Mr Zeyrek had meal breaks. In this respect, the reverse onus operates in the claimant’s favour. Contrary evidence that Mr Zeyrek had meal breaks as required could only be provided with the first respondent’s witness testimony which I have found to be unreliable.
711 As I have decided to prefer Mr Zeyrek’s evidence, which includes his testimony that he did not have proper breaks, it necessarily follows that I consider Mr Zeyrek was both entitled to be paid the applicable loading under clause 13(1)(b) when he did not get those meal breaks.
712 Secondly, because Mr Zeyrek was not, contrary to the rule in Browne v Dunne, directly challenged about his evidence that he did not take any meal breaks, his testimony on this point is to be accepted.
713 Thirdly, the evidence from Mr Oruc that I have referred to was qualified in that he said he was only permitted to stop and eat if the shop was quiet. He stated that if the shop was busy and Kahraman was there, he was required to work. Witness Statement of Yusuf Orcun Oruc, paragraphs [142] and [145].

714 Having found Mr Zeyrek did not receive the meal breaks that he was entitled to receive, the inclusion of the meal break loading in the underpayment calculations, is in my view, warranted. I therefore find the respondents contravened the requirement under clause 13(1)(b) the Award to pay the meal break loading 140 times.
Protective clothing allowance
715 Clause 27 of the Award (Protective Clothing) requires an employer to pay an allowance of $3.90 per fortnight to employees who may be required to wash dishes or to use various cleaning agents and detergents where the employer does not provide rubber gloves (protective clothing allowance).
716 The claimant included a claim for the payment of the protective clothing allowance in the underpayment calculations. In doing so, it was alleged that Mr Zeyrek was entitled to receive payment for this allowance, each fortnight he worked, because he washed dishes and performed cleaning duties that required him to wear rubber gloves, which the employer did not provide.
717 The claimant alleged that, by failing pay Mr Zeyrek the protective clothing allowance, the respondents, during the claim period, contravened the Award on 70 separate occasions in the amount of $273.
718 In cross-examination, Hasan maintained that Mr Zeyrek did not perform any cleaning duties. While he said gloves were provided for cooking and to handle food, he said gloves for dishwashing and cleaning were not provided because they did not wash dishes at Newroz, and this work was performed by an external contractor.
719 The testimony from Hasan I noted in preceding paragraph, was inconsistent with Nilufer’s evidence. As I have preferred Mr Zeyrek’s evidence that he performed these tasks ahead of Hasan’s and noting the inconsistency with Nilufer’s evidence on this point, I find these contraventions proved.
Uniforms
720 There was no dispute the respondents provided Mr Zeyrek with a special uniform to wear to work in the form of coloured Newroz T-shirts that he washed at home. The claimant alleged that because the respondents did not launder these items, Mr Zeyrek was entitled to be paid the $7.20 fortnightly laundry allowance that applies under clause 26 of the Award.
721 On this basis, the claimant alleged the respondents contravened the Award on 70 separate occasions during the claim period by failing to pay this allowance. The total amount claimed on Mr Zeyrek’s behalf was the sum of $504.
722 This part of the claimant’s case did not face any challenge. As there was no contest the respondents supplied Mr Zeyrek with a special unform that he had to wash, I find these contraventions proved. I also note that even if I had decided Mr Zeyrek had worked fewer hours, this allowance would still have been payable.
Rate paid was not sufficient to comply with the Award
723 On the evidence, while Mr Zeyrek was paid a daily, as well as a halfday rate, which the claimant applied when she made the underpayment calculations, there is no dispute he was paid $20 per hour for each hour worked and that he was paid in cash.
724 It was not in issue that in the event of a finding the Award applied then the rate of pay Mr Zeyrek received for each hour worked was not sufficient to comply with the requirements under the Award to pay overtime, penalty rates and the like. As the comparative wages table shows, outside of ordinary hours between Monday – Friday in 2016 and 2017, the payment of $20 per hour would not have been enough to discharge the respondents’ obligations under the Award.
725 To this end, the respondents’ counsel quite correctly did not take issue with the claimant’s underpayment calculations, which represent the difference in the wages Mr Zeyrek was paid and what he should have received under the Award if I found the claimant had proved Mr Zeyrek worked the hours he said he did.
726 As I have held the Award applies and noting the findings I have made, regarding the hours Mr Zeyrek worked, I also find the respondents have engaged in the Award contraventions which the claimant has particularised in the underpayment calculations. On this basis, I am prepared to make an order for the total amount of $102,483.74 which the claimant has alleged Mr Zeyrek was underpaid during the claim period, as set out in the claimant’s particulars of claim and the underpayment calculations.
Declarations to Centrelink
727 Earlier, I observed that it appears Mr Zeyrek in his dealings with Centrelink during the claim period understated the number of hours he worked at Newroz and the income he received.
728 During his closing submissions Mr Carroll indicated that Mr Zeyrek is aware that even if I make orders requiring the respondents to pay him the amount by which the claimant says he was underpaid, he acknowledges that he may be required to make a repayment to Centrelink.
729 The issue of whether Mr Zeyrek was entitled to receive Centrelink benefits while he was working at Newroz is outside my jurisdiction. As a matter of public interest, it is something I am obliged to report. That said, by failing to keep accurate employment records the respondents, whether consciously or otherwise, have enabled a situation where Mr Zeyrek could understate his earnings and the hours he worked.
730 To ensure this matter is properly reviewed and considered in context I will arrange for a copy of my reasons to be sent to Centrelink.
Information to be provided to the ATO
731 Similarly, there is no dispute the tax returns Mr Zeyrek submitted to the ATO during the claim period are inaccurate. However, there is a difference between the inaccuracies in Mr Zeyrek’s tax returns and the representations he made to Centrelink. This is because the respondents and their accountants were more directly involved in the preparation of these documents and the information that was contained in Mr Zeyrek’s tax returns.
732 In addition to the issue I have highlighted, regarding Mr Zeyrek’s tax returns, the evidence suggests the respondents have not made any superannuation contributions on Mr Zeyrek’s behalf.
733 While allegations involving the non-payment of superannuation contributions and the accuracy of Mr Zeyrek’s tax returns are matters within the ATO’s remit, evidence of this conduct is not something I can ignore.
734 It is my view these matters are, as matters of public interest, of sufficient gravity to warrant my reasons being sent to the ATO for further investigation.
Proof of the allegations if the reverse onus does not apply
735 In his closing submissions, Mr Carroll submitted that even if I was not satisfied the reverse onus applies, and the onus of proving the award contraventions falls to the claimant, there is sufficient evidence for me to be satisfied the claimant has on the balance of probabilities, proved the award contraventions.
736 I accept that in some matters where an employer has not kept employee records that it may be more difficult to prove underpayment of wages allegations. In such cases, proof of the allegations will to a much greater extent, rely on direct testimony from witnesses.
737 In this matter, the claimant produced evidence to corroborate Mr Zeyrek’s account. Mr Zeyrek’s evidence of his weekly earnings was partially corroborated by the regular deposits that were made to Ms Azbay’s bank account.
738 There were also text messages and photographs that show Mr Zeyrek was at work at the times he said he was. Ms Azbay’s evidence that she visited him at Newroz while he was working, supports Mr Zeyrek’s account, as do the times at which Ms Azbay said he arrived home wearing stained shirts and smelling of food from the kebab shop.
739 More importantly, the respondents’ failure to keep employment records has significance on another level. It is not, in my view, a huge leap to find that because the respondents failed to comply with important statutory requirements to keep employment records, it is likely that they would have also engaged in the breaches of the Award the claimant alleged.
740 It is trite that an employer who underpays an employee in breach of an award, will obtain an unlawful windfall. It is also trite that an employer who makes it difficult for an employee to prove any alleged non-compliance by failing to keep or properly maintain employment records is engaged in the same or similar conduct.
741 It is my view the respondents’ failure to keep and maintain accurate employment records is an entrenched business practice. This practice, as Nilufer’s evidence confirmed, commenced when Kahraman was involved in Newroz to a much greater extent. In my view, the evidence establishes this practice has continued on Hasan’s watch.
742 In forming a view Mr Zeyrek could not discharge the onus of proving that he was underpaid because he was unable to produce an independent diary of his working hours and the like, I would be allowing the respondents to prosper from an unlawful practice.
743 There is no doubt the respondents relied upon the absence of employment records to dispute liability in Mr Oruc’s workers’ compensation claim by denying that he was an employee at Newroz. In the present case, the respondents have similarly relied upon the absence of employment records to dispute that Mr Zeyrek worked the hours he said he did.
744 In other words, I accept that because of the respondents’ failure to keep employment records as required, they have put themselves into a position where they could argue there was no evidence Mr Zeyrek received what he said he was paid or worked the hours he said he did.
745 The respondents’ conduct in this regard is relevant to considering whether the evidence, even without the reverse onus, is sufficient to discharge the usual onus to prove the award contraventions, on the balance of probabilities.
746 While I have concluded the reverse onus applies and the respondents were unable to prove on the balance of probabilities that they did not engage in the award contraventions alleged, it is my view that with the exception of the claim for a meal break loading, a shift in the onus of proof would not likely change the outcome.
747 The evidence the claimant has provided in support of the case against the respondents is comprehensive and, in my view, with the one potential exception I have referred to, sufficient to prove on the balance of probabilities the respondents engaged in the conduct alleged.
Conclusion
748 For all the reasons set out in the preceding paragraphs I have concluded the respondents have engaged in the contraventions alleged.
749 These contraventions include the records contraventions, which involve 738 separate breaches of the requirements to keep employment records under s 49D(2) of the IR Act.
750 It includes the award contraventions comprising of 513 breaches of the Award that occurred during the claim period, as described in the claimant’s particulars of claim and in the underpayment calculations.
751 I also consider the respondents have breached clause 32 of the Award (Employment Records) by failing to keep employment records.
752 As a result of the award contraventions, I have found the respondents underpaid Mr Zeyrek in the manner alleged and by the amounts set out, in the claimant’s particulars of claim and the underpayment calculations.
753 I have concluded the claimant has proved the total amount by which Mr Zeyrek was underpaid during the claim period was the gross sum of $102,483.74 (underpayment amount).
754 Having reached this decision, I will make an order that Mr Zeyrek be paid the underpayment amount. In addition to making this order, I intend to hear from the parties on the following matters:
(a) the timeframe in which the respondents will be required to pay the underpayment amount;
(b) whether I should make an order requiring the respondents to pay interest on the underpayment amount and the quantum of any pre-judgment interest to be paid;
(c) whether and on what basis I should make an order for the payment of the claimant’s disbursements; and
(d) The penalties the Court should impose for both the award and the records contraventions the respondents have committed.



T. KUCERA
INDUSTRIAL MAGISTRATE