2019 WAIRC 00359
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2019 WAIRC 00359

CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD
:
WEDNESDAY, 3 APRIL 2019, THURSDAY, 4 APRIL 2019, ON THE PAPERS

DELIVERED
:
THURSDAY, 4 JULY 2019

FILE NO.
:
M 198 OF 2017

BETWEEN
:
SATNAM SINGH
CLAIMANT

AND

SEATOURS PTY LTD, TRADING AS PIZZA BELLA ROMA FREMANTLE
FIRST RESPONDENT
CHRIS JOHNSON
SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Modern award coverage – Restaurant industry – Classification within Restaurant Industry Award 2010 [MA000119] – Contravention of terms of a modern award on minimum pay; overtime; penalty rates and annual leave – Contravention of National Employment Standards and Fair Work Act 2009 (Cth) – Liability of director – Application of civil pecuniary penalty
Legislation : Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Long Service Leave Act 1958 (WA)
Instrument : Restaurant Industry Award 2010 [MA000119]
Case(s) referred to
in reasons : Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621
The Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No7) [2013] FCCA 1097
Logan and Otis Elevator Company Pty Ltd 1997 IRCA 200 (20 June 1997)
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18
Fair Work Ombudsman v Priority Matters Pty Ltd & Ors (No 4) [2019] FCCA 56
Fair Work Ombudsman v Bird (No.2) [2012] FMCA 312
Fair Work Ombudsman v Aussie Junk Pty Ltd (In Liquidation) & Anor [2011] FMCA 391
Guirguis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307
Potter v Fair Work Ombudsman [2014] FCA 187
Yorke v Lucas [1985] HCA 65
Abigroup Contractors Pty Ltd v CFMEU & Ors [2012] FMCA 820 (No.2)P
Mildren and Anor v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34
Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950
Devonshire v Magellan Powertronics Pty Ltd (2013) 275 FLR 273
Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) [2012] FCAFC 178
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166
Result : Claim proven in part
REPRESENTATION:

CLAIMANT : MR G. MCCORRY (AGENT)
RESPONDENTS : MS L. LANGRIDGE (OF COUNSEL) FROM SPARKE HELMORE LAWYERS

REASONS FOR DECISION
1 Satnam Singh (Mr Singh) was employed by Seatours Pty Ltd t/as Pizza Bella Roma Fremantle (the Company) from 2009 to 27 September 2017.
2 The classification of the work carried out by Mr Singh is an issue in dispute, but broadly speaking he was employed to work in the kitchen of a restaurant known as ‘Pizza Bella Roma’ located in Fremantle operated by the Company (the Restaurant), and his employment was subject to the provisions of the Restaurant Industry Award 2010 [MA000119] as varied from time to time (the Award).
3 Mr Singh’s claim has been amended on more than one occasion.
4 In summary, Mr Singh claims the Company contravened the Award in failing to pay him the minimum rates of pay and other entitlements applicable to the classification of work he says he undertook at the Restaurant, and in doing so the Company contravened the Fair Work Act 2009 (FWA). Mr Singh also claims the Company further contravened the FWA, the Fair Work Regulations 2009 (FWR) and the Long Service Leave Act 1958 (WA). Arising from this, Mr Singh also claims a pecuniary penalty for contraventions of the FWA and pre-judgment interest.
5 Mr Singh seeks orders for payment of the following amounts:
· $17,039.27 for unpaid wages from July 2012 to February 2017;
· $7,259.74 for unpaid long service leave entitlements;
· $5,474.67 for unpaid annual leave entitlements;
· $1,006.78 for unpaid annual leave loading entitlements;
· $4,230.76 for unpaid pay in lieu of notice;
· $2,914.22 for unpaid personal leave entitlements; and
· $1,618.73 for unpaid superannuation contributions due in respect of unpaid wages from July 2012 to February 2017.
6 Chris Johnson (Mr Johnson) is a director of the Company and Mr Singh claims that he aided, abetted, counselled or procured the Company’s alleged contraventions and/or was directly or indirectly involved in the Company’s alleged contraventions contrary to s 550(1) of the FWA.
7 The Company and Mr Johnson (the Respondents) dispute the claim.
8 Firstly, the Respondents deny Mr Singh was employed in the classification he claims and maintains that he was employed as a casual kitchen attendant until 6 February 2017 when he was employed full time as a sous chef.
9 Secondly, the Respondents say Mr Singh ceased his employment when he failed to attend work on 27 September 2017 or after that time.
10 As will be discussed, during the course of the hearing Mr Johnson agreed that there were discrepancies in the Award rates paid to Mr Singh from time to time but the discrepancies were inadvertent. The Company also accepts that Mr Singh is entitled to the payment of pro rata long service leave.
11 However, beyond this the Respondents deny Mr Singh is owed the amounts he otherwise claims.
Issues to be Determined
12 Notwithstanding a commonality of issues with respect to each nominated time period, it is convenient to identify the issues requiring determination by reference to the time periods identified by the parties:
1 July 2012 to 16 February 2014
a. What was Mr Singh’s classification of work under the Award for the period 1 July 2012 to 16 February 2014?
b. Was Mr Singh paid the requisite award rate for this classification during the same period?
c. If not, what is he entitled to be paid?
16 February 2014 to 29 May 2015
d. Was the Claimant employed on a casual or full time basis between 16 February 2014 and 29 May 2015?
e. What was Mr Singh’s classification of work under the Award during the same period?
f. Was Mr Singh paid the requisite award rate for this classification during the same period?
g. If not, what is he entitled to be paid?
h. Was Mr Singh entitled to accrue paid personal leave or paid annual leave entitlements during this same period (related to d.)?
29 May 2015 to 6 February 2017
i. What was Mr Singh’s classification of work under the Award for the period 29 May 2015 to 6 February 2017?
j. Was Mr Singh paid the requisite award rate for this classification during the same period?
k. If not, what is he entitled to be paid?
Cessation of employment
l. Did Mr Singh cease his employment without notice in September 2017 or was his employment terminated by the Company?
m. What entitlements (if any) arise if Mr Singh ceased his employment or if he was terminated?
Other issues
n. Did the Company keep employee records of the type prescribed in the FWR?
o. Did the Company ensure copies of the Award and National Employment Standards (NES) were made available?
p. Was Mr Johnson knowingly involved in any alleged contravention of the FWA by the Company within the meaning of s 550(1) of the FWA?
13 Schedule 1 of this decision sets out the law relevant to the jurisdiction, practice and procedure of this court in determining this case. Relevant to matters identified under the heading, ‘Jurisdiction’ in Schedule 1 of this decision, I am satisfied: the Company is a corporation to which paragraph 51(XX) of the Constitution applies and it is a ‘national system employer’; Mr Singh was an individual who was employed by the Company and is a ‘national system employee’.
14 Schedule 2 of this decision contains the relevant clauses of the Award, including relevant determinations.
15 Schedule 3 of this decision contains an agreed statement of facts and issues with the agreed rates of pay paid by the Company to Mr Singh.
16 Schedule 4 of this decision contains the relevant rates of pay under the Award from 1 July 2012 to 30 June 2017 as agreed by the parties.1
17 Schedule 5 of this decision contains the agreed schedules of hours worked by Mr Singh for the period 1 July 2012 to 17 September 2017.
18 At the outset it is noted the Company, having engaged a forensic accountant for the purposes of assessing the claim, agreed that it had underpaid Mr Singh but not for the reasons alleged by him. Furthermore, because of identifying the underpayment, the Respondents made an offer more than the amount sought by Mr Singh to resolve his claim. Mr Johnson made this admission, and others, in his oral evidence. Ordinarily this would not attract the court’s comment, but it is relevant to aspects of the orders sought and the way Mr Singh conducted his claim. In addition, the Company also says that there were times it overpaid Mr Singh.
Background
19 Mr Singh came to Australia from India on a student visa in November 2008 to undertake a Master’s degree in Accounting. He graduated with a Bachelor of Commerce from the University of Punjab Chandigarh in April 2005. Mr Singh is an educated person unlike many other employees in the restaurant industry.
20 He ceased his Master’s degree and instead undertook a Certificate III in Hospitality (Commercial Cookery) from 6 July 2009 to 2 July 2010 at Stanley College and was issued with the relevant certificate in April 2011.2
21 Since 2015 he is an Australian citizen.
22 He commenced work at the Restaurant in around October 2009. Mr Singh says he was employed as a ‘cook’ after seeing an advertisement on the door of the Restaurant and undertaking a work trial with Liam Broom, the then head chef.
23 Mr Singh says that Mr Broom schooled him in the practical aspects of cooking and he worked about 20 hours per week, mostly on weekends. This included preparing food, dish washing, cleaning the kitchen area and helping other senior cooks in day to day tasks.3
24 The Award states that a full time adult employee must be paid a minimum rate for their classification as set out in an applicable table (cl 20.1 of the Award) and the classification structure and descriptors contained in Schedule B.
25 Mr Singh claims that since 1 July 2012 he was employed as a ‘cook’ and that the appropriate level of classification for the work undertaken is Level 4 Cook grade 3. The Respondents deny this is the case, saying that he was employed as a sous chef from 6 February 2017 and was employed as a kitchen attendant (of varying grades) prior to this.
26 It is necessary to focus on the skills, duties and tasks undertaken by Mr Singh and compare this with the requirements of a Level 4 Cook grade 3.
27 The following principles, drawn from decided cases, are relevant to determining the appropriate classification of Mr Singh’s position:
· ‘Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect.’
Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 [27]; The Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No7) [2013] FCCA 1097; Logan and Otis Elevator Company Pty Ltd 1997 IRCA 200 (20 June 1997).
· Determining the major or substantial aspect of an employee’s employment is ‘not merely a matter of quantifying the time spent on the various elements of work performed…; the quality of the different types of work done is also a relevant consideration’.
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18.
28 Schedule B3.6 of the Award defines Cook grade 3 to mean a demi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training, and [my emphasis] who is engaged in cooking, baking, pastry cooking or butchering duties.
29 Schedule B3.1 of the Award defines Kitchen attendant grade 1 to mean an employee engaged in any of the following: (a) general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant; (b) assisting employees who are cooking; (c) assembly and preparation of ingredients for cooking; and (d) general pantry duties.
30 Schedule B3.2 of the Award defines Kitchen attendant grade 2 to mean an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area, or supervision of kitchen attendants.
31 Schedule B3.3 of the Award defines Kitchen attendant grade 3 to mean an employee who has the appropriate level of training including a supervisory course, and has the responsibility for the supervision, training and co-ordination of kitchen attendants of a lower grade.
32 Clause 3.1 of the Award defines appropriate level of training. Relevant to Mr Singh is (a) has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more designated units of competency from a Training Package. Clause 3.1 also provides:
(however, to avoid doubt, the minimum classification rate for an employee who has completed AQF Certificate III or higher qualifications relevant to the classification in which they are employed is Level 4 in clause 20.1…).
33 The relevance of this part of the definition of appropriate level of training is that it reinforces the appropriate classification rather than provides that because a person has completed AQF Certificate III they are to be paid at Level 4. That is, the fact of completing Certificate III does not obviate the need to determine what employment the person is engaged in. For example, someone may have completed a Certificate III in an area, but is unable to find employment in that area and accepts a position in the same type of area that does not require the skills associated with the training and, therefore, is employed at a lower classification commensurate with the role.
34 What employment a person is engaged in is a matter of fact having regard to the evidence.
Assessment of the Evidence
35 Mr Singh gave evidence on his behalf and adduced evidence from Atif Toor, former head chef at the Restaurant. Mr Johnson gave evidence on his behalf and on behalf of the Company and the Respondents adduced evidence from Maria Vegar and Carlos Lopez, employees at the Restaurant.
36 I note that other than Mr Johnson, English was not the first language for the witnesses. Thus, some allowances need to be made for expressions that may not translate well or differently if used in the witnesses’ primary language.
37 In that sense caution should be exercised to guard against the court taking an unfair advantage from having observed the witnesses in giving their evidence.
38 There were inherent deficiencies in Mr Singh’s evidence that, in my view, were not accountable by language difficulties. Further, the way his claim was conducted raised the possibility that he conflated issues that cannot be determined in this court where he seeks the payment of an amount of money owed under the FWA. This included repeated references to certain behaviours in the workplace which the court cannot determine and which, in fact, had little bearing on the matters in issue or the claim more generally.
39 Mr Singh sought to inflate his claim by reference to a level that was difficult for him to substantiate where he bears the onus of proving the claim. There were inconsistencies in his oral and written evidence for why certain events occurred and he denied knowledge of a video being taken on a mobile telephone when he must have been aware of the recording being made in the circumstances.
40 That is, according to Ms Vegar, who took the video in August 2016 on a mobile telephone, she was a short distance from Mr Singh and he was aware of the recording consistent with what can be observed in the video itself. While this did not, of itself, render all his evidence unreliable, it certainly diminished the authenticity of some of his evidence.
41 Mr Singh also sought to rely on photographs when, in cross-examination, it was revealed that contextually it was, at best, ambiguous how these photographs may support his claim.
42 Further, Mr Singh sought to discredit the Respondents in circumstances where he also, arguably, transgressed the law in respect of the terms of his student visa. That each party may have been non-compliant with immigration law did not ultimately assist in determining the issues.
43 This is not to say the Respondents’ evidence was without flaws. For example, there are admitted discrepancies in the accounting procedures relevant to Mr Singh’s hourly rates of pay.
44 However, Mr Lopez and Ms Vegar gave evidence on certain issues (primarily to do with timing) contrary to the Respondents’ interests, which supported the truthfulness and credibility of their evidence.
45 Often the most objective evidence is contained in associated documents tendered into evidence, which for the most part either supports or does not support a claimant’s claim.
46 Notwithstanding I have commented on the evidence generally, there are issues upon which I do not accept and reject Mr Singh’s evidence in preference to the Respondents’ evidence supported by certain documents tendered into evidence. On other issues I accept Mr Singh’s evidence. This will be identified where relevant and necessary to do so.
1 July 2012 to 16 February 2014
47 The parties agree Mr Singh was employed on a casual basis from 1 July 2012 to 16 February 2014.
48 The parties agree the pay rates and pay paid by the Company to Mr Singh during this same time period.4
49 The parties agree the hours worked by Mr Singh from 1 July 2012 to 16 February 2014.5
50 The principal factual issue in dispute is the classification of the work carried out by Mr Singh during this time by reference to the Award.
51 Mr Singh alleges that at all times he was employed as Cook grade 3, including during this period. I note that the agreed schedule B(1) (replicated in Schedule 5 to this decision) refers to Casual Cook Level 4 consistent with the pay rates for a Cook grade 3 indicated by Mr Singh in schedule B(1).
What was Mr Singh’s classification of work under the Award for the period 1 July 2012 to 16 February 2014?
52 Mr Singh says he worked solely as a cook from 2010 onwards. Further, he was sponsored for a subclass 857 visa in May 2012 on the basis that his application was as a ‘cook’ (the Visa Application), consistent with the employment agreement signed by Mr Johnson on 20 May 2012 (the Employment Contract).6 Mr Singh says that the offer for sponsorship arose in January 2012 from Gwyn Ellis, the then head chef.
53 The Employment Contract was intended to commence upon the granting of the 857 visa which did not occur until 10 February 2014 (through no fault of the parties).7
54 Mr Singh says that he was not made a full time employee until late March 2014.
55 Mr Johnson says Mr Singh was employed as a dishwasher in or around 2009. Thereafter, he worked predominantly as a kitchen hand and was not employed as a cook until February 2017, albeit that while as a kitchen hand Mr Singh did some cooking under supervision from time to time. This was a matter for the head chef to determine if it was necessary and if the person was happy to do the work for a short time.
56 Mr Johnson acknowledges the Employment Contract and Visa Application and agreed with its contents but says that until the 857 visa was granted, Mr Singh was not employed as a cook. Further, while Mr Singh had the qualifications to be a cook, this was not what he was employed as.
57 Mr Johnson says that in 2011 Mr Singh requested the Restaurant to sponsor him for an 857 visa and Ewan Dickson, Restaurant Manager, dealt with the Visa Application.8
58 There were a number of conditions attached to the Visa Application, including Mr Singh was to be employed in a full time position, paid an annual salary of $45,000 and the 857 visa was required to be granted. These terms were included in the Employment Contract.
59 Ms Vegar has been employed at the Restaurant since 1999. Ms Vegar says Mr Singh was employed as a dishwasher and then as a kitchen hand from late 2010. While a kitchen hand he undertook preparatory work required by the head chef. Ms Vegar says Mr Singh commenced cooking from mid-2014 while under the then head chef, Mr Toor.9
60 Mr Lopez has been employed at the Restaurant since October 2011. He is the Restaurant Manager but previously worked as a waitperson and supervisor, including supervising Mr Singh. He says Mr Singh worked as a kitchen hand and helped with food preparation and cleaning. Mr Lopez says Mr Singh occasionally worked on the fryers, cooking chips and chilli mussels.10
61 Mr Singh admitted that he did all the jobs including washing dishes, kitchen preparation, cleaning the kitchen, helping with kitchen tasks, and that he did not cook the entire time he was employed. He maintained he was a cook from 2010 or 2011 and that the head chefs consulted amongst themselves to appoint him as a chef. He agreed that the pay rates he claims were paid in 2012 to 2014 in accordance with the rates of pay for a Level 1 Kitchen hand, which are the same rates of pay contained in his payslips for the same period.
62 Mr Singh agreed there was no other evidence to support his claim that he was working as a cook at this time.
63 I am unable to find to the requisite standard that Mr Singh was employed as a Cook grade 3 from 1 July 2012 to 10 February 2014.
64 The Visa Application and Employment Contract refer to Mr Singh’s future employment as a ‘cook’ once the 857 visa was granted which was not until February 2014. It makes no reference to what level of ‘cook’ this was intended to be.
65 The job description in the Employment Contract includes roles such as food preparation, cooking and presenting dishes. However, the job description in the Employment Contract is substantially different to the job description in a new employment contract signed by Mr Singh on 30 January 2017 (2017 Employment Contract).11
66 The job description in the Employment Contract also includes checking areas, cleaning all kitchen areas, dishwashing, food hygiene and food safety, and administrative duties.
67 The job description in the 2017 Employment Contract includes working with the head chef to produce menus, training staff, ordering and stock take, preparation of sauces and menu dishes and making sure areas are clean and tidy.
68 The job description in the Employment Contract has many more menial tasks and is not directed to merely cooking.
69 The position of cook in the Visa Application was referrable to Australian and New Zealand Standard Classification of Occupations 351411 which is classed at skill level 3 (chefs are excluded from this group as they are classed in unit group 3513).12
70 Mr Singh was not employed as a ‘Sous Chef’ until February 2017.
71 Furthermore, I am highly doubtful on his evidence that Mr Singh had at least two years of on-the-job training in 2012 which, on his evidence, appears to have been an ad hoc arrangement of four months’ duration rather than any formal on-the-job training consistent with someone who holds a tradesperson position (i.e. Cook grade 3 and above).
72 Notably, Mr Toor says that he worked with Mr Singh from March 2014 and that he was working as a cook, cooking mussels and on the deep fryer (consistent with Mr Lopez’s evidence). Mr Toor says he moved Mr Singh to the pan section when he became head chef in November 2014. At other times he says Mr Singh worked on the grill and prepared pasta sauces.
73 Ms Vegar says she observed Mr Toor teaching Mr Singh how to cook pasta on the pan section sometime after Mr Toor started work and thereafter Mr Singh started working on the fryer to cook chips and schnitzels. She described Mr Toor and Mr Singh as friends.13 Mr Singh and Mr Toor deny this.
74 However, if Mr Singh was working as a cook at the level he says, there would have been no need for Mr Toor to move him to the pan section and expand his duties because on his evidence he was already doing this.
75 Level 3 classification under the Award includes Cook grade 2. In my view, once the 857 visa was granted this is the likely, and most appropriate, intended classification that would have been appropriate for the position intended to be occupied by Mr Singh.
76 In the meantime, while the Visa Application was being processed I am not satisfied the major or substantial aspect of Mr Singh’s employment was as a cook. Even on his evidence, his tasks and roles were varied and save for him saying he was cooking, there is little other evidence one way or another demonstrating that this was the major or substantial aspect of his employment, including the photographs of bowls, some calamari and a whisk. The Respondents’ evidence suggests otherwise.
77 Ms Vegar’s evidence is the most persuasive because she was consistently present during the period 2012 to 2014 and, in many regards, her evidence was consistent with Mr Singh’s evidence about certain tasks he carried out.
78 Accordingly, for the period 1 July 2012 to 16 February 2014 I find Mr Singh was employed as a casual kitchen hand and the classification appropriate to his employment in that time having regard to the major or substantial aspects of his employment was Level 1 Kitchen attendant grade 1, albeit I accept that he carried out some cooking duties during this time.
Was Mr Singh paid the requisite award rate for this classification during the same period?
79 To his credit, Mr Johnson accepted that the hourly rate paid to Mr Singh during that time was not always in accordance with the Award (even as a casual Level 1 Kitchen attendant grade 1), but he said that this was inadvertently done and had he been aware the hourly rate was incorrect he would have taken steps to remedy it. I also note that having regard to the agreed hourly rates paid to Mr Singh compared to the Award hourly rates that this did not occur on every occasion, but errors were made.
80 By way of example, between 1 July 2012 and 14 October 2012, the Company paid Mr Singh $22.16 per hour for hours worked on a Saturday. The Award provides that the casual hourly rate for time worked on a Saturday for a Level 1 employee (which includes Kitchen attendant grade 1) is $22.99. Similarly, for the same period, the Company paid Mr Singh $23.809 per hour for hours worked on Sunday when it ought to have paid $25.46 per hour.
What is Mr Singh entitled to be paid?
81 Mr Singh is entitled to be paid the applicable casual hourly rate for each hour worked at classification Level 1 Kitchen attendant grade 1 for the period 1 July 2012 to 10 February 2014.
16 February 2014 to 29 May 2015
82 The parties agree the pay rates and pay paid by the Company to Mr Singh during this same time-period.14
83 The parties agree the hours worked by Mr Singh from 16 February 2014 to 29 May 2015.15
84 The principal factual issues in dispute are the classification of the work carried out by Mr Singh during this time by reference to the Award and whether he was employed on a full time or casual basis.
85 Further, if it is found that Mr Singh was employed on a full time basis, was he entitled to paid personal leave and paid annual leave during this period?
Was the Claimant employed on a casual or full time basis between 16 February 2014 and 29 May 2015?
86 On 10 February 2014, Mr Singh was granted the 857 visa.16 According to the Employment Contract upon approval of the Visa Application Mr Singh was to commence employment as a ‘cook’ with a gross salary of $45,000 per annum, including penalties and shift allowance. Clause 9 of the Employment Contract noted that Mr Singh was a full time employee and was required to work 38 hours per week with an expectation of working reasonable hours in excess of this to carry out the performance of his job. It was intended that he would be paid overtime at the standard hourly rate or at the Award rate, whichever was higher.
87 The Employment Contract was consistent with the contents of the Visa Application as it related to full time status employment and pay.17
88 Mr Singh says that he asked the then head chef, Ewan Dickson, to be put on full time but he was not made full time until late March 2014.18
89 He was then paid $25 per hour from late March 2014 to May 2015. In cross-examination, Mr Singh denied saying to his employer that he wanted to be paid $25 per hour in lieu of annual leave.
90 Mr Johnson says his understanding is that Mr Singh wanted to have a more flexible arrangement so that he could carry out other work and that notwithstanding the Employment Contract and Visa Application Mr Singh continued to work casually for the agreed hourly rate of $25.
91 Mr Singh’s payslips (consistent with the agreed weekly total hours) show that during this period Mr Singh did not consistently work 38 hours per week expected of a full time employee and as purportedly contracted. In fact, he worked variable hours anywhere between 11 hours and 45 hours per week and he was paid a flat rate of $25 per hour.
92 The variable agreed weekly hours worked are inconsistent with Mr Singh’s evidence that he was working full time between 16 February 2014 and 29 May 2015. There are approximately 20 weeks where he worked less than 38 hours per week, sometimes significantly less. There are a number of weeks where it appears that he did not work at all to which I now infer he claims annual leave entitlements for those weeks.
93 The payslips and the agreed weekly hours of work are more consistent with Mr Johnson’s evidence that Mr Singh was working on a casual basis during this period, howsoever this came about. Mr Singh’s evidence that Mr Dickson put him on full time employment is inconsistent with his actual work hours, particularly where he worked less than the full time hourly equivalent.
94 I am not satisfied that Mr Singh has proven to the requisite standard that between 16 February 2014 and 29 May 2015 he was employed full time during this period. I say this noting the terms of the Employment Contract, but also noting that an annualised salary of $49,400 equates to $25 per hour if an employee was to work 38 hours per week. Thus, the Employment Contract takes me no further when regard is had to the actual weekly hours worked on a variable basis and merely forms one part of the evidence for consideration.
What was Mr Singh’s classification of work under the Award for the period 16 February 2014 to 29 May 2015?
95 Mr Singh maintains that he was a cook for this period.
96 Mr Lopez says from early 2015 Mr Singh was carrying out cooking shifts on his own on Wednesday nights when the Restaurant was quiet. In around May 2015, Mr Lopez says he commenced as restaurant manager and he had difficulty managing Mr Toor and Mr Singh due to their friendship. Mr Lopez says Mr Toor refused to hire another ‘cook’ because he was friends with Mr Singh and he did not want to reduce Mr Singh’s hours of work.19
97 As previously stated, Mr Toor says that he worked with Mr Singh from March 2014 and that he was working as a cook, cooking mussels and on the deep fryer. Mr Toor says he moved Mr Singh to the pan section when he became head chef in November 2014. At other times he says Mr Singh worked on the grill and prepared pasta sauces.
98 Mr Singh’s payslips demonstrate that from 17 February 2014 to 16 March 2014, he was paid hourly rates of pay consistent with a casual Level 1 Kitchen attendant grade 1 (noting that the rates of pay do not exactly accord with the rate provided by the Award).
99 From 17 March 2014, Mr Singh was paid a flat hourly rate of $25 and his annualised wage increased from $34,283.60 to $49,400 (equating to $25 per hour for a 38 hour working week).
100 There is clear discord between Mr Singh and Mr Toor and Mr Lopez and Ms Vegar, save that Mr Lopez says that Mr Singh occasionally cooked on the deep fryer and from early 2015 Mr Singh started to work alone on Wednesday nights. This coincides with Mr Toor, in what appears to be a unilateral decision, increasing Mr Singh’s scope of work to include working on the pans and other sections from November 2014 when Mr Toor was made head chef.
101 I do not accept that Mr Singh was cooking to the extent he says he was until Mr Toor decided to expand Mr Singh’s scope of work. To what extent this came about with the Company’s approval is difficult to say. To my mind it appears Mr Toor made a decision without proper consultation and Mr Lopez and the Company acquiesced to the decision where Mr Toor was in charge of the kitchen. However, it also appears that Mr Singh continued to carry out duties consistent with being a kitchen hand.
102 Mr Singh bears the onus of proving his claim. I am not satisfied that Mr Singh has demonstrated for the whole of this time the substantial aspect of his employment was as a cook (of any level), although I am satisfied that at some point in early 2015 the cooking duties he undertook commenced being the substantial aspect of his employment. The difficulty is identifying to the requisite standard when that was. Doing the best the court can do with the paucity of evidence I find that it was at the end of January 2015.
103 I find that from 16 February 2014 to 31 January 2015 the substantial aspect of Mr Singh’s employment was as a casual Level 1 Kitchen hand grade 1. I find that from 1 February 2015 to 29 May 2015 the substantial aspect of Mr Singh’s employment was as a casual cook, although I do not accept that it was at Cook grade 3. In my view, Mr Singh’s classification from this time was casual Level 3 Cook grade 2 (which is the same level as a Kitchen hand grade 3), consistent with him undergoing what appears to be some form of training by Mr Toor and consistent with the observations of Mr Lopez and Ms Vegar.
104 I do not accept that merely because Mr Singh was working on his own on Wednesday evenings that he was consistently acting in a higher role. Simply put, there was limited, if any, evidence of what in fact this entailed. It is equally possible he did no more than what might have been required by him in any event.
Was Mr Singh paid the requisite award rate for this classification during the same period? If not, what is he entitled to be paid?
105 Having regard to the findings made, it appears that for the period 16 February 2014 to 29 May 2015 Mr Singh was at times paid above the Award rate and at times he was paid below the Award rate when he was paid a flat rate of $25.00 per hour.
106 However, he was entitled to be paid at the Award rate as follows:
· 16 February 2014 to 31 January 2015 – casual Level 1 Kitchen hand Grade 1 for the hours worked; and
· 1 February 2015 to 29 May 2015 – casual Level 3 Cook grade 2 for the hours worked.
Was Mr Singh entitled to accrue paid personal leave or paid annual leave entitlements during this same period?
107 Having found that Mr Singh was a casual employee from 16 February 2014 to 29 May 2015, he was not entitled to accrued paid personal leave or paid annual leave during this time.
29 May 2015 to 6 February 2017
108 The parties agree Mr Singh was employed on a casual basis from 29 May 2015 to 6 February 2017.
109 The parties agree the pay rates and pay paid by the Company to Mr Singh during this same time-period.20
110 The parties agree the hours worked by Mr Singh from 29 May 2015 to 6 February 2017.21
111 The principal factual issue in dispute is the classification of the work carried out by Mr Singh during this time by reference to the Award.
What was Mr Singh’s classification of work under the Award for the period 29 May 2015 to 6 February 2017?
112 Mr Singh alleges that at all times he was employed as Cook grade 3, including during this period.
113 The Respondents allege that Mr Singh was employed as a kitchen attendant of varying levels.
114 Mr Singh refers to two video recordings, one taken in December 2015 and one taken in August 2016 by Ms Vegar. I have already referred to the lack of authenticity of Mr Singh’s evidence with respect to the video recording taken by Ms Vegar.
115 Further, the two videos do not advance the evidence in terms of Mr Singh’s assertion about being a Cook grade 3 during this time period. In fact there is little evidence about any change in Mr Singh’s duties from the finding made with respect to his duties in the period 1 February 2015 to 29 May 2015.
116 I will note, however, that in the December 2015 video Mr Singh touches the contents of the carton before pouring it into the pans and is dressed quite casually and the mood seems jovial rather than professional.
117 I find consistent with his ongoing but unchanged role from 1 February 2015 to 29 May 2015 that from 30 May 2015 to 6 February 2017 the substantial aspect of Mr Singh’s employment was as a casual Level 3 Cook grade 2.
Was Mr Singh paid the requisite award rate for this classification during the same period? If not, what is he entitled to be paid?
118 Mr Singh is entitled to be paid as a casual Level 3 Cook grade 2 (which I note also equates to a Kitchen hand grade 3) for the period 30 May 2015 to 6 February 2017.
119 Therefore, having regard to the payslips, Mr Singh was paid the following rates of pay (either in compliance with or not in compliance with the Award):
· from 1 February 2015 to 30 May 2015 – Level 1 Kitchen hand grade 1 when he ought to have been paid as a Level 3 Cook grade 2;
· from 1 June 2015 to 16 August 2015 – Level 2 Kitchen hand grade 2 when he ought to have been paid as a Level 3 Cook grade 2; and
· from 17 August 2015 to 5 February 2017 – Level 3 Kitchen hand grade 3 which is the same Award rate as that applicable to a Level 3 Cook grade 2.
120 Therefore, from 1 February 2015 to 16 August 2015 Mr Singh was not paid the requisite award rate as a casual Cook grade 2. However, from 17 August 2015 to 5 February 2017 while Mr Singh was paid as a casual Kitchen hand grade 3, this is the same Award rate applicable to a casual Level 3 Cook grade 2.
Cessation of Employment and Associated Entitlements (If Any)
121 The parties agree that on 30 January 2017 Mr Singh signed a contract of employment as a full time chef with an annual salary of $55,000 to commence on 6 February 2017.22
122 Mr Singh was second in charge of the Restaurant’s kitchen.
123 In late August and September 2017 the Claimant did not attend work and was entitled to be paid for the period of absence on account of accumulated personal leave entitlements.
124 Between 6 February and 27 September 2017, Mr Singh had accumulated 6.384 days of paid personal leave and was paid 35.59 hours of personal leave in August and September 2017.
125 Mr Singh did not attend his rostered shift on 27 September 2017 and did not return to work after this date.
126 Mr Singh was employed by the Company for approximately seven years and 11 months and the Company has not paid pro rate long service leave to which he is entitled.
127 On or around 19 December 2017 Mr Singh requested Mr Johnson provide copies of his time and wages records applicable to his period of employment and on 22 December 2017 Mr Johnson provided the payslips (attached to Mr Johnson’s supplementary witness statement).
Did Mr Singh cease his employment without notice in September 2017 or was his employment terminated by the Company?
128 Mr Singh says he hurt his shoulder in late July 2017 while at work, which he described as a progressive injury.23 Mr Toor or Mr Lopez put him on light duties which he did for three weeks and when he could not work for three days he was paid sick leave.24 He was paid further sick leave for a period of three days at the end of August 2017.25
129 Mr Singh says that he had a conversation with Mr Lopez on 1 September 2017 and that Mr Lopez told him that Mr Johnson did not want to progress a workers’ compensation claim because it would cost money and that he should use annual leave and sick leave to recover from his injury. However, Mr Singh said that he wanted to take annual leave in November 2017 and he was informed that he could take all of his four weeks annual leave in advance, provided he dropped the workers’ compensation claim. Mr Lopez denies Mr Singh’s version of the conversation.26
130 Thereafter, Mr Singh says he was paid a week’s annual leave on 10 September 2017 and on 17 September 2017 and in the meantime he sent emails to, and received emails from, Mr Lopez.27
131 On 20 September 2017 Mr Singh contacted the head chef, ‘Cola’, by text message about returning to work and advised that he would return to work on Wednesday and Thursday and take the remaining days as sick leave.
132 Mr Singh says that he was not paid annual leave or given any other payment in the week ending 24 September 2017 and he sent an email to Mr Lopez dated 26 September 2017 asking about this. Mr Singh said that on 27 September 2017 he telephoned Mr Lopez to ask why he had not been paid the third week of annual leave.28
133 Mr Singh says he telephoned Mr Lopez at 11.00 am and 12.30 pm on 27 September 2017 to ask about being paid for the third week of annual leave and he was told that he could only be paid accumulated annual leave (rather than annual leave in advance). Thereafter, during the second conversation Mr Singh says that Mr Lopez (on behalf of Mr Johnson) accused him of faking his injury to get a payout and that the workers’ compensation claim form would not be signed and he was to cease the injury claim.29
134 Mr Singh says that he was very angry with the conversation and that Mr Lopez told him ‘not to come to work’ which he understood to mean that he no longer had a job, and he told Mr Lopez that he would take him to court.30
135 The workers’ compensation claim was settled by the Company’s insurer in 2018.
136 Mr Singh says he was given no notice of termination and was not paid in lieu of notice of termination.
137 Mr Lopez’s version of what occurred is very different to that of Mr Singh’s. Mr Lopez says Mr Singh was expected to return to work on 27 September 2017 after three weeks off work.31 I note this is consistent with the contents of Mr Singh’s text message to the head chef on 20 September 2017 in which he also says, ‘[b]ut still I have 3 sick left and I will use it next week’.32 There is no reference to annual leave in this text message.
138 Following a discussion on the telephone Mr Lopez says he sent an email to Mr Singh confirming the contents of the telephone conversation33 and on 11 September 2017 he received an email from Mr Singh requesting to be paid four weeks annual leave and enquiring about the balance of his sick leave. Thereafter, Mr Lopez enquired with the Restaurant’s bookkeeper about Mr Singh’s leave entitlements and other information.34
139 Mr Lopez forwarded this information to Mr Singh who responded by asking whether any exception applied to him.35 Mr Lopez agreed he had a telephone conversation with Mr Singh on or around 27 September 2017 which did not end well because Mr Singh wanted four weeks’ annual leave, but Mr Lopez denied firing Mr Singh stating ‘if I fired him why would I email him to come and sit down?’.
140 On 30 September 2017, Mr Lopez sent an email to Mr Singh requesting a written response to any outstanding issues he had. On 2 October 2017, Mr Lopez says he telephoned Mr Singh asking him to resolve any issues he had at a meeting to which he says Mr Singh hung up on him.36
141 On 3 October 2017 Mr Singh sent Mr Lopez an email making various allegations and saying that he was going to take the Restaurant to court.37
142 Mr Singh did not attend work on 27 September 2017 and did not attend at any date thereafter.
143 The emails between Mr Singh and Mr Lopez demonstrate the following:
· Mr Singh’s complaint about shoulder pain was raised in late July 2017 and there was a discussion with Mr Lopez about going on holiday and the possibility of obtaining more personal leave than was currently accumulated [my emphasis]. Mr Singh said that he had already planned to go annual leave in November 2017;38
· on or around 4 September 2017 there was a further discussion where Mr Lopez stated in an email ‘I have explained you why we would not proceed with your injury claim. So we had agreed to use your sick leave and then your annual leave accrued [my emphasis]’. Mr Lopez attached the accrued annual leave;39
· on 11 September 2017 Mr Singh requested confirmation about paying four weeks annual leave and queried how much sick leave he had accrued;40
· on 19 September 2017 Mr Singh told Mr Lopez he would speak to Mr Johnson about the claim (presumably the workers’ compensation claim). There is a reference to Mr Johnson being angry [but not what about]; 41
· on 20 September 2017 Mr Singh informed the head chef via text that he will be returning to work on 27 September 2017 for two days and will use his remaining three sick days after that; 42
· on 26 September 2017 Mr Singh requested ‘last week annual leave pay’; 43
· on 27 September 2017 Mr Lopez provided Mr Singh with information about annual leave calculation; 44
· on 30 September 2017, Mr Lopez asked Mr Singh to commit in writing various issues he may have including the ‘proposed injury claim’; 45
· on 3 October 2017 Mr Singh responded to Mr Lopez making various allegations but relevantly said that ‘you, Chris and his insurance adviser will not decide about this’;46
· on 4 October 2017, Mr Lopez requested to meet and talk with Mr Singh and to write down the issues; 47 and
· there was no further communication until 19 December 2017 when Mr Singh sent an email requesting copies of employment records. 48
144 None of the email correspondence makes any reference to Mr Singh being terminated or dismissed, including the email from Mr Singh dated 19 December 2017. Notably the email from Mr Singh dated 4 October 2017 says nothing about being terminated or dismissed but refers to taking matters to court. I note that this email was sent by Mr Singh after he says he was told by Mr Lopez not to come to work on 27 September 2017.
145 Mr Singh’s workers’ compensation claim is not a matter for this court. Mr Johnson may well have been angry about the possibility of a workers’ compensation claim, which I note was later settled by QBE insurance. However, to the extent that the possibility of a workers’ compensation claim supports Mr Singh’s assertion that his employment was terminated, I am unable to draw that conclusion. Notably, and consistent with the Mr Lopez’s evidence, by 3 October 2017 the Company’s insurer appears to have been informed of the workers’ compensation claim. It is entirely a matter for the insurer whether to accept or not accept any claim, and if the claim was accepted then it is a matter for the insurer to consider reimbursing any amount for leave taken due to the injury. On 30 September 2017 Mr Lopez invited Mr Singh to meet to discuss, amongst other things, the ‘proposed injury claim’.
146 Mr Lopez stated that this was the first workers’ compensation claim that he had dealt with and he was guided by the Company’s insurer on how to manage it.
147 Save for Mr Singh’s assertion, the email correspondence does not support the agreement for the Company to pay annual leave in advance of accrued entitlements. While the possibility of additional personal leave was mentioned, it is clear Mr Lopez referred to the taking of accrued annual leave rather than annual leave being paid in advance. Thus, I do not accept that there was a separate agreement or promise (or whatever is alleged) for Mr Singh to be permitted to take any additional annual leave not accrued.
148 It was clearly Mr Singh’s intention to return to work on 27 September 2017 and save that there was a poor conversation with Mr Lopez on that day, there is simply no explanation (beyond mere speculation) as to why Mr Singh did not attend work on that day or thereafter. The only explanation arrives in the form of an email from Mr Singh on 4 October 2017 where it is clear he is disgruntled by a number of matters but, even then, beyond saying he is going to take matters to court, there is nothing that even remotely suggests he has been terminated by the Company.
149 In fact, the tone and content of his email is more consistent with Mr Singh leaving the workplace rather than his employment being terminated by the Company.
150 Mr Singh bears the onus of proving his claim that he was terminated by the Company and I am unable to find to the requisite standard that he was. Having regard to all of the evidence, particularly the email correspondence, I find that Mr Singh left his employment and he was not terminated or dismissed by the Company. I find that Mr Singh gave no notice (in writing or orally) of the cessation of his employment.
What entitlements (if any) arise if Mr Singh ceased his employment or if he was terminated?
151 Mr Singh says that he was not paid from 17 September 2017 and that he has outstanding entitlements owing. Mr Singh did not attend work from, and left his employment on, 27 September 2017 without notice.
Annual Leave
152 In respect of accrued annual leave at the time of the cessation of his employment it appears Mr Singh had 9.40 hours of accrued annual leave owing. I will hear from the parties further on this figure and payment of the same.
Personal Leave
153 In respect of personal leave at the time of the cessation of his employment it appears Mr Singh had accrued 1.6 hours, having taken all other personal leave that had accumulated. I will hear from the parties further on this figure.
154 Thus, on the figures above, it would appear that from 17 September 2017 Mr Singh was entitled to be paid 11 hours at the base rate of pay of $27.834 per hour or the amount of $306.17 with annual leave loading of 17.5% on the annual leave component of $4.87 per hour or the amount of $45.79.
Long Service Leave
155 The Award does not include the provision for the payment of long service leave. The parties agree that Mr Singh is entitled to the payment of long service leave and the Company submits it would have paid this entitlement had Mr Singh not ceased his employment without notice or if he had accepted any offers of settlement.
156 Pursuant to s 8(3) and s 9(2) of the Long Service Leave Act 1958 (WA) Mr Singh is entitled to a proportionate amount of 8 2/3 weeks based on an agreed period of continuous employment of seven years and 11 months.49 I find that Mr Singh is entitled to 34.30 days (or 260.68 hours) pro rata long service leave.
157 The rate at which Mr Singh is to be paid in respect of the long service leave entitlement is the ordinary rate of pay, which at the time of the cessation of his employment was $27.834 per hour.
158 Therefore, the long service entitlement owed to Mr Singh is $7,255.77.
Other Issues
Did the Company keep employee records of the type prescribed in the FWR?
159 Pursuant to s 535 of the FWA the Company is required to keep for seven years employee records of the kind prescribed by and containing the information prescribed by the FWR.
160 Regulation 3.32 of the FWR provides:
For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:
(a) the employer’s name; and
(b) the employee’s name; and
(c) whether the employee’s employment is fulltime or parttime; and
(d) whether the employee’s employment is permanent, temporary or casual; and
(e) the date on which the employee’s employment began; and
(f) on and after 1 January 2010—the Australian Business Number (if any) of the employer.
161 Regulation 3.33 of the FWR provides:
(1) For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:
(a) the rate of remuneration paid to the employee; and
(b) the gross and net amounts paid to the employee; and
(c) any deductions made from the gross amount paid to the employee.
(2) If the employee is a casual or irregular parttime employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee.
(3) If the employee is entitled to be paid:
(a) an incentivebased payment; or
(b) a bonus; or
(c) a loading; or
(d) a penalty rate; or
(e) another monetary allowance or separately identifiable entitlement;
the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.
162 Mr Singh agreed that he was provided with payslips by email during his employment.
163 The parties agree the payslips provided on 22 December 2017 accurately reflect the hours worked by, and rates of pay paid to, Mr Singh. The Respondents also accept, in part, that the payslips are inaccurate as it relates to the role or classification attributed to Mr Singh from time to time. There are also inaccuracies from time to time as it relates to the incorrect rate paid to Mr Singh.
164 However, I am satisfied that the payslips record Mr Singh’s name, the Restaurant’s name, the Australian Business Number, and identify when Mr Singh is employed casually. While the payslips do not expressly state Mr Singh is full time from 16 February 2017, a fair reading of the payslips demonstrates that this was the case. The payslips do not record the date on which his employment began.
165 Further, it appears that not all records (payslips) were kept for seven years, namely those for the first half of 2011.
166 While there was a suggestion that the Respondents had falsified the payslips from 2011, Mr Johnson provided an explanation for why the 2011 payslips were not previously provided to Mr Singh. Thus, in the absence of cogent evidence, beyond mere assertion supporting the falsification of the 2011 payslips, I reject this suggestion.
167 As previously identified, from time to time, Mr Singh’s classification was inaccurately recorded on the payslip, notwithstanding other details were correct.
168 Therefore, to the extent that the Company failed to comply with reg 3.32 of the FWR it is limited to failing to record the date on which Mr Singh commenced employment and that not all records were kept for seven years.
169 While Mr Singh says the Company failed to comply with reg 3.33 of the FWR, my own observation is that the payslips show the rate of pay paid, gross and net amounts paid, deductions made from the gross amount paid and the hours worked when Mr Singh was employed as a casual worker. Further, the payslips from February 2017 show annual leave loading when annual leave was taken in August and September 2017 (when Mr Singh was eligible for annual leave).
170 While I am satisfied the Company has failed to comply with reg 3.33 of the FWR, it is in relation records not kept for seven years relating to the first half of 2011.
171 Mr Singh also claims that the Company failed to comply with cl 28.2 of the Award as it relates for the period 16 February 2017 to September 2017 in that the Company failed to keep records relating to start and finish times for Mr Singh when he was on an annual salary of $55,000 (or at least I infer that this is Mr Singh’s claim).
172 Having regard to what I infer to be the applicable Award rates for 2016 to 2017 it appears that Mr Singh was paid an annualised salary of at least 25% above the weekly rate for a Cook grade 4, although I note his evidence is silent on this issue. However, I also note the payslips for February to September 2017 demonstrate that he was paid public holiday rates when he worked on a public holiday, where the 2017 Employment Contract stated the gross annual salary was inclusive of public holiday rates.50 In addition, the Award provides that there is no requirement to pay overtime and penalty rates in addition to the weekly wage provided the salary paid covers the employee.
173 The payslips demonstrate Mr Singh did not work in excess of 38 hours per week and he did not give evidence that he worked over 38 hours per week. It is apparent that he was paid for working on a public holiday (at a rate far in excess of the Award rate).
174 Thus I am not entirely satisfied cl 28.2 of the Award applies to Mr Singh, but if I am wrong about this then I accept that no records relating to the start and finish times were provided in these proceedings. However, I also note the Company paid Mr Singh to work on public holidays (where applicable) at a rate in excess of that applicable under the Award when it appears it was not required to do so.
Did the Company ensure copies of the Award and National Employment Standards (NES) were made available?
175 Mr Johnson said Mr Lopez kept the Award and NES in a cupboard and these documents were available upon request.
176 Clause 5 of the Award required the Company to ensure copies of the Award and NES were available on a noticeboard conveniently located at or near the workplace or through electronic means.
177 The Company accepts that it did not do so, although I understand the Award and NES are now available on a noticeboard at the Restaurant.
178 On that basis the Company has contravened cl 5 of the Award but has taken steps to rectify the contravention.
Was Mr Johnson knowingly involved in any alleged contravention of the FWA by the Company within the meaning of s 550(1) of the FWA?
179 Liability for contravening any of the civil remedy provisions of the FWA can attach to the director of a corporate employer or anyone else involved in a contravention. A person who is involved in the contravention is subject to the same civil penalties as the contravener.
180 Section 550 of the FWA provides:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
181 The intent of an accessory is found in their knowledge or belief that they are assisting or encouraging a primary offender to do something, which goes to make up the facts which constitute the relevant contravention.
182 Directors and others who are directly involved in the day to day management of a company may be personally liable for any breach of the FWA committed by the corporation. In most instances liability attaches because such a person will have been found to have been knowingly concerned in the contravention.
183 Adopting the Respondents’ summary as outlined in Fair Work Ombudsman v Priority Matters Pty Ltd & Ors (No 4) [2019] FCCA 56, the following principles demonstrate when a person is ‘involved’ in a contravention:
(a) a person or body corporate will only be regarded as ‘involved’ in a contravention if the person intentionally participated in the contravention;
(b) intentional participation requires actual, not constructive, knowledge of the essential matters that make up the contravention at the time of the contravention;
(c) being ‘knowingly concerned’ in a contravention requires association with, implication in, or a practical connection with the contravening conduct;
(d) however, it is not necessary that the person physically do anything to further the contravention. It is sufficient if the person, by what they said and agreed to do, in fact became associated with and thus involved, in the relevant sense, in the conduct constituting the contravention;
(e) it is the knowledge of the alleged accessory and not what might be postulated of a hypothetical person in the position of the alleged accessory which must be demonstrated, although what might be postulated of such a hypothetical person is not irrelevant. Knowledge must be the only rational inference available;
(f) the requisite actual knowledge must be present at the time of the contravention. A later acquisition of knowledge of the essential matters is not sufficient; and
(g) there are three qualifications with regard to knowledge:
(1) it is unnecessary to prove the Respondents knew that their actual participation was a breach of the FWA where no person will be excused from liability because of ignorance of the law;
(2) ‘wilful blindness’ may be inferred from a combination of suspicious circumstances and a failure to make enquiries; and
(3) proof of actual knowledge of each single instance of non-compliance is not necessary where the accessory is involved in and has actual knowledge of the ‘system’ of non-compliance.
184 In Fair Work Ombudsman v Bird (No.2) [2012] FMCA 312 [6], Smith FM said that it was significant to the question of accessorial liability that Mr Bird was the sole director and secretary of the company which was liable for primary contraventions under the FWA. Mr Bird was held to be a person ‘involved in’ all of the employer’s contraventions, including the underpayment of wages, because he had day-to-day control and supervision over the relevant company’s affairs and finances.
185 In Fair Work Ombudsman v Aussie Junk Pty Ltd (In Liquidation) & Anor [2011] FMCA 391 a sole director was ordered to pay a civil penalty of $72,000 for being involved in the company’s breaches by failing to pay employees their entitlements. His Honour Neville FM found the director to be liable because:
(a) he had knowledge of the facts and matters constituting the contravention by virtue of his position as a sole director and company secretary of the employer;
(b) he was the person solely responsible for determining and setting wage rates and conditions for the employees;
(c) he did not take any steps to increase pay rates for employees at all during the course of the Fair Work Ombudsman’s investigation;
(d) he was aware, before the commencement of the proceedings, that the employees entitlements were outstanding to the relevant employees;
(e) he had control of the company’s finances; and
(f) he was the person with the authority to direct payment of outstanding entitlements.
186 The fact that a person is the sole director does not however necessarily mean that he or she is personally liable for the company’s contravention of the FWA. The level of control and management of the particular director in question will be a significant consideration (see Guirguis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307).
187 In Potter v Fair Work Ombudsman [2014] FCA 187 a company director, Mrs Potter, was partially successful in appealing against a finding that she was an accessory in the company’s failure to pay correct wages to staff. The case concerned a call centre that failed to pay correct wages to its employees. Mrs Potter was aware that the company’s employees were likely to be covered by an award or enterprise agreement but wrongly decided that no award applied and caused the company to pay its employees under a defective workplace agreement.
188 The Federal Circuit Court imposed penalties against Mrs Potter on the basis that she was ‘knowingly concerned’ in the company’s underpayments even if she did not know that the employees were being paid less than what was required. She was found personally liable as an accessory to the company’s contraventions of the FWA because she was responsible for deciding each employee’s wages.
189 On appeal, the Federal Court noted that to be ‘knowingly concerned’ in the company’s contraventions of the FWA, the alleged accessory must have actual knowledge of the essential facts that constituted the contravention. Mere ignorance of the law may not be sufficient to attract personal liability. The court held that Mrs Potter could only be personally liable for the company’s underpayment if she had known the correct award that applied to the employees. As that was not the case throughout the employment, Mrs Potter’s appeal against the contraventions was partially successful. However, she was still held liable for underpayments made after she received professional advice that the award did apply.
190 The decision in Potter departs from previous authorities where company directors with control over staff wages have been held to be personally responsible for underpayments regardless of whether they knew that a particular award or enterprise agreement applied to staff or that particular staff were being underpaid.
191 It is not clear from Mr Singh’s submissions the basis upon which he says Mr Johnson is liable under s 550 of the FWA. To the extent I can discern, it appears that Mr Singh alleges that Mr Johnson was knowingly concerned in the contraventions or was at least ‘wilfully blind’ to the contraventions. I have also considered briefly whether Mr Johnson ‘aided, abetted, or procured’ the contraventions. Mr Singh bears the onus of proving his contentions.
192 Mr Singh’s evidence demonstrates very little involvement by Mr Johnson in his employment at the Restaurant and is limited to Mr Johnson signing employment contracts and the Visa Application where he is a director of the Company. On his evidence, Mr Singh generally denies having conversations with Mr Johnson save for a complaint made in 2016.
193 Mr Singh’s evidence demonstrates that he was ‘hired’ by Liam Broom, a head chef, where the head chef was generally the person in charge of the kitchen at the Restaurant. Thereafter, he says that Gwyn Ellis, the then head chef, said the Restaurant would sponsor him for an 857 visa. Thereafter, even on his evidence, Mr Toor and Mr Lopez appear to have been responsible for Mr Singh’s supervision, classification and rates of pay during his employment at the Restaurant.
194 Further, Mr Singh admitted he was emailed his payslips by the bookkeeper.
195 In addition, Mr Singh’s email correspondence, save for one handwritten note, was predominantly with Mr Lopez and when deciding to return to work in September 2017 Mr Singh text messaged ‘Cola’, the then head chef.
196 Mr Johnson says he employed a bookkeeper, Mr Lopez as Restaurant Manager and various head chefs, and relied upon their knowledge to manage the Restaurant. He met weekly with Mr Lopez to discuss issues relating to the Restaurant. He admitted that once discrepancies had been identified with respect to aspects of the pay rates applicable to Mr Singh’s wages, the Company offered to remedy the discrepancies and settle Mr Singh’s claim above the amount claimed by him. He described any discrepancies in pay as inadvertent rather than intentional.
197 In my view, this does not establish to the requisite standard Mr Johnson was knowingly concerned in the contraventions in the manner provided for in s 550(1) and s 550(2) of the FWA.
198 Mr Johnson did not accept Mr Singh’s assessment of his classification. Ultimately this issue was resolved by the court, albeit in Mr Singh’s favour in part only. Notwithstanding discrepancies in Mr Singh’s rates of pay from time to time, the hours worked and rates of pay were consistent with the Award rates (albeit incorrect from to time) corroborating to some extent that the discrepancies were inadvertent.
199 Mr Singh received award increases in pay rates from year to year. Mr Johnson employed other staff to manage the Restaurant and was satisfied these people had the requisite experience to do so.
200 In Yorke v Lucas [1985] HCA 65 the High Court of Australia considered the meaning of ‘aided, abetted and procured’. It held that ‘aiding and abetting’ in the context of criminal proceedings refers to a person who is present at the time of the commission of an offence whereas ‘procuring’ refers to a person who, although not present at the commission of the offence, is an accessory before the fact.
201 In Abigroup Contractors Pty Ltd v CFMEU & Ors [2012] FMCA 820 (No.2) the court referred to the Macquarie dictionary to define ‘aid’. It defines aid as ‘to afford support or relief to, to provide support’. ‘Abet’ is defined to mean ‘to urge on, to incite, instigate, to encourage’. In Guirguis the court observed that one ‘procures a contravention if he or she causes it to be committed, persuades the principal to commit it or brings about its commission [51]’. The second respondent’s conduct in merely organising the claimant’s pay cannot be said to provide support to the contraventions. She in no way urged, incited, instigated or encouraged the contraventions.
202 Having regard to what was said in Potter, I conclude that the necessary intent of an accessory is found in their knowledge or belief that they are assisting, encouraging or causing a primary offender to do something which goes to make up the relevant contraventions. Such participation must be intentional and aimed at the commission of a contravention, albeit not the specific contravention.
203 I am not satisfied Mr Johnson has aided, abetted or procured the contraventions committed by the Company.
204 Accordingly, I am not satisfied the claim against Mr Johnson pursuant to s 550(1) of the FWA is proven to the standard required.
Summary of Findings
205 In summary the following findings apply:
1 July 2012 to 16 February 2014
· Mr Singh was employed as a casual Level 1 Kitchen hand grade 1 and was entitled to be paid the relevant hourly rate for hours worked; and
· from time to time Mr Singh was not paid the relevant hourly rate in accordance with the Award (there are discrepancies in some of the hourly rates of pay).
16 February 2014 to 29 May 2015
· Mr Singh was employed as a casual Level 1 Kitchen hand grade 1 from 16 February 2014 to 31 January 2015 and was entitled to be paid the relevant hourly rate for hours worked;
· Mr Singh was employed as a casual Level 3 Cook grade 2 from 1 February 2015 to 29 May 2015 and was entitled to be paid the relevant hourly rate for hours worked; and
· Mr Singh was paid $25 per hour which was above award rate and below award rate depending on his hours of work.
30 May 2015 to 10 February 2017
· Mr Singh was employed as a casual Level 3 Cook grade 2 from 30 May 2015 to 10 February 2017 and he was entitled to be paid the relevant hourly rate for hours worked:
Ø from 1 June 2015 to 16 August 2015 Mr Singh was paid as a Level 2 Kitchen hand grade 2 when he ought to have been paid as a Level 3 Cook grade 2; and
Ø from 17 August 2015 to 5 February 2017 Mr Singh was paid as a Level 3 Kitchen hand grade 3 which is the same award rate as that applicable to a Level 3 Cook grade 2.
· Mr Singh ceased his employment without notice on 27 September 2017.
· At the time of the cessation of his employment Mr Singh was entitled to be paid 11 hours of accumulated personal and annual leave at the base rate of pay in the amount of $306.17 and annual leave loading of $45.79.
· At the time of the cessation of his employment Mr Singh was entitled to be paid 34.30 days of pro rata long service leave in the amount of $7,255.77.
· The Company failed to retain the prescribed records for seven years and failed, in part, to maintain completed records in compliance with reg 3.32 and reg 3.33 of the FWR.
· The Company failed to keep start and finish times as required by cl 28.2 of the Award.
· The Company failed to make available copies of the Award and NES in the manner required by cl 5 of the Award.
Applicable Contraventions of the FWA
206 As a result of the findings made, the following contraventions apply:
1 July 2012 to 16 February 2014
· The Company contravened s 45 of the FWA in failing to pay the relevant award hourly rates from time to time.
16 February 2014 to 29 May 2015
· The Company contravened s 45 of the FWA in failing to classify Mr Singh at the appropriate relevant classification from 1 February 2015 to 29 May 2015 and failing to pay him the relevant award rate applicable to the classification.
30 May 2015 to 10 February 2017
· From 1 June 2015 to 16 August 2015 the Company contravened s 45 of the FWA in failing to pay the relevant award hours at the appropriate classification.
· From 17 August 2015 to 5 February 2017 the Company contravened s 45 of the FWA in failing to appropriately classify Mr Singh, albeit he was paid at the correct award rate for hours worked.
· The Company contravened s 535 of the FWA in failing to keep prescribed records for the relevant period of time.
· The Company contravened s 45 of the FWA in failing to record start and finish times.
· The Company contravened s 45 of the FWA in failing to provide accessible copies of the NES and the Award.
Orders
207 Mr Singh seeks the payment of certain amounts.
208 As I indicated to the parties, having regard to the findings made, I will hear further from them on the amounts likely to be owed to Mr Singh.
209 For the purposes of the part of Mr Singh’s claim as it relates to the FWA, s 545(3) provides the order the IMC may make, which includes:
· the employer to pay an amount to an employee if the court is satisfied that the employer:
Ø was required to pay the amount under the FWA or a fair work instrument; and
Ø has contravened a civil remedy provision by failing to pay that amount.
210 In terms of proposed orders relevant to the FWA and s 545(3) of the FWA, this would include the payment of an amount required to be paid under the Award at the classification determined in accordance with these reasons, the failure of which is also a civil remedy provision (s 45 of the FWA). This also includes the payment of outstanding leave entitlements.
211 In terms of proposed orders relevant to the Long Service Leave Act 1958 (WA), this would include the payment of an amount as determined.
212 I will also hear from the parties on the imposition of any civil pecuniary penalty and any other order sought, including the payment of relevant superannuation benefits.



D. SCADDAN
INDUSTRIAL MAGISTRATE


1 My own review of the schedules provided by the parties reveal that they may be slightly inaccurate. This is not material for the purposes of determining liability but the parties ought to confirm any calculations when determining quantum.
2 Paragraphs [3] and [4] and annexure ‘SS1’ to exhibit 1.
3 Paragraph [7] of exhibit 1.
4 Contained in Schedule 3 of this decision.
5 Contained in Schedule 5 of this decision.
6 Annexures ‘SS4’ and ‘SS5’ and paragraph [10] of exhibit 1.
7 Annexure ‘SS4’ and ‘SS6’ and paragraph [12] of exhibit 1.
8 Paragraphs [17] to [23] of exhibit 12.
9 Paragraphs [2], [5], [10], [11] and [12] of exhibit 14.
10 Paragraphs [1], [2], [8] and [9] of exhibit 15.
11 Annexure‘SS11’ of exhibit 1.
12 Annexure ‘SS2’ of exhibit 1 relied upon by Mr Singh.
13 Paragraph [17] of exhibit 14.
14 Contained in Schedule 3 of this decision.
15 Contained in Schedule 5 of this decision.
16 Annexure ‘SS6’ of exhibit 1.
17 Annexure ‘SS5’ of exhibit 1.
18 Paragraph [12] of exhibit 1.
19 Paragraphs [10] to [12] of exhibit 13.
20 Contained in Schedule 3 of this decision.
21 Contained in Schedule 5 of this decision.
22 Annexure ‘SS11’ of exhibit 1.
23 Paragraph [19] at exhibit 1.
24 Paragraph [20] and annexure ‘SS13’ to exhibit 1.
25 Paragraph [21] and annexure ‘SS14’ to exhibit 1.
26 Paragraph [22] of exhibit 1.
27 Paragraphs [23] to [27] and annexure ‘SS15’ and annexure ‘SS16’ to exhibit 1.
28 Paragraphs [29] and [30] of exhibit 1.
29 Paragraphs [30] and [31] of exhibit 1.
30 Paragraph [32] of exhibit 1.
31 Paragraph [22] of exhibit 15.
32 Annexure ‘SS18’ of exhibit 1.
33 Paragraph [23] and annexure ‘A’ of exhibit 15.
34 Paragraph [24] to [27] of exhibit 15.
35 Paragraph [27] and [28] of exhibit 15.
36 Paragraph [29] and [30] of exhibit 15.

37 Paragraph [31] of exhibit 15.
38 Annexure ‘SS12’ of exhibit 1.
39 Annexure ‘A’ of exhibit 15.
40 Annexure ‘B’ of exhibit 15.
41 Annexure ‘SS17’ of exhibit 1.
42 Annexure ‘SS18’ of exhibit 1.
43 Annexure ‘SS19’ of exhibit 1.
44 Annexure ‘C’ of exhibit 15.
45 Annexure ‘D’ of exhibit 15.
46 Annexure ‘E’ of exhibit 15.
47 Annexure ‘E’ of exhibit 15.
48 Annexure ‘SS20’ of exhibit 1.
49 Having completed more than seven years but less than 10 years of continuous employment.
50 Annexure ‘SS11’ of exhibit 1.

Schedule I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA) under the Fair Work Act 2009 (Cth): Alleging Contravention of Modern Award
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The Industrial Magistrates Court (WA) (IMC), being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘Magistrates Court’); Industrial Relations Act 1979 (WA), s 81, s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include the terms of a modern award where the award applies to give an entitlement to a claimant employee and to impose an obligation upon a respondent employer: FWA, s 45, s 46. The award applies if it covers the employee and the employer and there are no relevant statutory exceptions (e.g. high income employees e.g. $138,900 pa from 1 July 2016): FWA, s 47. The award covers the employee and the employer if it is expressed to cover the employee and the employer: FWA, s 48(1).
[5] An obligation upon an ‘employer’ covered by an award is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 42, s 47, s 14, s 12. An entitlement of an employee covered by an award is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed by a national system employer’: FWA, s 42, s 47, s 13.
Contravention
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award: FWA, s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA include:
· The National Employment Standards set out in Part 2-2 of the FWA: FWA, s 539; s 44(1). Those standards include obligations of employers to employees with respect to annual leave as set out sections 86 – 94 of the FWA.
· A Modern Award set out in Part 2-3 of the FWA: FWA, s 539; s 45. Those standards include obligations of employers to employees with respect to rates of pay, ordinary hours of work, superannuation.
· Other terms and conditions of employment as set out in Part 3-6 of the FWA: FWA, s 539, s 535. Those terms and conditions include obligations of employers to employees with respect prescribed records under the FWR.
· An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 14, s 12. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed by a national system employer’: FWA, s 13.
[8] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA, s 545(3).
· A person to pay a pecuniary penalty: FWA, s 546.
In contrast to the powers of the Federal Court and the Federal Circuit Court, an eligible state or territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren and Anor v Gabbusch [2014] SAIRC 15.
Burden and Standard of Proof
[9] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not.
[10] In the context of an allegation of the breach of a civil penalty provision of the FWA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences [362].
[11] Where in this decision I state that 'I am satisfied' of a fact or matter I am saying that 'I am satisfied on the balance of probabilities' of that fact or matter. Where I state that 'I am not satisfied' of a fact or matter I am saying that 'I am not satisfied on the balance of probabilities' of that fact or matter.
Accessorial Liability Under the Fair Work Act 2009 (Cth)
[12] Section 550 of the FWA provides:
Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
[13] Decisions on this (or a comparable) provision have established the following principles:
A. Section 550 is in the same or similar form as the accessorial provision of other legislation, including s 75B of the Trade Practices Act 1974 (Cth) (now see the definition of ‘involved’ in the Australian Consumer Law Decisions on those provisions provide guidance to interpreting s 550 of the FWA not least because Parliament is assumed to have appreciated the effect those decisions when enacting s 550 of the FWA.
See Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950 [188]; Devonshire v Magellan Powertronics Pty Ltd (2013) 275 FLR 273; 231 IR 198; [2013] FMCA 207.
B. In order to establish whether any individual respondent was involved in a contravention, it is necessary to examine the state of mind of each respondent separately in relation to each alleged contravention.
See Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) [2012] FCAFC 178 [38].
C. The respondent must intentionally participate in the contravention and to form the requisite intent the respondent must have knowledge of the essential matters which go to make up the contravention, whether or not the respondent knows that those matters amount to a contravention.
See Construction, Forestry, Mining and Energy Union [38].
D. What constitutes ‘the essential matters of the contravention’ will depend upon the facts and circumstances of each case.
See the cases reviewed by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 [182] ff including Potter and Fair Work Ombudsman v Al Hilfi [2012] FCA 1166.
E. Cameron FM in Guirguis at [150] - [151] (omitting citations):
Section 550(2)(a) of the FWA provides for accessorial liability on the basis that a person has “aided, abetted, counselled or procured” a contravention. That paragraph is identical to s.75B(1)(a) of the Competition and Consumer Act and it can be inferred that they have the same meaning… it was said that “aided, abetted, counselled or procured” … have the same meaning as in the common law where they designate participation in a crime as a principal in the second degree or as an accessory before the fact. “Aiding” and “abetting” refer to a person who is present at the time of the commission of an offence and “counselling” and “procuring” refer to a person who, although not present at the commission of the offence, is an accessory before the fact.
A person counsels a contravention by another if he or she urges its commission, advises its commission or asks that it be committed and procures a contravention if he or she causes it to be committed, persuades the principal to commit it or brings about its commission; there must also be a causal connection between that action and the conduct impugned:’
F. ‘To be knowingly concerned in a contravention, the respondent must have engaged in some act or conduct which ‘implicates or involves him or her’ in the contravention so that there be a ‘practical connection between’ the person and the contravention’: Devine Marine Group Pty Ltd [178].
G. ‘For a person to be liable as an accessory to a contravention on the basis that they are wilfully blind to a certain fact, it still must be shown, albeit by inference, that the person had actual knowledge of such fact. If the term ‘wilful blindness’ is used merely as a shorthand expression to indicate circumstances which warrant the drawing of the necessary inference, then it is acceptable. But it is unacceptable if it is used as a basis for imputing knowledge where actual knowledge is not proved.’
See Potter [82].

Schedule II: Restaurant Industry Award 2010 [MA000119]
This Fair Work Commission consolidated modern award incorporates all amendments up to and including 21 June 2017 (PR592222, PR592372, PR592689, PR593889, PR593956).
…
3. Definitions and interpretation
[Varied by PR997772, PR503644, PR544294, PR546124]
3.1 In this award, unless the contrary intention appears:
Act means the Fair Work Act 2009 (Cth)
[Definition of adult apprentice inserted by PR544294 ppc 01Jan14]
adult apprentice means an apprentice who is 21 years of age or over at the commencement of their apprenticeship
agreement-based transitional instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
appropriate level of training means that an employee:
(a) has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more designated units of competency from a Training Package;
(b) has been assessed by a qualified skills assessor to have skills at least equivalent to those attained in an appropriate training course; and/or
(c) at 31 December 2009 (except for a Food and beverage attendant grade 2 as defined in Schedule B¾Classification Structure and Definitions) has been doing the work of a particular classification for a period of at least three months,
(however, to avoid doubt, the minimum classification rate for an employee who has completed AQF Certificate III or higher qualifications relevant to the classification in which they are employed is Level 4 in clause 20.1. For Food and beverage attendants grade 2, classification at grade 3 is subject to the employee having completed AQF Certificate II qualifications relevant to the grade 3 classification)
award-based transitional instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
catering by a restaurant business means the provision by a restaurant of catering services for any social or business function where such services are incidental to the major business of the restaurant
[Definition of default fund employee inserted by PR546124 ppc 01Jan14]
default fund employee means an employee who has no chosen fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth)
[Definition of defined benefit member inserted by PR546124 ppc 01Jan14]
defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992 (Cth)
[Definition of Division 2B State award inserted by PR503644 ppc 01Jan11]
Division 2B State award has the meaning in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
[Definition of Division 2B State employment agreement inserted by PR503644 ppc 01Jan11]
Division 2B State employment agreement has the meaning in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
[Definition of employee substituted by PR997772 from 01Jan10]
employee means national system employee within the meaning of the Act
[Definition of employer substituted by PR997772 from 01Jan10]
employer means national system employer within the meaning of the Act
enterprise award-based instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
[Definition of exempt public sector superannuation scheme inserted by PR546124 ppc 01Jan14]
exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth)
[Definition of MySuper product inserted by PR546124 ppc 01Jan14]
MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth)
NES means the National Employment Standards as contained in sections 59 to 131 of the Fair Work Act 2009 (Cth)
on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client
relevant apprenticeship legislation means any awards and/or regulations made by any State Apprenticeship Authority
restaurant industry means restaurants, reception centres, night clubs, cafes and roadhouses, and includes any tea room, café, and catering by a restaurant business but does not include a restaurant operated in or in connection with premises owned or operated by employers covered by any of the following awards:
(d) Hospitality Industry (General) Award 2010;
(e) Registered and Licensed Clubs Award 2010; or
(f) Fast Food Industry Award 2010
spread of hours means the period of time elapsing from the time an employee commences duty to the time the employee ceases duty within any period of 24 hours
standard hourly rate means the minimum hourly wage for a Level 4 classification (Cook grade 3 (tradesperson)) in clause 20.1
standard rate means the minimum wage for a Level 4 classification (Cook grade 3 (tradesperson)) in clause 20.1
standard weekly rate means the minimum weekly wage for a Level 4 classification (Cook grade 3 (tradesperson)) in clause 20.1
transitional minimum wage instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.
…
19. Classifications
The definitions of the classification levels in clause 20—Minimum wages, are contained in Error! Reference source not found.Error! Reference source not found..
20. Minimum wages
[Varied by PR998019, PR509150, PR522981, PR536784, PR544294, PR551707, PR566799, PR579913, PR592222]
20.1 General
[20.1 varied by PR998019, PR509150, PR522981, PR536784, PR551707, PR566799, PR579913, PR592222 ppc 01Jul17]
An adult employee within a level specified in the following table (other than an apprentice) will be paid not less than the rate per week assigned to the classification, as defined in Schedule B¾Classification Structure and Definitions, for the area in which such employee is working.
Classification
Minimum weekly wage
Minimum hourly wage

$
$
Introductory level
694.90
18.29
Level 1:
714.90
18.81
Food and beverage attendant grade 1


Kitchen attendant grade 1


Level 2:
742.30
19.53
Food and beverage attendant grade 2


Cook grade 1


Kitchen attendant grade 2


Clerical grade 1


Storeperson grade 1


Door person/security officer grade 1


Level 3:
767.80
20.21
Food and beverage attendant grade 3


Cook grade 2


Kitchen attendant grade 3


Clerical grade 2


Storeperson grade 2


Timekeeper/security officer grade 2


Handyperson


Level 4:
809.10
21.29
Food and beverage attendant grade 4 (tradesperson)


Cook grade 3 (tradesperson)


Clerical grade 3


Storeperson grade 3


Level 5:
859.80
22.63
Food and beverage supervisor


Cook grade 4 (tradesperson)


Clerical supervisor


Level 6:
882.80
23.23
Cook grade 5 (tradesperson)


20.2 Apprentices
(a) Minimum wages
[20.2(a) varied by PR998019, PR509150, PR522981, PR536784, PR551707, PR566799, PR579913, PR592222 ppc 01Jul17]

Percentage of the rate prescribed in clause 20.1 for a Cook grade 3
Minimum weekly wage
Minimum hourly wage

%
$
$
1st year
55
445.01
11.71
2nd year
65
525.92
13.84
3rd year
80
647.28
17.03
4th year
95
768.65
20.23
(b) Completion of full apprenticeship
Any person who has completed a full apprenticeship as a qualified tradesperson must be paid not less than the standard rate.
(c) Proficiency pay
(i) Application
Proficiency pay as set out in this clause will apply to apprentices who have successfully completed their schooling in a given year.
(ii) Payments
Apprentices will receive the rate of pay of a qualified cook during the latter half of the fourth year of the apprenticeship where the standard of proficiency has been attained on one, two or three occasions on the following basis:
· On one occasion only
· the first nine months of the fourth year of the normal fourth year rate of pay;
· thereafter, the qualified cook’s award rate of pay.
· On two occasions
· for the first six months of the fourth year of apprenticeship, the normal year rate of pay;
· thereafter, the qualified cook’s award rate of pay.
· On three occasions
· for the entire fourth year, the qualified cook’s award rate of pay.
(d) Adult apprentices
[20.2(d) inserted by PR544294 ppc 01Jan14]
(i) The minimum wage of an adult apprentice who commenced on or after 1 January 2014 and is in the first year of their apprenticeship must be 80% of the rate prescribed for a Cook grade 3, or the rate prescribed by clause 20.2(a) for the relevant year of the apprenticeship, whichever is the greater.
(ii) The minimum wage of an adult apprentice who commenced on or after 1 January 2014 and is in the second and subsequent years of their apprenticeship must be the rate for the lowest adult classification in clause 20.1, or the rate prescribed by clause 20.2(a) for the relevant year of the apprenticeship, whichever is the greater.
(iii) A person employed by an employer under this award immediately prior to entering into a training agreement as an adult apprentice with that employer must not suffer a reduction in their minimum wage by virtue of entering into the training agreement, provided that the person has been an employee in that enterprise for at least six months as a full-time employee or twelve months as a part-time or regular and systematic casual employee immediately prior to commencing the apprenticeship. For the purpose only of fixing a minimum wage, the adult apprentice must continue to receive the minimum wage that applies to the classification specified in clause 20.1in which the adult apprentice was engaged immediately prior to entering into the training agreement.
20.3 Juniors—minimum wages
(a) The minimum rate of wages for junior employees will be the percentages as set out below of the rate prescribed for the adult classification appropriate to the work performed for the area in which the employee is working.
Age
%
16 years and under
50
17 years and under
60
18 years of age
70
19 years of age
85
20 years of age
100
(b) The wage will be calculated to the nearest $0.10. Any broken part of $0.10 in the result not exceeding $0.05 is to be disregarded.
…
28. Annualised salary arrangements
28.1 Alternative method of payment—annual salary
(a) As an alternative to being paid by the week, by agreement between the employer and an individual employee, an employee other than a casual, can be paid at a rate equivalent to an annual salary of at least 25% or more above the weekly rate prescribed in clause 20—Minimum wages, multiplied by 52 for the work being performed. In such cases, there is no requirement under clauses 24.2, 33¾Overtime, 34.1 and 34.2 to pay overtime and penalty rates in addition to the weekly wage, provided that the salary paid over a year was sufficient to cover what the employee would have been entitled to if all award overtime and penalty rate payment obligations had been complied with.
(b) Provided further that in the event of termination of employment prior to completion of a year, the salary paid during such period of employment must be sufficient to cover what the employee would have been entitled to if all award overtime and penalty rate payment obligations had been complied with.
(c) An employee being paid according to this clause will be entitled to a minimum of eight days off per four week cycle. Further, if an employee covered by this clause is required to work on a public holiday, such employee will be entitled to a day off instead of public holidays or a day added to the annual leave entitlement.
28.2 The employer must keep all records relating to the starting and finishing times of employees to whom this clause applies. This record must be signed weekly by the employee. This is to enable the employer to carry out a reconciliation at the end of each year comparing the employee’s ordinary wage under this award and the actual payment. Where such a comparison reveals a shortfall in the employee’s wages, then the employee must be paid the difference between the wages earned under the award and the actual amount paid.
…
B.3 Kitchen
B.3.1 Kitchen attendant grade 1 means an employee engaged in any of the following:
(a) general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant;
(b) assisting employees who are cooking;
(c) assembly and preparation of ingredients for cooking; and
(d) general pantry duties.
B.3.2 Kitchen attendant grade 2 means an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area, or supervision of kitchen attendants.
B.3.3 Kitchen attendant grade 3 means an employee who has the appropriate level of training including a supervisory course, and has the responsibility for the supervision, training and co-ordination of kitchen attendants of a lower grade.
B.3.4 Cook grade 1 means an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking or butchering.
B.3.5 Cook grade 2 means an employee who has the appropriate level of training and who performs cooking duties such as baking, pastry cooking or butchering.
B.3.6 Cook grade 3 (tradesperson) means a commi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training, and who is engaged in cooking, baking, pastry cooking or butchering duties.
B.3.7 Cook grade 4 (tradesperson) means a demi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties and/or supervises and trains other cooks and kitchen employees.
B.3.8 Cook grade 5 (tradesperson) means a chef de partie or equivalent who has completed an apprenticeship or has passed the appropriate trade test or who has the appropriate level of training in cooking, butchering or pastry cooking and who performs any of the following:
(a) general and specialised duties including supervision or training of other kitchen staff;
(b) ordering and stock control; and
(c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment.

MA000119  PR551707
FAIR WORK COMMISSION
DETERMINATION


Fair Work Act 2009 
s.285—Annual wage review
Annual Wage Review 2013–14
(C2014/1)
RESTAURANT INDUSTRY AWARD 2010 
[MA000119]
Restaurants
 
JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER SPENCER 
COMMISSIONER HAMPTON
PROFESSOR RICHARDSON
MR COLE
MR HARCOURT
MELBOURNE, 19 JUNE 2014
Annual Wage Review 2013–14.
A. Further to the decision issued by the Expert Panel in the Annual Wage Review 2013–14 on 4 June 2014 [[2014] FWCFB 3500], the above award is varied as follows:
1. By deleting the table appearing in clause 20.1 and inserting the following:
Classification
Minimum weekly wage
Minimum hourly wage
 
$
$
Introductory level
640.90
16.87
Level 1:
659.40
17.35
Food and beverage attendant grade 1
 
 
Kitchen attendant grade 1
 
 
Level 2:
684.70
18.02
Food and beverage attendant grade 2
 
 
Cook grade 1
 
 
Kitchen attendant grade 2
 
 
Clerical grade 1
 
 
Storeperson grade 1
 
 
Door person/security officer grade 1
 
 
Level 3:
708.20
18.64
Food and beverage attendant grade 3
 
 
Cook grade 2
 
 
Kitchen attendant grade 3
 
 
Clerical grade 2
 
 
Storeperson grade 2
 
 
Timekeeper/security officer grade 2
 
 
Handyperson
 
 
Level 4:
746.20
19.64
Food and beverage attendant grade 4 (tradesperson)
 
 
Cook grade 3 (tradesperson)
 
 
Clerical grade 3
 
 
Storeperson grade 3
 
 
Level 5:
793.00
20.87
Food and beverage supervisor
 
 
Cook grade 4 (tradesperson)
 
 
Clerical supervisor
 
 
Level 6:
814.20
21.43
Cook grade 5 (tradesperson)
 
 
2. By deleting the table appearing in clause 20.2(a) and inserting the following:
 
Percentage of the rate prescribed in clause 20.1 for a Cook grade 3
Minimum weekly wage
Minimum hourly wage
 
%
$
$
1st year
55
410.41
10.80
2nd year
65
485.03
12.76
3rd year
80
596.96
15.71
4th year
95
708.89
18.66


MA000119  PR566799
FAIR WORK COMMISSION
DETERMINATION

Fair Work Act 2009 
s.285—Annual wage review
Annual Wage Review 2014–15
(C2015/1)
RESTAURANT INDUSTRY AWARD 2010 
[MA000119]
Restaurants
 
JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON 
COMMISSIONER HAMPTON
MR COLE
PROFESSOR RICHARDSON
MR GIBBS
MELBOURNE, 18 JUNE 2015
Annual Wage Review 2014–15.
A. Further to the decision issued by the Expert Panel in the Annual Wage Review 2014–15 on 2 June 2015 [[2015] FWCFB 3500], the above award is varied as follows:
1. By deleting the table appearing in clause 20.1 and inserting the following:
Classification
Minimum weekly wage
Minimum hourly wage
 
$
$
Introductory level
656.90
17.29
Level 1:
675.90
17.79
Food and beverage attendant grade 1
 
 
Kitchen attendant grade 1
 
 
Level 2:
701.80
18.47
Food and beverage attendant grade 2
 
 
Cook grade 1
 
 
Kitchen attendant grade 2
 
 
Clerical grade 1
 
 
Storeperson grade 1
 
 
Door person/security officer grade 1
 
 
Level 3:
725.90
19.10
Food and beverage attendant grade 3
 
 
Cook grade 2
 
 
Kitchen attendant grade 3
 
 
Clerical grade 2
 
 
Storeperson grade 2
 
 
Timekeeper/security officer grade 2
 
 
Handyperson
 
 
Level 4:
764.90
20.13
Food and beverage attendant grade 4 (tradesperson)
 
 
Cook grade 3 (tradesperson)
 
 
Clerical grade 3
 
 
Storeperson grade 3
 
 
Level 5:
812.80
21.39
Food and beverage supervisor
 
 
Cook grade 4 (tradesperson)
 
 
Clerical supervisor
 
 
Level 6:
834.60
21.96
Cook grade 5 (tradesperson)
 
 
2. By deleting the table appearing in clause 20.2(a) and inserting the following:
 
Percentage of the rate prescribed in clause 20.1 for a Cook grade 3
Minimum weekly wage
Minimum hourly wage
 
%
$
$
1st year
55
420.70
11.07
2nd year
65
497.19
13.08
3rd year
80
611.92
16.10
4th year
95
726.66
19.12


MA000119  PR579913
FAIR WORK COMMISSION
DETERMINATION

Fair Work Act 2009 
s.285—Annual wage review
Annual Wage Review 2015–16
(C2016/1)
RESTAURANT INDUSTRY AWARD 2010 
[MA000119]
Restaurants
 
JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT ASBURY 
COMMISSIONER HAMPTON
MR COLE
PROFESSOR RICHARDSON
MR GIBBS
MELBOURNE, 21 JUNE 2016
Annual Wage Review 2015–16.
A. Further to the decision issued by the Expert Panel in the Annual Wage Review 2015–16 on 31 May 2016 [[2016] FWCFB 3500], the above award is varied as follows:
1. By deleting the table appearing in clause 20.1 and inserting the following:
Classification
Minimum weekly wage
Minimum hourly wage
 
$
$
Introductory level
672.70
17.70
Level 1:
692.10
18.21
Food and beverage attendant grade 1
 
 
Kitchen attendant grade 1
 
 
Level 2:
718.60
18.91
Food and beverage attendant grade 2
 
 
Cook grade 1
 
 
Kitchen attendant grade 2
 
 
Clerical grade 1
 
 
Storeperson grade 1
 
 
Door person/security officer grade 1
 
 
Level 3:
743.30
19.56
Food and beverage attendant grade 3
 
 
Cook grade 2
 
 
Kitchen attendant grade 3
 
 
Clerical grade 2
 
 
Storeperson grade 2
 
 
Timekeeper/security officer grade 2
 
 
Handyperson
 
 
Level 4:
783.30
20.61
Food and beverage attendant grade 4 (tradesperson)
 
 
Cook grade 3 (tradesperson)
 
 
Clerical grade 3
 
 
Storeperson grade 3
 
 
Level 5:
832.30
21.90
Food and beverage supervisor
 
 
Cook grade 4 (tradesperson)
 
 
Clerical supervisor
 
 
Level 6:
854.60
22.49
Cook grade 5 (tradesperson)
 
 
2. By deleting the table appearing in clause 20.2(a) and inserting the following:
 
Percentage of the rate prescribed in clause 20.1 for a Cook grade 3
Minimum weekly wage
Minimum hourly wage
 
%
$
$
1st year
55
430.82
11.34
2nd year
65
509.15
13.40
3rd year
80
626.64
16.49
4th year
95
744.14
19.58


MA000119  PR592222
FAIR WORK COMMISSION
DETERMINATION

Fair Work Act 2009 
s.285—Annual wage review
Annual Wage Review 2016–17
(C2017/1)
RESTAURANT INDUSTRY AWARD 2010 
[MA000119]


Restaurants
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY 
COMMISSIONER HAMPTON
MR COLE
PROFESSOR RICHARDSON
MR GIBBS
MELBOURNE, 21 JUNE 2017
Annual Wage Review 2016–17.
A. Further to the decision issued by the Expert Panel in the Annual Wage Review 
2016–17 on 6 June 2017 [[2017] FWCFB 3500], the above award is varied as follows:
1. By deleting the table appearing in clause 20.1 and inserting the following:
Classification
Minimum weekly wage
Minimum hourly wage
 
$
$
Introductory level
694.90
18.29
Level 1:
714.90
18.81
Food and beverage attendant grade 1
 
 
Kitchen attendant grade 1
 
 
Level 2:
742.30
19.53
Food and beverage attendant grade 2
 
 
Cook grade 1
 
 
Kitchen attendant grade 2
 
 
Clerical grade 1
 
 
Storeperson grade 1
 
 
Door person/security officer grade 1
 
 
Level 3:
767.80
20.21
Food and beverage attendant grade 3
 
 
Cook grade 2
 
 
Kitchen attendant grade 3
 
 
Clerical grade 2
 
 
Storeperson grade 2
 
 
Timekeeper/security officer grade 2
 
 
Handyperson
 
 
Level 4:
809.10
21.29
Food and beverage attendant grade 4 (tradesperson)
 
 
Cook grade 3 (tradesperson)
 
 
Clerical grade 3
 
 
Storeperson grade 3
 
 
Level 5:
859.80
22.63
Food and beverage supervisor
 
 
Cook grade 4 (tradesperson)
 
 
Clerical supervisor
 
 
Level 6:
882.80
23.23
Cook grade 5 (tradesperson)
 
 
2. By deleting the table appearing in clause 20.2(a) and inserting the following:
 
Percentage of the rate prescribed in clause 20.1 for a Cook grade 3
Minimum weekly wage
Minimum hourly wage
 
%
$
$
1st year
55
445.01
11.71
2nd year
65
525.92
13.84
3rd year
80
647.28
17.03
4th year
95
768.65
20.23
B. This determination comes into operation from 1 July 2017. In accordance with s.166(5) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 1 July 2017.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Schedule III: Statement of Agreed Facts and Issues
FACTS COMMON TO ALL PERIODS
1. The 1st Respondent is a trading or financial corporation and a national system employer within the meaning of section 14 of the Fair Work Act 2009 (FW Act).
2. The 2nd Respondent is officer of the 1st Respondent within the meaning of section 9 of the Corporations Act 2001.
3. The Claimant was at all material times an employee of the 1st Respondent and a national system employee within the meaning of section 13 of the FW Act.
4. The 1st Respondent at all material times operated a restaurant named Pizza Bella Roma located in Fremantle Western Australia.
5. On and from 1 January 2010 the Claimant’s employment was subject to the provisions of the Restaurant Industry Award 2010 (the Award).
6. The minimum prescribed rates of pay for each classification in the Award in the period 1 July 2012 to 27 September 2017 are those specified in the Tender Bundle.
7. The relevant applicable provisions of the Restaurant Industry Award 2010 from time to time are those in the Tender Bundle

PERIOD A 1 JULY 2012 TO 16 FEBRUARY 2014
8. Between 1 July 2012 and the pay period ending 16 February 2014 the Claimant was employed on a casual basis.
9. Between 1 July 2012 and the pay period ending 14 October 2012 the 1st Respondent paid the Claimant:
(a) $20.525 per hour for hours worked Monday to Friday;
(b) $22.16 per hour for hours worked on Saturday;
(c) $23.809 per hour for hours worked on Sunday; and
(d) $28.735 per hour for hours worked on a public holiday.

10. Between the pay period ending 14 October 2012 and the pay period ending 30 June 2013, the 1st Respondent paid the Claimant:
(a) $20.525 per hour for hours worked Monday to Friday;
(b) $22.988 per hour for hours worked on Saturday;
(c) $25.451 per hour for hours worked on Sunday; and
(d) $32.84 per hour for hours worked on a public holiday.

11. Between the pay period ending 30 June 2013 and the pay period ending 25 August 2013, the 1st Respondent paid the Claimant:
(a) $21.063 per hour for hours worked Monday to Friday;
(b) $22.59 per hour for hours worked on Saturday;
(c) $26.118 per hour for hours worked on Sunday; and
(d) $32.84 per hour for hours worked on a public holiday.

12. Between the pay period ending 25 August 2013 and the pay period ending 16 February 2014, the 1st Respondent paid the Claimant:
(a) $21.688 per hour for hours worked Monday to Friday;
(b) $24.29 per hour for hours worked on Saturday;
(c) $26.893 per hour for hours worked on Sunday; and
(d) $34.70 per hour for hours worked on a public holiday.

13. Except for the pay period ending 20 December 2012, between the pay period ending 1 July 2012 and the pay period ending 30 June 2013, the Claimant worked each week the hours shown in columns 3 (Total Hrs), 4 (Ord hrs), 5 (Sat hrs), and 6 (Sun hrs) of Schedule B (1). In any week the Claimant worked on a public holiday, the total hours worked on the public holidays are the hours shown under the pay period ending date in column 1 of Schedule B(1).
14. Except for the pay period ending 25 August 2013, between the pay period ending 30 June 2013 and the pay period ending 16 February 2014, the Claimant worked each week the hours shown in columns 3 (Total Hrs), 4 (Ord hrs), 5 (Sat hrs), and 6 (Sun hrs) of Schedule B (2). In any week the Claimant worked on a public holiday, the total hours worked on the public holidays are the hours shown under the pay period ending date in column 1 of Schedule B(2).
15. In the pay periods ending 20 December 2012 and 25 August 2013 the hours shown in Schedules B(1) and B(2) to have been worked in those weeks are less than the hours shown to have been worked by the payslip records.
ISSUES
A. Between 1 July 2012 and the pay period ending 16 February 2014 was the Claimant working as a Cook Level 3 (tradesperson) as defined in clause B.3.6 of Schedule B of what was the Claimant’s correct classification under the Award?
B. If so, wWas the Claimant paid less than the Award rate prescribed for work in ordinary hours in accordance with the classification identified at 15(A):
(a) from Monday to Friday
(b) on Saturdays
(c) on Sundays
(d) on public holidays and
(e) in respect of superannuation contributions

PERIOD B 16 FEBRUARY 2014 TO 29 MAY 2015
16. Between the pay period ending 16 March 2014 and the pay period ending 29 June 2014, the 1st Respondent paid the Claimant:
(a) $25.00 per hour for hours worked Monday to Friday;
(b) $25.00 per hour for hours worked on Saturday;
(c) $25.00 per hour for hours worked on Sunday;
(d) $25.00 per hour for hours worked in excess of 38 hours per week; and
(e) $31.00 per hour for hours worked on a public holiday.

17. Between the pay period ending 29 June 2014 and the pay period ending 29 May 2015, the 1st Respondent paid the Claimant:
(a) $25.00 per hour for hours worked Monday to Friday;
(b) $25.00 per hour for hours worked on Saturday;
(c) $25.00 per hour for hours worked on Sunday;
(d) $25.00 per hour for hours worked in excess of 38 hours per week; and
(e) $31.00 per hour for hours worked on a public holiday.
ISSUES
A. Between on or about 16 February 2014 and 29 May 2015 was the Claimant:
(a) was the Claimant employed on a full time or casual basis?
(b) working as a Cook Level 3 (tradesperson) as defined in clause B.3.6 of Schedule B of what was the correct classification of the Claimant’s employment at that time under the Award

B. Was the Claimant paid less than the Award rate prescribed for work in ordinary hours in accordance with the classification identified at 17(B):
(a) from Monday to Friday
(b) on Saturdays
(c) on Sundays
(d) on public holidays and
(e) in respect of superannuation contributions
C. If the Claimant was employed on a full time basis and (a) did not take any of the paid annual leave and (b) did not take any of the paid personal leave prescribed by the Fair Work Act 2009, were those leave entitlements preserved when the Claimant subsequently became a casual employeeWas the claimant entitled to accrue paid personal leave or paid annual leave entitlements during this period?

PERIOD C 29 MAY 2015 TO 6 FEBRUARY 2017
18. Between on or about 29 May 2015 and 6 February 2017 the Claimant was employed on a casual basis.
19. Between the pay period ending 29 May 2015 and the pay period ending 16 August 2015, the 1st Respondent paid the Claimant:
(a) $22.525 per hour for hours worked Monday to Friday;
(b) $27.03 per hour for hours worked on Saturday;
(c) $27.03 per hour for hours worked on Sunday; and
(d) $45.049 per hour for hours worked on a public holiday.

20. Between the pay period ending 16 August 2015 and the pay period ending 26 June 2016 , the 1st Respondent paid the Claimant:
(a) $23.875 per hour for hours worked Monday to Friday;
(b) $28.65 per hour for hours worked on Saturday;
(c) $33.425 per hour for hours worked on Sunday; and
(d) $47.751 per hour for hours worked on a public holiday.

21. Between the pay period ending 26 June 2016 and the pay period ending 5 February 2017, the 1st Respondent paid the Claimant:
(a) $24.45 per hour for hours worked Monday to Friday;
(b) $29.34 per hour for hours worked on Saturday;
(c) $34.23 per hour for hours worked on Sunday; and
(d) $48.90 per hour for hours worked on a public holiday.

22. Between the pay period ending 30 June 2015 and the pay period ending 26 June 2016, the Claimant worked each week the hours shown in columns 3 (Total Hrs), 4 (Ord hrs), 5 (Sat hrs), and 6 (Sun hrs) of Schedule B (4) of the tender bundle. In any week the Claimant worked on a public holiday, the total hours worked on the public holidays are the hours shown under the pay period ending date in column 1 of Schedule B(4).
23. Between the pay period ending 26 June 2016 and the pay period ending 5 February 2017, the Claimant worked each week the hours shown in columns 3 (Total Hrs), 4 (Ord hrs), 5 (Sat hrs), and 6 (Sun hrs) of Schedule B (5) hereof. In any week the Claimant worked on a public holiday, the total hours worked on the public holidays are the hours shown under the pay period ending date in column 1 of Schedule B(5).
ISSUES
A. Between on or about 29 May 2015 and 6 February 2017 was the Claimant working as a Cook Level 3 (tradesperson) as defined in clause B.3.6 of Schedule B of what was the correct classification of the Claimant’s employment under the Award?
B. If so, wWas the Claimant paid less than the Award prescribed for work in ordinary hours in accordance with the classification indentified at 17(B):
(a) from Monday to Friday
(b) on Saturdays
(c) on Sundays
(d) on public holidays and
(e) in respect of superannuation contributions

PERIOD D 6 FEBRUARY 2017 TO 30 DECEMBER 2017
24. On or about 6 February 2017 the Claimant entered into a new contract of employment with the 1st Respondent as a full time Souse (sic) chef and was entitled by the terms of the contract of employment to an annual salary of $55,000.
25. A sous-chef is one who is second in charge of a kitchen.
26. In late August 2017 and September 2017 the Claimant did not attend workwas absent from work because of ill health or injury.
27. The Claimant was entitled to be paid for the period of absence to the extent of his accumulated personal leave credits.
28. On and between 6 February 2017 and 27 September 2017 the Claimant, in respect of this period of full time employment, accumulated 10 days of personal leave for each completed year of service with a pro rata accumulation for any part year of employment, for a total accumulation of 6.384 days paid personal leave.
29. The Claimant was paid for 35.59 hours of personal leave in August and September 2017.
30. The Claimant’s did not attend his rostered shift employment ceased on or about 27 September 2017 and did not return to work following this.
31. The Claimant was employed by the 1st Respondent for a period of approximately 7 years and 11 months.
32. The 1st Respondent did has not paidy the Claimant any pro rata long service leave pay.
33. On or about 19 December 2017 the Claimant requested the 2nd Respondent to provide him, in accordance with Fair Work Regulation 3.42, with copies of the Claimant’s time and wages records covering the period of his employment.
34. On or about 22 December 2017 the 2nd Respondent provided the Claimant with the payslip records that are in the Tender Bundle.
ISSUES
A. How much paid personal leave was the Claimant entitled to in respect of his absences because of illness or injury in August and September 2017?
B. Did the Claimant receive his paid personal leave entitlements?
C. Was the Claimant’s employment terminated by the Respondents or did he leave voluntarilycease attending work without notice to his employer?
D. What annual leave entitlements was Was the Claimant entitled to any annual leave entitlements on cessation of employment and did he receive them?
E. What long service leave entitlements was the Claimant entitled to on cessation of employment?
NON- TIME SPECIFIC ISSUES
A. Did the 1st Respondent keep, in respect of the Claimant, and for seven years or at all, employee records of the kind prescribed by the regulations?
B. Did the 1st Respondent ensure that copies of the Award and the National Employment Standards were made available to the Claimant?
C. Was the 2nd Respondent knowingly involved, within the meaning of section 550 of the FW Act, in any contravention of the FW Act or the Award by the 1st Respondent?

AGREED YES/NO
























AGREED YES/NO

















































































AGREED YES/NO















































AGREED YES/NO






























































AGREED YES/NO





















































































































































































































































































































































Schedule V: Exhibit 5