Industrial Magistrates Court of Western Australia

The Industrial Magistrates Court (IMC) found that ARC Holdings (WA) Pty Ltd (first respondent; ARC Holdings) and its sole director (second respondent) deliberately failed to comply with a compliance notice issued by an industrial inspector at the Department of Energy, Mines, Industry Regulation and Safety (the Department). The industrial inspector issued the compliance notice on 8 May 2023 to ARC Holdings (the Compliance Notice) and required ARC Holdings to pay $9,345.21 to a former employee for unpaid pro rata long service leave and provide evidence to the Department of the payment by 6 June 2023. ARC Holdings did not make the payment until September 2024, well after the deadline, and also did not provide evidence of that payment to the Department.

The claimant, another industrial inspector at the Department, brought the claim under sections 83E(1) and 84T(2) of the Industrial Relations Act 1979 (WA) (IR Act) and sought penalties for the following alleged contraventions:

• the first respondent breached section 84T(1) of the IR Act, which requires compliance with a compliance notice; and
• the second respondent was a person knowingly involved in the first respondent’s contravening actions.

ARC Holdings admitted it failed to comply with the Compliance Notice but the respondents maintained that their non-compliance was not deliberate and that they had engaged with the Compliance Notice by seeking a review pursuant to section 84U(1)(a) of the IR Act at the IMC (see [2023 WAIRC 00991]) and then appealing that decision to the Full Bench of the Western Australian Industrial Relations Commission (see [2024 WAIRC 00247]). Ultimately, both of these matters were dismissed and the Compliance Notice was confirmed. 

The respondents also sought to engage the ‘reasonable excuse’ provision set out in section 84T(3) of the IR Act and submitted that while the IR Act does not define the term ‘reasonable excuse’, it is intended to be a potential defence for a non-complying employer. The respondents contended they had a reasonable excuse for not complying with the Compliance Notice. In addition to the period of time impacted by the review and appeal matters, during June to August of 2024, the claimant did not respond to the respondents’ requests to confirm electronic funds transfer details and as such, the respondents could not make the payment. The claimant argued that the obligation to comply with the Compliance Notice arose on 6 June 2023 and the respondents' evidence of events since that date could not serve as a reasonable excuse as the reasonable excuse must have existed at that time to be a valid defence.

The Industrial Magistrate found that the respondents were aware of the need to obtain a stay of the Compliance Notice's operation but did not produce any evidence to explain why they had not complied with the Compliance Notice or pursued a stay of its operation following the review decision being delivered on 22 December 2023 and then following the dismissal of the Full Bench appeal on 28 May 2024. The Industrial Magistrate noted that the Compliance Notice clearly stated the bank details for the payment, and the respondents did not provide any evidence of their inability to make the payment to the specified bank account. Further, the respondents did not provide any evidence that ARC Holdings had complied with the second step in the process, that is to provide evidence of the required payment to the Department. The Industrial Magistrate found that the respondents did not establish a reasonable excuse for not complying with the Compliance Notice.

The Industrial Magistrate determined that ARC Holdings' non-compliance was deliberate and that the second respondent was involved in the contravention. As a result, the Industrial Magistrate imposed penalties of $15,000 on ARC Holdings and $3,000 on the second respondent, citing the need for both specific and general deterrence to ensure compliance with industrial laws, to reinforce the significance of adhering to compliance notices and to deter similar conduct by others in the future. The full decision can be read here.

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.