Industrial Magistrates Court of Western Australia

The Industrial Magistrates Court of Western Australia (Court) has dismissed a claim brought by an employee (the claimant) engaged by a beekeeping and honey production business, who alleged he was entitled to unpaid annual leave and sick leave.

The claimant was employed by the respondent between October 2020 and January 2025, performing a range of duties including extracting honey, cleaning, maintenance, deliveries and general assistance with production. After his employment ended, the claimant sought over $13,000 for unpaid annual and sick leave, arguing that he was, and had always been, a part-time employee covered by the Food, Beverage and Tobacco Manufacturing Award 2010 (Food and Beverage Award).

The respondent denied the claim, maintaining that the claimant was at all times employed as a casual employee (and therefore not entitled to paid annual and sick leave) and that his employment was covered by the Pastoral Award 2020. On reviewing the claim, the respondent accepted that it had underpaid the claimant under the Pastoral Award, as a casual employee, and calculated a shortfall of $2,379.44 in wages and $256.69 in superannuation. Having regard to this admission, the Court made orders for payment of those amounts, with the balance of the claim proceeding to a hearing. The remaining issues for determination were: 1) which modern award applied to the claimant’s employment, and 2) whether the claimant was employed as a casual or part-time employee.

Award coverage 

The Court rejected the respondent’s position that the Pastoral Award (which covers farming and livestock work) applied. While the business involved beekeeping and the definition of “livestock” in that Award includes insects, the Court found that none of the relevant classifications for farm or livestock workers matched the work performed by the claimant. Instead, the claimant’s duties (such as extracting, handling, processing and packaging honey) were more closely aligned with food production activities. On that basis, the Court determined that the Food and Beverage Award was the most appropriate, classifying the claimant at the lowest level under that award.

Part time or casual employment 

The claimant argued that he worked regular hours, typically on Mondays, Wednesdays and Fridays, and that there was an agreement he would work at least 30 hours per fortnight. However, after reviewing the timesheets, payroll records, text message exchanges and witness evidence, the Court found that this was not supported by the evidence and that the claimant’s account was not reliable.

Instead, the Court found that the claimant’s hours were highly variable, with differing start and finish times and no consistent pattern of work. While he often worked particular days, he also worked on other days or did not work at all. The evidence showed that he frequently informed the employer when he would not attend work, and that the employer either asked whether he was available for work or advised him when no work was required.

In these circumstances, the Court concluded that there was no firm commitment to ongoing or regular work. Rather, the arrangement operated on an “as needed” basis, in which work was offered based on the respondent’s requirements, and the claimant could choose whether to accept it. The Court also found that the employment was described by the parties as casual and that the hourly rate paid was consistent with casual employment, including a casual loading.

Accordingly, the Court determined that the claimant was a casual employee. As a result, he was not entitled to paid annual leave or paid personal (sick) leave under the National Employment Standards or the Food and Beverage Award, those entitlements being compensated by the casual loading.
While the Court observed that the respondent may have further underpaid the claimant by approximately $155.51 due to applying a casual rate under the incorrect award, the claim was ultimately dismissed. This was because the claimant’s case proceeded on the basis that he was a part-time employee entitled to paid leave, which the Court did not accept.

The full decision can be read here.

The Construction, Forestry and Maritime Employees Union (the claimant) brought a claim in the Industrial Magistrates Court of Western Australia (Court) alleging that Bhagwan Marine Limited (the respondent) contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with a clause in its Enterprise Agreement requiring the conversion of eight casual positions to permanent within four weeks of registration (the conversion clause), being by 16 October 2024. The claimant sought the imposition of a civil penalty payable to itself. 

The respondent initially denied the contravention but, in its amended response, admitted that it had failed to comply with the conversion clause within the prescribed timeframe. Nonetheless, the respondent contended that a penalty was not warranted, relying on its belief that there was an informal understanding with the claimant permitting delayed compliance, the complexity of its industrial operations, its 27 year history with no prior contraventions, and the fact that the delay was not deliberate and resulted in employees receiving a financial benefit of $125,967.69, as permanent entitlements were backdated and the casual loading was not recovered.

As the respondent admitted to the contravention, the sole issue for determination was the appropriate penalty, if any. The Court found that the conversion clause was clear and unambiguous, and that the four-week timeframe was a product of a negotiated agreement between the parties and not “arbitrary” as contended by the respondent. The Court rejected the existence of any agreed deferral of compliance, noting the absence of supporting evidence and preferring the claimant’s evidence of repeated follow-up requests for compliance. The Court held that, having agreed to the clause, the respondent was required to comply with it once the agreement acquired statutory force under s 50 of the FW Act.

In assessing the contravention, the Court found that the respondent was aware of its obligations but knowingly deferred compliance, with the conversion process commencing approximately two months after the deadline and concluding over four months late. While the delay was not motivated by any intention to secure a financial or industrial advantage and, in fact, resulted in a financial detriment, the Court characterised the breach as not inadvertent. The involvement of multiple levels of management, coupled with a lack of evidence explaining inaction during the initial compliance period, weighed against the respondent.

The Court accepted that the employees did not suffer financial loss, having received both backdated entitlements and ongoing casual loading, and that the respondent had no prior contraventions and acted in circumstances involving a one-off obligation. It also accepted evidence of contrition, cooperation, and steps taken to reinforce compliance. However, the Court emphasised that the financial consequences of the delay were a product of the respondent’s own decision-making and did not replace the need for a civil penalty. 

The Court held that both specific and general deterrence warranted the imposition of a penalty. While specific deterrence was moderated by the respondent’s history and the one-off nature of the obligation, general deterrence was significant in ensuring adherence to negotiated timeframes and maintaining confidence in and the integrity of the collective bargaining process.

Having regard to all relevant factors, the Court imposed a pecuniary penalty of $5,634 (being 6% of the maximum penalty of $93,900), reflecting the lower end of seriousness, in recognition of the absence of a deliberate attempt to gain financial or industrial advantage, the respondent’s contrition, the lack of financial loss suffered by employees and the fact it was the respondent’s first contravention. The Court ordered that the penalty be paid to the claimant.

The full decision can be read here.

The claimant, an Industrial Inspector with the Department of Local Government, Industry Regulation and Safety, brought a claim in the Industrial Magistrates Court of Western Australia (Court) against Downings Pty Ltd (first respondent) and its sole director (second respondent). The claimant alleged that the first respondent failed to comply with a compliance notice issued under s 84Q of the Industrial Relations Act 1979 (WA) (IR Act) requiring payment of $7,251.52 in outstanding long service leave entitlements (LSL entitlement) to a former employee (the employee), thereby contravening s 84T(1) of the IR Act. The claimant also alleged that the second respondent was knowingly involved in the contravention and sought civil penalties under s 83E(1)(a) and (b) of the IR Act against both respondents, as well as an order that the outstanding LSL entitlement be paid, with the respondents jointly and severally liable.

The respondents did not file formal responses to the claim within the specified time, and a default judgment was entered, requiring the respondents to pay the outstanding LSL entitlement and costs. The claim continued to a final hearing where the Court was required to determine the appropriate civil penalty. The evidence established the employee had been employed by the first respondent from 2011 to 2023 and, upon resignation, was owed LSL entitlements. Although the respondents initially made partial payments totalling $10,000, a balance of $7,251.52 remained unpaid despite repeated requests and the subsequent issuance of a compliance notice.

The Court accepted that the respondents’ failure to comply with the compliance notice arose from financial incapacity, noting the business had ceased trading following its sale and had no assets or income. While the respondents’ engagement with the Industrial Inspector was limited after September 2023, they had made partial payments, and the second respondent expressed contrition. The Court also gave limited weight to the respondents’ failure to comply with a compliance notice in the federal jurisdiction (for the non-payment of annual leave), as it arose from the same factual background. Further, the Court held that in the circumstances, specific deterrence was of lesser significance given that the first respondent had ceased trading and the second respondent was unlikely to resume business operations.

Notwithstanding this, the Court emphasised the importance of compliance notices as an enforcement mechanism under the IR Act and the need for general deterrence to ensure compliance with statutory obligations. The Court also noted the ongoing loss suffered by the employee, including financial and personal impacts arising from the prolonged non-payment of LSL entitlements.

Having regard to all relevant factors, including the seriousness of the contravention, the respondents’ circumstances, and the need for general deterrence, the Court ordered the first respondent to pay a penalty of $30,000 and the second respondent a penalty of $4,000, both payable to the claimant.

The full decision can be read here.