Industrial Relations Commission of New South Wales CITATION: Khalil Mayelikohan v Rez Ashrafpour [2006] NSWIRComm 232 APPLICANT: Khalil Mayelikohan PARTIES: RESPONDENT: Rez Ashrafpour FILE NUMBER(S): IRC 982 of 2004 CORAM: Staunton J CATCHWORDS: Unfair contract alleged - application for relief relating to contract of employment - no appearance by respondent despite service and reply to summons filed - matter dealt with ex parte - date of commencement of employment contract determined - satisfied no monies paid to applicant pursuant to contract of employment - respondent wrongfully offset monies owed for wages against other alleged loans/debts as between the parties - Chapter 2 Part 10 of the Industrial Relations Act 1996 relevant - contract relevantly unfair - contract varied ab initio relying on Joiners (State) Award as benchmark - money order made in favour of applicant as to wages, superannuation, overtime and severance pay - orders as to interest and costs. LEGISLATION CITED: Industrial Relations Act 1996 Supreme Court Act 1970 HEARING DATES: 03/07/2006 DATE OF JUDGMENT: 07/18/2006 APPLICANT: Mr R deMeyrick of counsel SOLICITORS: LEGAL REPRESENTATIVES: CBD Law RESPONDENT: No appearance JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Staunton J DATE: 18/7/2006 Matter No IRC 982 of 2004 Khalil Mayelikohan v Rez Ashrafpour Application for relief pursuant to s 106 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 232 1 The applicant, who is approximately 52 years old, is an Iranian national who came to Australia in early 2002. A short time after his arrival the applicant says he started working for the respondent. The applicant's claim for relief is based on two specific areas in which he says he performed work for the respondent pursuant to an agreement as to the rate to be paid based on an eight hour working day. 2 The first area identified is work undertaken by the applicant at the respondent's home and an investment property owned by the respondent. The second area identified is work undertaken by the applicant in the respondent's business. 3 At the relevant time, the respondent operated a business at West Gosford which, it would appear, was a relatively small factory making and/or assembling kitchen cabinets and the like. The respondent traded under the name Rez Kitchens and Shop Fittings. At best as can be ascertained, the respondent is no longer trading. 4 The applicant said that, overall, his employment with the respondent covering both areas of work spanned the period from about 18 June 2002 until mid March 2003. Along with other factual assertions by the applicant, that is a matter in dispute. I will return to those matters in due course. 5 The applicant asserts that while so employed by the respondent, he was engaged to undertake a variety of tasks. In relation to the respondent's house and investment property, the applicant said he was engaged to undertake a wide range of home maintenance and home improvement tasks. In the respondents business, he did tasks such as delivering cabinets, shifting cabinets and other heavy manual labour. 6 The applicant asserts that prior to commencing work for the respondent in June 2002, the wage agreed upon with the respondent would be '$90 per day after expenses for an eight hour working day'. The applicant also pleaded that he 'invariably worked longer than eight hours per day'. 7 In the reply filed on his behalf, the respondent pleaded that the applicant was only employed from 28 October 2002 until 15 March 2003 in the respondent's business. The respondent denied the applicant undertook any house maintenance and improvement work as alleged. As well, the respondent pleaded the applicant's wage was $414.00 gross ($350 net) on the basis of an eight hour day. 8 Underpinning the applicant's claim for relief on the basis of contractual unfairness is his evidence that, during the entire period of his employment with the respondent, he received no wages and no superannuation payments were made on his behalf. He said the respondent withheld his wages in satisfaction of debts said to have been incurred by the applicant as a result of certain loan and purchase transactions involving the applicant and the respondent that I will shortly detail. 9 In mid March 2003, the applicant's employment was terminated without warning on the basis there 'was no more work available' and he was given two weeks pay upon termination. That payment was said by the respondent to have been reduced because of certain debts said to have been incurred by the applicant to the respondent. In reply, the respondent pleaded, in addition to having no more work, the applicant's work performance was poor. 10 Relying on the above employment history, the applicant asserts that the contract of employment between the applicant and the respondent was unfair within the meaning of s 105 of the Industrial Relations Act 1996 (the Act). Further, the applicant seeks an order declaring the contract was or became unfair pursuant to s 106 of the Act because of the conduct of the respondent. As a consequence, the applicant seeks an order varying the contract ab initio or from some other time, to include the following terms: (a) Termination of the employment shall not be harsh, unjust, unfair, unreasonable or unconscionable, whether it is with or without notice. (b) Upon termination of the Contract of employment for any reason (other than serious and wilful misconduct) the employer shall give the employee twelve (12) months notice of termination, or make payment in lieu thereof. (c) The employment shall not be terminated by the employer by way of retrenchment for economic, technical or structural reasons, unless the employer provides to the employee: (i) An opportunity, as early as possible, for consultation on measures to be taken to avert the termination and/or mitigate the adverse effects of any termination; (ii) Retrenchment benefits and redundancy pay, commensurate with the employee's position, tenure, age and re-employment prospects as follows: (1) Six (6) weeks pay for each year of service of part thereof with the employer; (2) Outplacement services for a period of six (6) months; (3) Financial counselling; and (4) An employment reference or statement of employment. (d) All wages shall be paid in full to the employee, without deduction other than required by law. (e) The employer will pay the employee in accordance with minimum rates and conditions applicable under the Joinders (State) Award, or other applicable award, unless that minimum rate and conditions of pay are less than what has been otherwise agreed between the parties. (f) Without limiting the above, the employer will not require the employee to work overtime without paying remuneration for the same. (g) The employer shall not garnish or deduct any alleged debts owed to the employer from the employee's wages. (h) The employer will not make demand for, or hold the employee liable for any debt incurred by way of expenses or otherwise associated with employment, other than such that are fair and reasonable, and have been specifically agreed prior to the commencement of employment. (i) The employer will not make demand for, or hold the employee liable for any debt incurred, associated with employment, other than such that are fair and reasonable, and have been specifically agreed prior to the commencement of employment. (j) The employer will not take advantage of the relative inequality of bargaining power between himself and the employee to procure any financial or other benefit for himself. (k) The employer will not engage the employee in such a way as to avoid paying any superannuation contributions for the employee. 11 Relying on the above, the applicant seeks a money order together with interest and costs. Matter dealt with ex parte 12 This matter has been heard and determined in the absence of the respondent. 13 There is no doubt the respondent has been properly served. When the applicant filed his initial summons for relief on 26 February 2004, the respondent was served. A notice of appearance on his behalf was entered by solicitors Risworth Dodd and Co on 5 April 2004. 14 On 17 June 2004, a Reply to the applicant's summons for relief was filed on behalf of the respondent by his above-named solicitors together with an affidavit sworn by Mr Ashrafpour that the allegations made in the reply were true. 15 On 16 December 2004, the respondent and his solicitor, together with the applicant and his legal representative, participated in a conciliation conference with Deputy President Sams in an attempt to settle this matter. That conference was unsuccessful. Accordingly, the matter was allocated by the President to Marks J for case management in preparation for hearing. 16 On 27 June 2005, pursuant to leave granted and orders made by Marks J, an amended summons for relief was filed. That was done following brief proceedings before his Honour on 23 June 2005 pursuant to a Notice of Motion filed by the applicant seeking leave to amend the summons. The respondent was represented at that hearing. 17 On 26 October 2005, the respondent's solicitors filed a Notice of Ceasing to Act. In doing so, as required, the respondent's last known residential address was notified to the Court. 18 This matter was allocated to me in the first instance on 3 May 2006. In listing this matter on 10 May and 23 May 2006 for mention and directions, the Court has taken steps to notify the respondent by registered mail of the intended hearing of this matter. That registered mail was sent to the respondent's last known residential address as notified by his former solicitors as well as the last known address of his business, Rez Kitchens & Shop Fittings in West Gosford. 19 The registered mail sent to the respondent's business address was returned denoted 'Left address/unknown'. Registered mail sent to his last known residential address was returned denoted 'unclaimed'. 20 Despite all of the above, there has been no appearance before me by or on behalf of the respondent. I am, however, satisfied that all reasonable steps have been taken to notify the respondent of the hearing of this matter and that, in the circumstances, I can proceed to hear and determine it in his absence. 21 That brings me to the reply that was filed on behalf of the respondent on 17 June 2004. Although there was amended summons filed in June 2005, it was essentially the same contract sought to be impugned in the initial summons and basically the same allegations of unfairness although of some greater particularity were pleaded in the amended summons. Accordingly, no further reply was apparently considered necessary and therefore the reply filed in June 2004 would still be relevant. Given the absence of the respondent however, any weight to be attached to the factual assertions in that reply must be minimal given they are untested. 22 As is evident, there are significant factual differences between the parties. In relation to those differences, the applicant gave sworn evidence before me via an interpreter affirming the truth of his recollection as to certain facts in dispute. In relation to relevant disputed facts such as the period of employment, the applicant adhered to his evidence on this issue notwithstanding his attention being drawn to the respondent's assertion in the reply filed on his behalf. 23 In all the circumstances, I am satisfied that, where relevant, I can rely on the affidavit and oral evidence of the applicant as establishing those facts necessary to determine this matter. 24 In addition to the formal pleadings of initiating summons, response and reply to response filed by the parties, the applicant filed an affidavit with annexures sworn on 20 May 2005. As well, relevant extracts of the Joiners (State) Award were tendered on behalf of the applicant. Those extracts covered the employment period with the respondent and the asserted relevant weekly rate of a Group 4 employee as broadbanded for the purposes of monetary rates payable under Part B of that Award. 25 Given the nature of the work undertaken as described by the applicant, I am satisfied the Joiners (State) Award is the relevant award applicable to any determination of a money order due to the applicant arising from a finding of unfairness in his contract with the respondent. 26 Relying on wage and allowance rates drawn from the gazetted Joiners (State) Award and operating from the first pay period commencing on or after 10 July 2002, the applicant's solicitors have submitted a schedule of payments detailing what is claimed in monetary compensation on behalf of the applicant. I will return to that in more detail later in this judgment. 27 The applicant's English is poor and he gave evidence through a Persian interpreter. As well, prior to filing, in affirming his affidavit evidence, that was done via an accredited Persian interpreter. Relevant factual circumstances and considerations 28 When the applicant arrived in Australia in the early part of 2002, he resided briefly in Sydney. It was his intention to secure work and have his wife and children join him. At that time, and even now, his English language skills were poor and he had difficulty finding work. His prior employment in Iran for approximately twenty seven years was as a Customs Officer. 29 Following his arrival in Australia, the applicant was in receipt of Centrelink payments. He eventually met an Iranian businessman, Mr Aziz Forghani in a restaurant. Mr Forghani spoke Iranian and the applicant told him of his desire to find employment. It would seem that Mr Forghani was able to assist in that the applicant secured some work with Mr Forghani for approximately two to three weeks. 30 Subsequently, Mr Forghani took the applicant to Gosford and introduced him to the respondent as a person from the Iranian community who would be able to provide him with work. According to the applicant, that was in early June 2002. 31 The respondent was able to offer work to the applicant and accordingly, the applicant shifted to Gosford and was given initial accommodation in the respondent's workshop. At the respondent's invitation, he subsequently moved into a room in the respondent's home. Discussions with the respondent at that time led to the applicant commencing work. The initial work consisted of home maintenance and improvement work at the respondent's home and later at a property the respondent owned at Narara. 32 It is said by the applicant, and I accept it, that prior to commencing any work with the respondent, agreement was reached between him and the respondent that he would be paid for his work at the respondent's properties at the rate of $90 per day after expenses for an eight hour working day. 33 In the reply filed, the respondent denied the applicant did any house maintenance or domestic assistance work on or related to the above properties. 34 As well, there is dispute between the parties as to the date the applicant commenced work for the respondent. The applicant asserts it was mid June 2002 whereas in his reply the respondent pleaded that the applicant was employed from 25 October 2002 to 15 March 2003. That factual dispute was pressed with the applicant in his sworn evidence before me. He reaffirmed his employment commencement date as being on or about 18 June 2002. 35 I accept the applicant's evidence on this issue. In addition to his sworn evidence there is relevant documentation attached to his affidavit, specifically annexures C and D. In order to understand the contents of those two documents, they are annexed to this judgment. The difference between the two pages is apparent on closer examination in that annexure D has additional entries on it, particularly towards the bottom right-hand corner of the page. At this point, it is relevant to say that the writing on both pages are said by the applicant to be that of the respondent with the exception of the almost indecipherable entry entirely in Persian in the bottom right-hand corner of annexure D. The applicant confirmed that was his handwriting. 36 As I understand it, annexure C was written by the respondent in January 2003 when there was ongoing argument between he and the applicant arising from the applicant's increasingly vocal demands that he be paid for the work he had been, and was, doing for the respondent. 37 Annexure C represents, it would seem, a reconciliation statement of sorts in which the respondent denoted wages earned by the applicant offset against monies said to be owed by the applicant to the respondent for debts/loans incurred as well as vice versa. Annexure D is the same document with additional entries which was added to in March 2003 when the applicant was terminated, denoting further asserted financial reconciliation matters between the parties. Those matters will be further detailed in this judgment. 38 Apart from any other considerations, the entry in the top left-hand corner of both annexures states $12,150 = $90 x 135 followed by the date 4/11/02. That entry, as explained by the applicant, is reference to wages owed to the applicant up to 4 November 2002, being 135 days at $90 per day - the total being $12,150. That entry is relied upon to support the applicant's evidence that he commenced work in June 2002 and not 25 October 2002 as pleaded by the respondent. 39 Apart from that entry, there is no other documentary evidence to support the applicant's claim that he commenced work for the respondent in June 2002. 40 Certainly, the meaning of the above entry in the annexures referred to and explained by the applicant above, would indicate a period of months prior to 28 October 2002 as being an employment period that would accord approximately with an employment period commencing on or about 18 June 2002 up to and including 4 November 2002. 41 It may well be that in asserting the applicant did not commence employment until 25 October 2002, the respondent is referring to the work undertaken by the applicant in the respondent's cabinet making business. As earlier indicated, the applicant described the work he undertook for the respondent as essentially being in two parts. That is, initially, the work undertaken by the applicant on the respondent's home and an investment property owned by the respondent at Narara. That work, the applicant said, commenced in June 2002. The work on those two properties comprised improvement and maintenance work and, according to the applicant, included work in relation to erecting fences, stables, retaining walls, painting, garden maintenance work, removing carpeting, replacing and polishing floorboards and general household duties. Similar type of work was done at the respondent's investment property. 42 On the basis of the evidence before me, I accept the applicant did perform the home maintenance and improvement work at the respondent's properties and that he commenced such work on or about 18 June 2002. 43 Further, I am satisfied that at the time he commenced that work, there was an agreement between the applicant and the respondent that the applicant would be paid $90 per day after expenses for an eight hour day. 44 It would seem that it was not until some time in October 2002 that the applicant commenced working at the respondent's cabinet making business in West Gosford. What is not in dispute is that the applicant worked in the respondent's business until 15 March 2003. 45 It is the applicant's case that the rate of pay initially agreed between the parties in June 2002 was at all times the rate of pay applicable for the work he undertook for the respondent in his business. The respondent pleaded the applicant's wage was $414.00 gross ($350 net) on the basis of an eight hour day. As well, he pleaded that the terms of the contract of employment as between he and the applicant, in addition to the above rate, were: (a) the arrangement was that if the applicant's work performance increased then his pay would increase. (b) the applicant was unskilled and would be taught on the job to build cabinets. The role of the applicant was to assemble rather than make the cabinets. He was directed by other employees. (c) If there was no work then the respondent would terminate the applicant's employment on two weeks notice. (d) a further term of the contract was that if the applicant was not good at his work then he would get two weeks notice. 46 During the entire period he worked for the respondent, the applicant says he received no wages from the respondent and no superannuation was paid on his behalf. For reasons I will shortly elaborate, I accept that to be the case. 47 Given that fact alone, it is surprising to contemplate that the applicant would continue to work for the respondent for as long as he did. That statement has to be considered against the background of the applicant and the circumstances in which he found himself. In other words, the applicant was newly arrived in Australia, facing an uncertain future as to employment prospects and consequent security. His English language skills were, and still are, poor. As he perceived it, he was able to find support and assistance within the Iranian community. That led to him being given a job and accommodation by the respondent in Gosford. Not surprisingly, the applicant felt grateful and somewhat beholden to the respondent. 48 Part of gratitude that the applicant felt towards the respondent is demonstrated by the fact that the applicant says he lent the respondent an amount of money from his own savings in order to assist the respondent from time to time. It must be said, however, that that fact is denied by the respondent in his pleadings. On that issue, in the amended summons for relief filed on 27 June 2005, the applicant pleaded, inter alia, that the respondent procured certain cash payments from the applicant in satisfaction of debts said to have been incurred as a result of certain loan and purchase transactions involving the applicant and the respondent. In specific response to that pleading, the respondent denied that. 49 As later and more detailed reference to annexures A, B, C and D of the applicant's affidavit reveals, there is evidence in the respondent's handwriting and otherwise that strongly infers that there were cash payments made by the applicant to the respondent on a personal basis as well as amounts said to be owed to the respondent as a result of a home purchase by the applicant. That leads me to the circumstances that arose as between the applicant and the respondent in relation to the purchase of a house by the applicant that impacts on the contractual unfairness alleged. Like other matters in these proceedings, there is dispute between the parties. 50 The applicant says, in or about early July 2002, the respondent raised with him that he, the applicant, should purchase a house from the respondent at Brady's Gully Road, North Gosford and the respondent would arrange a loan for him to do that. The applicant stated that the respondent was quite insistent as to this purchase notwithstanding the applicant's unwillingness to enter into such a transaction at that time. He stated that by way of encouragement, the respondent reassured him that he would have a job for 'life' with the respondent and that his salary would 'reach $3000 per month'. 51 Ultimately, the applicant was persuaded by the respondent, he said, to press ahead with the transaction on the basis that the respondent was very insistent that he do so and, as he explained: I felt uneasy about this but did not argue because I needed the job with Reza, and did not want to upset him. I also drew some comfort from Reza's repeated assurances that buying the house would help with the application to bring my family to Australia. 52 That may or may not be the position. The respondent pleaded it was the applicant's request to the respondent that he purchase the respondent's house at Brady's Gully Road at North Gosford that triggered the transaction. 53 Whatever is the true position as between the parties, it is clear that the applicant did purchase the property. It would appear, with the assistance of the respondent, mortgage finance was obtained for him with Chatswood Home Loans and Finance on or about 17 July 2002. Annexure B to the applicant's affidavit is a facsimile coversheet on the head paper of the respondent's business, Rez Kitchens, sent by the respondent to Chatswood Home Loans and Finance dated 18 July 2002. As well, annexure A is a facsimile copy of home loan documents from Chatswood Home Loans and Finance dated 17 July 2002, addressed in the first instance to the respondent, in relation to the mortgage the applicant was taking out with Chatswood Home Loans and Finance in relation to the property at Brady's Gully Road, North Gosford. 54 Given the above, the respondent certainly had a significant role to play in securing the home mortgage for the applicant to enable him to purchase the respondent's property. According to the applicant, to the best of his recollection, at no time were any of the mortgage documents he signed relating to the purchase of the home ever explained to him in his native language. 55 At the time of purchase of the property, the house was tenanted for some $200 per week but the applicant was having to meet additional mortgage payments from his own savings. 56 As best as I am able to determine, the purchase of the property by the applicant was completed in or about 12 September 2002. According to the applicant, it is his understanding he has been the registered owner of the property since that date. 57 During and following the time of the home purchase, the applicant continued to work for the respondent but he never received any wages for the work he undertook. He was also continuing to reside with the respondent and his wife. The applicant described the situation thus: [44] Throughout the time I was living with and working for Reza, I had expected to be paid $90.00 per day. I worked full time for Reza during that period, and usually worked a lot more than the 8 hours per day originally discussed. However, throughout my time with Reza, I never received any wages. When I inquired about my wages, he would say: "I'll deduct your wages off what you already owe me for the house." I was not happy about this, but I went along with it as I felt that in the long term, I would have wages coming in, and I was desperate to establish myself with a stable job to assist with immigration issues for my wife and children. [45] I also inquired about the money I lent him at the outset for his wedding. Again he would say: "I'll deduct it from what you owe me for the house purchase". 58 The applicant's financial position became increasingly precarious. The property he had purchased was still tenanted but the loan repayments were considerably more. The applicant was using up his savings and receiving no wages. Discussions with the respondent as to his entitlement to be paid were, he said, met by the response that the applicant still had not paid all the money he owed to the respondent relating to the purchase of the house by the applicant. 59 From late December 2002 until March 2003, the situation between the applicant and the respondent became increasingly tense and fractious essentially over the applicant's demand that he be paid wages and the respondent's reply that there was still money owed to him by the applicant in relation to the house purchase. In January 2003, the respondent set out in his handwriting the state of play in relation to the finances between the applicant and the respondent. That document is annexure C. Subsequently, when the applicant was terminated in March 2003, the respondent added further calculations to that sheet of paper taking into account additional work done since January 2003 as well as termination payments made arriving at a final figure representing monies owed as between the parties. The relevance and interpretation of those two documents are explained by the applicant in his affidavit as follows: [60] The figures in the top left hand corner of annexure "C" which add up to $27,350.00 are Reza's calculations of what he owed me up to 4 November 2002. They include: $12,150 for 135 days work at $90.00 per day; $6,600 for being the amount loaned at the outset to assist with the wedding; $5,000 which I understand was an amount paid for me under the first home buyers grant scheme; Various smaller amounts which I paid to Reza at his request on various occasions associated with the purchase of the home. [61] The figures in the bottom left hand portion of annexure "C" are Reza's calculations of what he owed me for the period 4/11/02 to 30/01/03. They include 59 days unpaid wages at $90 per day totalling $5,310, from which he has deducted the various payments of "spending money" previously referred to, made to me in December 2002 and January 2003 (totalling $1,965), leaving a balance owed to me for that period of $3,345.00. [62] The figures in the top right hand corner of annexure "C", totalling $31,585.00 are Reza's calculations of what I owed him. They include the balance of the deposit for the home (after deducting the first home buyer's grant of $5,000) being $20,000, together with stamp duty and legal fees ($11,585), totalling $31,585.00. [63] The figures in the bottom right hand corner of annexure "C" represent the ultimate reconciliation of all the calculations on that page. It is suggested that as at 30 January 2003, the ultimate balance is I owed Reza $890.00, and then we would be square. [64] I was given a copy of annexure "C" at or about 30 January 2003, after Reza sat down with me and wrote out the figures. This was prompted by my continuing requests for wages. [65] Annexed hereto and marked with the letter "D" is a further copy of the said document, this time with further calculations upon it which were added by Reza to explain my payment on termination. [66] The figures in the bottom right hand corner note a further entitlement to wages of $1,800 for 20 days work, less the previous amount of $890 said to be outstanding, and certain other amounts. [67] I was ultimately paid $420 on termination. 60 I accept the applicant's evidence that the handwriting on those two documents, with the small exception of the entry on annexure D I have already identified, is the respondents. Accordingly, I am satisfied that there was, on the part of the respondent, an approach whereby the respondent acknowledged that money was owed by him to the applicant for work performed but that he offset the money owed against monies the applicant owed the respondent in relation to the purchase of the property. All in all, when ultimately calculated in March 2003, taking into account two weeks pay on termination, there was a sum of some $420 paid to the applicant by the respondent. 61 Notwithstanding what did occur between the applicant and the respondent in relation to monies lent as well as mortgage transactions in relation to a house purchase, the obligation of the respondent to pay the applicant for the work he performed is very clear. Chapter 2 Part 10 of the Industrial Relations Act 1996 is relevant to this issue. The applicant was entitled to be paid in money and in full for the work that he performed for the respondent: see ss 117 and 118 of the Act. Further, s 119 provides that the respondent is not able to impose, directly or indirectly, any condition as to how the remuneration paid is to be spent. Finally, in relation to any proceedings against an employer for an amount due as remuneration, s 120 prohibits any set off or action for goods or services supplied by an employer. 62 Applying those provisions to the circumstances prevailing as between the applicant and the respondent in these proceedings, the respondent was not entitled to set off against remuneration owed to the applicant any monies allegedly owed by the applicant in relation to the home mortgage or otherwise. 63 In other words, while it would appear that the applicant did owe some monies to the respondent relating to the purchase of the property, the respondent was not entitled to deduct any of those amounts from the wages that were due and payable to the applicant. Amounts owing as between the parties were a matter for separate reconciliation and agreement once the applicant had been paid for the work he performed. 64 In my view, if I am satisfied as to contractual unfairness, it is not appropriate in these proceedings to take such amounts into account in relation to any money order I may be inclined to make. More importantly, with the exception of annexures C and D, with all the manifest problems of uncertainty those documents represent, there is no evidence from the applicant or the respondent that would permit me to come to any proper conclusions as to the ultimate state of financial indebtedness or otherwise between the parties arising from transactions outside the employment relationship. 65 According to the applicant, he was terminated by the respondent in abrupt circumstances. He stated the respondent simply told him he no longer had any work for him. The respondent pleaded, in accordance with the terms of the contract, he terminated the applicant's employment and gave him two weeks termination pay from which certain monies were deducted as money still owing to the respondent. 66 The respondent does not plead any reason for the applicant's termination except to separately plead that he had had occasion to warn the applicant as to his general work performance. The applicant asserts otherwise. 67 According to the applicant, the circumstances of his termination led to further acrimony between he and the respondent. 68 On behalf of the applicant, it was submitted that the contract between the applicant and respondent was unfair having regard to every meaning assigned to unfair contract in s 105 sub-clauses (a), (b), (c) and (d). Further, it was said, the conduct of the respondent was exploitative from the start in taking the applicant on as a member of the Iranian community and then having the respondent work full time over the period he did without receiving one dollar in wages. 69 Given the somewhat unusual and personal circumstances that existed between the applicant and the respondent surrounding the employment contract, it is not possible to definitively conclude that the respondent's conduct towards the applicant was deliberately exploitative. Certainly the strong inference is that the respondent took advantage of the applicant at a vulnerable time of his life and in circumstances where the applicant may well have been ignorant of his legal entitlements or unwilling to argue with the respondent more forcefully than he did. As an employer with, as his pleadings suggest, other employees, the respondent knew or ought to have known of his obligations to pay the applicant pursuant to the agreement between them for the work he performed. 70 Given all of the above, I am satisfied that the contract as between the applicant and the respondent was relevantly unfair within the meaning of s 105 of the Act. 71 In asserting the applicant's entitlement by way of money order pursuant to s 106(5), the solicitors for the applicant have pleaded the Joiners (State) Award as being the relevant award for setting a benchmark for the appropriate rate as the basis for any calculations to be made. In citing that Award, they have also cited the rate of pay for an employee classified in Group 4 in the adult wage rates table in Part B, Monetary Rates of the Award. 72 Reference to the Joiners (State) Award and particularly that which appears in New South Wales Industrial Gazette Vol 328 at 1142 identifies the group and skill level descriptions for the seven groups of skill levels relevant to the adult wage rates table in Part B of the Award. Taking into account the applicable skill requirements as set out in clause 9, Rates of Pay of the Award, I am not persuaded the applicant properly meets the definition and skills level description for a Group 4 employee. I say that having regard to the nature of the work the applicant said he was performing, particularly at the respondent's business being, as he described, 'delivering cabinets, shifting cabinets and other heavy manual labour'. To the extent the applicant appears to have done, to some extent, more skilled tasks in the work undertaken at the applicant's properties, I have no evidence to indicate the extent of his precise skills set. That assessment is made against his employment background as a Customs Officer in Iran for 27 years with no evidence as to any formal training in the nature of the work he was performing for the respondent. 73 Doing the best I can, he would be more properly classified in Group 2 of the Skill Level Description in clause 9 of the Award. Group 2 of clause 9 of the Joiners (State) Award is described as follows: Group 2 - Employee - An employee to be classified at this level will have completed the required training or will have equivalent skills gained through work experience in accordance with the prescribed standards for this level. In all cases the employee will be required to satisfactorily complete a competency assessment to enable the employee to perform work within the scope of this level. Employees at this level perform work above and beyond the skills of an employee at Group 1 and, to the level of their skill and training: 1. perform work as directed; 2. exercise limited discretion and utilise basic fault finding skills in the course of their work; 3. work in a safe manner so as not to injure themselves or other employees; 4. understand and undertake basic quality control/assurance procedures, subject to supervision; 5. whilst undertaking structured training perform work within the scope of that training, subject to safety and training requirements. Indicative if the tasks which an employee at this level may perform are the following: repetitive fixing of pre-made components or parts of any article in pre-determined ways, using basic written, spoken and/or diagrammatic instructions; repetition work on automatic, semi-automatic or single purpose machines or equipment; use selected hand tools and hand operated power tools; maintains simple records; manual handling skills; uses hand trolleys and pallet trucks; problem solving skills. 74 I have to say, by reference to the description of the skill level required of a Group 4 employee under the same Award, I have difficulty in accepting, all other things being equal, he would have been classified as a Group 4 employee under the Joiners (State) Award. The skill level of a Group 4 employee under the Award is described thus: carries out tasks from basic plans, sketches and drawings in conjunction with appropriate written or verbal instructions; operates materials handling equipment requiring a licence or certificate; sets up and operates and adjusts machinery to produce more detailed components to exact specifications and standards; fixes components or parts in pre-determined ways and is able to undertake simple rectification work to jobs in progress; provides assistance to other employees at this and other skill levels within their level of skill and training; any other tasks as directed in accordance with their level of skill and training; ability to complete simple clerical tasks; ability to select suitable methods for completing tasks and plans the order in which to complete them; keyboard skills at a level higher that that of an employee at Group 3; lubrication of production machinery equipment; problem solving skills. 75 Having regard to all I have referred to and considered, I am satisfied that the agreement as between the applicant and the respondent should be varied ab initio to reflect a rate of pay based on the Joiners (State) Award at the rate applicable for an employee classified as Skill Level 2 as described in clause 9 of the said Award with the accompanying wage rate as set out in Table 1 in Part B, Monetary Rates of the Award. The rates should be the rate applying to Group 2 for the period of the applicant's employment. At the time of the applicant's employment with the respondent, the relevant rate for a Group 2 employee was $448 per week. 76 In addition to that, the applicant is entitled to be paid superannuation in accordance with the rate applying as at 2002 - 2003 which was nine per cent of the applicant's earnings base. There is no evidence the applicant is a member of any complying superannuation fund. In the absence of any such fund, the applicant is entitled to receive the money representing the nine per cent superannuation payments he was entitled to have made on his behalf. 77 The applicant also seeks variation to his agreement with the respondent to reflect an entitlement to overtime. I accept that such variation should occur but I am not so persuaded that in the period claimed by the applicant, that is as between October 2002 and March 2003, a period of some twenty six weeks, that the applicant averaged 7.5 hours of overtime per week. I say that because there is little, if any, evidence over and above the statement of the applicant that he 'invariably worked in excess of eight hours per day'. In all the circumstances, and doing the best I can, it would be my view that the applicant is entitled, for that period, to overtime of five hours per week, based on one hour of overtime per day, using the Group 2 weekly rate as the basis for such calculations. 78 Further, I am not persuaded, notwithstanding the Award provision, that any meal allowance should be inserted into the calculations. I have no evidence to support such a claim and I am mindful that while all these events were unfolding as between the applicant and the respondent, he was residing with the respondent and his wife and, by all accounts, was not only being housed by them but also being fed by them from time to time. Accordingly, in exercising my discretion as to what is fair and just in all the circumstances, I do not see any basis for any claim for a meal allowance by the applicant. 79 Finally, in accordance with clause 36.4 Redundancy, of the Joiners (State) Award the applicant is entitled, as a minimum, to two weeks ordinary pay in lieu of notice. 80 In addition to the above, I also order the respondent pay interest in accordance with the Supreme Court Act 1970 and that he pay the applicant's costs of the proceedings before me as agreed or assessed. In default of agreement, the matter may be referred to the Registrar for assessment. 81 The applicant's solicitors are to file orders in accordance with the decision I have made, including a declaration as to my finding of contractual unfairness, within twenty eight days from the date of judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.