Industrial Magistrates Court of Western Australia

The claimant, a former kitchenhand at King Kong Bar & Restaurant (King Kong) that is operated by Bai Wei Xiang Pty Ltd (respondent), brought a claim to the Industrial Magistrates Court using the small claims procedure under section 548 of the Fair Work Act 2009 (Cth) (FWA).

The claimant contended that he was employed as a casual employee washing dishes and doing other general duties at King Kong and that, by failing to pay him all monies owed for time worked at King Kong, the respondent contravened the FWA. The claimant also claimed that the Restaurant Industry Award 2020 (Award) applied to his employment and the respondent had failed to pay the correct hourly rate. The claimant sought an order under the FWA for the payment of all monies owed for time worked, amounting to $4,360.

The respondent disputed the claim, arguing that the claimant was not an employee but rather an independent contractor who worked at King Kong for a short period during Chinese New Year. The respondent contended that it had paid the claimant for all work done except $2,200 for work done for a 3-week period, which the respondent contended had been withheld as agreed compensation for a broken pot. 

The primary issue to be determined by the Court was the nature of the legal relationship between the claimant and the respondent. If the Court found the claimant was an employee, the further issues to be determined were: did the Award cover the claimant’s employment and was the claimant paid in full for all hours worked. 

The evidence presented to the Court from the claimant included a witness statement, copies of text messages between the claimant and respondent on various occasions, bank statements showing payments made by the respondent, and a handwritten timesheet recording the hours he worked. The claimant denied any conversation about being engaged by the respondent as a contractor and maintained that he was always an employee.

The respondent’s director and manager provided witness statements and oral evidence at trial as well as timesheets showing the claimant’s clock-in and clock-out times, bank statements and text messages. The respondent claimed in the proceedings that the claimant worked flexible hours and was paid per task performed. In considering the terms of the contract between the parties, the Industrial Magistrate identified that “there was no real explanation of how or what [the claimant] is paid per task – that is – is the claimant paid per dish washed, per bench wiped, per square meter of floor swept and how much is [the claimant] paid for these tasks – that is – is he paid $10 to wash 10 plates, $5 per bench wiped?”.

The Court found the claimant’s evidence to be more consistent and credible and found that the claimant’s role, work hours and payment terms were consistent with that of a casual employee of the respondent, not an independent contractor. In finding the employment relationship was that of an employer-employee, the Court determined the respondent is a national system employer and had an obligation under section 323(1)(a) of the FWA to pay the claimant in full for amounts payable for the performance of work. The Court also found that the Award applied to the claimant’s employment as a casual kitchenhand at King Kong and that the respondent had failed to pay the claimant the correct wages as per the applicable award rates under the Award.

The Industrial Magistrate found that “notwithstanding the claimant did not directly express the minimum hourly rate under the Award he says he should have been paid, it is sufficient that he identified the relevant provisions of the Award (as he did in his witness statement) and identified that he had been underpaid by the respondent. The fact that he mistakenly thought he was owed an amount based on $20 per hour, does not change what he was, in fact, owed.”

The Court also addressed the respondent's withholding of $2,200 from the claimant's wages for allegedly breaking a pot. The Court found that the respondent was not lawfully entitled to withhold any wages payable to the claimant unless they did so in compliance with sections 324 or 325 of the FWA, which was not the case here.

Ultimately, the Court ordered the respondent to pay the claimant $10,167.97 in unpaid wages, as required under section 323 of the FWA. The full decision can be read here.

The Australian Workers Union (claimant) brought a claim on behalf of one of its members against Chevron Australia Pty Ltd (respondent). The claimant alleged the respondent should have paid a meal allowance claimed by the affected worker for a lunch on 14 December 2023 while the affected worker was in transit from a work site. The claimant argued that this failure breached:

• clause 16.3(d)(1)(C) of the Chevron Wheatstone Downstream Operations Enterprise Agreement 2023 (Agreement); and
• contravened section 50 and section 323 of the Fair Work Act 2009 (Cth) (FWA).

The claimant sought orders for the underpayment, interest on judgment, and a civil penalty.

There were no factual circumstances in dispute, the primary issue to be determined was the meaning of clause 16.3(d)(1)(C) in the Agreement (meal allowance clause). The claimant argued that the clause entitled the affected worker to the meal allowance because he was required to be accommodated overnight during his journey. The respondent contended that the meal allowance clause did not require payment for lunch on 14 December 2023, as the affected worker was not required to be accommodated on that day.

The Industrial Magistrate was required to examine the meaning and purpose of the meal allowance clause within the context of the whole Agreement while applying the principles relevant to construing industrial agreements. After considering both parties’ interpretations, the Industrial Magistrate concluded that the meal allowance clause only entitles an employee to the allowance when the relevant time of the day (breakfast, lunch, or dinner) coincides with the requirement for overnight accommodation. Since the affected worker did not require overnight accommodation at lunchtime on 14 December 2023, he was not entitled to the meal allowance.

As a result, the Court dismissed the claim, ruling that the respondent did not contravene the Agreement by not paying the meal allowance claim. The decision can be read here.

On 28 January 2025, the Industrial Magistrates Court (Court) ruled that Kahraman and Döne Karakuyu, the respondents who, in partnership, operated Newroz Kebabs and Turkish Bakery (Newroz) underpaid an ex-employee by $102,483.74. In doing so, the Industrial Magistrate ruled that the respondents breached the Restaurant, Tearoom and Catering Workers’ Award (Award) 392 times. The Court also ruled the respondents, by their own admission, breached section 49D(2) of the Industrial Relations Act 1979 (WA) (IR Act) on 738 separate occasions by failing to keep employment records for the affected worker.

The claimant, Ms Jillian Dixon, is an industrial inspector for the Department of Energy, Mines, Industry Regulation and Safety (Department). Ms Dixon started investigating Newroz in March 2022. At the conclusion of her investigation, in December 2022, Ms Dixon commenced proceedings at the Court alleging the respondents:

• failed to keep employment records, contrary to section 49D(s) of the IR Act, and
• failed to pay the affected worker the correct rates of pay and entitlements, contrary to the Award.

As part of her investigation, Ms Dixon issued the respondents with three notices to produce employment records. While some documents were produced, the respondents did not comply with the notices and during proceedings admitted they failed to keep employment records. The claimant alleged that the affected worker worked approximately 64.5 hours a week at Newroz between 2013 to 2020 and each week, he was paid $20 per hour in cash. The respondents denied the affected worker worked the hours alleged, and also denied that the Award applied to the employment relationship.

The Court considered a number of legal and factual disputes arising from the claim. One legal issue considered was whether the reverse onus of proof applied to the claim. While the claimant ordinarily proves their claim on the balance of probabilities, section 83EB of the IR Act, introduced on 22 June 2022, reverses the onus such that, unless they had a reasonable excuse, the respondents were required to positively prove they did not breach the Award if it was found they failed to keep employment records.

The respondents argued they had reasonable excuses for not complying with their obligation to keep employment records. They argued that they had delegated the day-to-day business to their son and accountants, thus having no more access to the records. Another excuse put forward by the respondents was that any records were lost after a renovation in 2017. The Court found these were not reasonable excuses, as the respondents and bookkeeper had a responsibility to keep employment records, and it was unreasonable not to do so.

This finding impacted other points of law considered by the Court. Having found there was no reasonable excuse not to keep and produce employment records, which were records relevant to the proceedings, the Industrial Magistrate, under section 83A(2)(b)(i) of the IR Act, extended the ordinary six-year limitation period to include 140 weekly pay periods from 27 April 2016 to 31 December 2018. Despite section 83EB of the IR Act coming into effect after the alleged contravention, it applied to the present case because it only affected the way the trial on the respondents’ compliance with its existing obligations was to be conducted.

In response to the alleged breaches of the Award, the respondents disputed whether the affected worker was employed in a ‘Restaurant and/or Tearoom’, or a ‘Catering Establishment’ as defined in clause 6 of the Award. The Industrial Magistrate rejected this contention for three reasons. Firstly, excluding a ‘kebab shop’ from the scope of the Award just because it is not specifically named in the Award would be too ‘overly narrow and pedantic’ and against the principles of construing industrial awards and agreements. Secondly, including kebab shops under the Award aligns with case law that ruled takeaway restaurants with optional dine-in services fit under the Award. Lastly, the presence of tables and chairs in the business meant customers could consume food on the premises and thus fit within clause 6 of the Award.

The respondents were unable to prove the affected worker did not work the hours alleged. This was because of the respondents’ inadequate, and sometimes contradictory, evidence. As such, the $20 paid for each hour of work was insufficient to cover the affected worker’s entitlements to overtime and public holiday rates. In addition to the underpayment, the Court found the affected worker did not receive meal break loading or a protective clothing allowance.

The respondents were ordered to pay the claimant $102,483.74 and the matter has been adjourned to proceedings on penalty. The full decision can be read here.