2026 WAIRC 00034
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA

CITATION
:
2026 WAIRC 00034



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
WEDNESDAY, 26 NOVEMBER 2025



DELIVERED
:
TUESDAY, 27 JANUARY 2026



FILE NO.
:
M 83 OF 2025



BETWEEN
:
ZIYU CHEN


CLAIMANT





AND





FLUFFY HORDE PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – small claim – whether claimant was an employee – whether intention to create legally binding contract – application and coverage of the Miscellaneous Award 2020 – failure to pay hourly rates applicable under award – contravention of s 45 – order for payment under s 545(3)
Legislation : Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Instrument : Miscellaneous Award 2020
Cases referred
to in reasons: : Bull v Rmbl Bxng Bondi Pty Ltd [2025] FWC 3069
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
EFEX Group Pty Ltd v Bennett  [2024] FCAFC 35; (2024) 330 IR 171
Result : Claim upheld
Representation:
Claimant : Self-represented
Respondent : Mr Z. Yang (director)

REASONS FOR DECISION
1 The claimant, Ziyu Chen, is seeking orders that the respondent, Fluffy Horde Pty Ltd (the Company), pay her $9,387.50 plus pre-judgment interest, for the Company’s failure to comply with the Fair Work Act 2009 (Cth) (FW Act).
2 Ms Chen elected for the proceedings to be dealt with under the small claims procedure set out in s 548 of the FW Act.
3 It is not in dispute that Ms Chen and the Company had an arrangement where Ms Chen would perform work for the Company and the Company would ‘help’ Ms Chen in various ways in return. It is not in dispute that Ms Chen undertook some duties for the Company. It is not in dispute that the Company provided Ms Chen with accommodation, in return for Ms Chen working for eight hours in any week. It is not in dispute that the Company paid Ms Chen for the time that she worked over and above eight hours a week.
4 However, the Company says that Ms Chen was not an employee, but rather, was a ‘volunteer’ who agreed to do work on an informal and flexible basis for the Company for mutual benefit. It says that Ms Chen worked flexibly, to suit her own purposes and in an honorary capacity, without any obligation to render service nor any entitlement to receive wages. The Company’s position is, in effect, that there was no common intention to create a legally enforceable bargain at all.
5 The determinative issue is this claim, then, is whether or not the Company employed Ms Chen. More specifically, was there a mutual intention to enter into a legally binding employment contract?
The Industrial Magistrates Court’s Jurisdiction
6 Under s 539 and s 540 of the FW Act, an employee may apply to an eligible State or Territory court for orders in relation to a contravention of s 45 of the FW Act, that is, the prohibition against contravening a term of a modern award, if the employee is affected by the contravention. Such application must be made within six years after the day the contravention occurred FW Act s 544.
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7 The Industrial Magistrates Court of Western Australia (IMC or Court) is ‘an eligible State or Territory court’ FW Act s 12.
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8 The IMC may order that an employer pay an amount to an employee if the IMC is satisfied the employer was required to pay the amount under the FW Act or a fair work instrument, and the employer has contravened a civil remedy provision by failing to pay the amount FW Act s 545(3).
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9 Ms Chen did not specify in her claim which award she alleged applied to her, nor what provisions of the award and FW Act she alleged had been contravened. However, she provided a table of calculations of the alleged underpayments and explained that her calculations were based on a Level 1 classification for the first three months of her employment, and a Level 2 classification thereafter.
10 The calculations she used as the casual and penalty rates of pay are those under the Miscellaneous Award 2020 as they were at the relevant times after 1 July 2024 The Award cl 11.1(a), cl 15.1 and cl 20.
. Accordingly, I have considered the claim on the basis that it is a claim for contravention of the Miscellaneous Award 2020.
11 The Award is a modern award under the FW Act and is a ‘fair work instrument’. Section 45 prohibits a person from contravening a modern award, and it is a civil penalty provision.
12 If Ms Chen is an employee, then she is a person affected by the alleged contraventions of s 45.
13 Ms Chen, as the claimant in these proceedings, carries the burden of proving her claim on the balance of probabilities.
Uncontentious Background
14 Ms Chen is a university student who came to Australia from China in 2024 to study at Curtin University.
15 Mr Yang is the Company’s Chief Executive Officer.
16 The Company operates a business of breeding dogs and cats for sale, kennelling, training and grooming dogs, as well as providing shelter and care for rescue animals.
17 The Company employed two managers, who the parties referred to as Harry and Monica. The Company also employed other individuals including individuals whose positions were described as ‘pet groomer’ and ‘sales representative.’
18 The Company had written employment contracts with at least some of its employees. It produced examples of its written employment contracts with its manager, a sales representative and a pet groomer Exhibit R1, exhibit R2 and exhibit R3.
. The written employment contracts state that ‘[a]ll pay conditions comply with the Fair Work Act 2009 and the applicable Award’ and that casual employees receive a 25% loading in addition to the specified hourly rate.
19 Ms Chen and Mr Yang were acquainted with each other before Ms Chen went to work for the Company at its premises in Southern River. They discussed arrangements for Ms Chen to work for the Company by messages over WeChat, and during at least one telephone call. The WeChat messages were in evidence before the Court, translated from Chinese to English by a Certified Translator Exhibit C3.
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20 The arrangement between the Company and Ms Chen was never reduced to a formal written contract like those referred to in [18] above.
21 Ms Chen’s evidence that her first day working for the Company was 1 November 2024 was not challenged, and was corroborated by the WeChat messages between her and Mr Yang Exhibit C3.
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22 While the arrangement was on foot, Ms Chen resided in accommodation provided to her by the Company, and, in the latter period of the arrangement, was given the use of Mr Yang’s car for her personal use.
23 On 10 March 2025 Ms Chen was involved in an accident while she was driving Mr Yang’s car, resulting in it being written off. She and Mr Yang entered into a written Settlement Agreement on 22 March 2025 by which Ms Chen agreed to pay Mr Yang $9,500 in two tranches of payments in respect of the damage to the car Exhibit C4.
. She made these payments on 19 and 23 March 2025 Exhibit C2.
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24 Ms Chen also caused some damage to a fence on the Company’s property, for which she agreed to pay $300 for the repairs.
25 The arrangement between Ms Chen and the Company ended on about 29 March 2025 when Ms Chen left of her own accord.
26 Ms Chen said that during the period from 1 November 2024 to 29 March 2025 the Company paid her $7,200 in cash, in total. Initially she was paid $16 net per hour, and later this was increased to $20 net per hour. Her evidence in this regard was not challenged.
The Nature of the Arrangement: Was Ms Chen an Employee?
Legislation and Legal Principles
27 Under s 46 of the FW Act, ‘[a] modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the modern award applies to the person.’ Conversely, a modern award does not give a person an entitlement unless the modern award applies to the person.
28 Section 47 stipulates when a modern award applies to an employee or employer:
47 When a modern award applies to an employer, employee, organisation or outworker entity
When a modern award applies to an employee, employer, organisation or outworker entity
(1) A modern award applies to an employee, employer, organisation or outworker entity if:
(a) the modern award covers the employee, employer, organisation or outworker entity; and
(b) the modern award is in operation; and
(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.
Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Modern awards do not apply to high income employees
(2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.
Modern awards apply to employees in relation to particular employment
(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.
29 Section 48 says:
48 When a modern award covers an employer, employee, organisation or outworker entity
When a modern award covers an employee, employer, organisation or outworker entity
(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.
Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Effect of other provisions of this Act, FWC orders or court orders on coverage
(2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:
(a) a provision of this Act or of the Registered Organisations Act;
(b) an FWC order made under a provision of this Act;
(c) an order of a court.
(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:
(a) a provision of this Act;
(b) an FWC order made under a provision of this Act;
(c) an order of a court.
Modern awards that have ceased to operate
(4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.
Modern awards cover employees in relation to particular employment
(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.
30 In these sections of the FW Act, ‘employee’ and ‘employer’ mean ‘national system employee’ and ‘national system employer’ respectively FW Act s 42.
.
31 The terms ‘national system employee’ and ‘national system employer’ are defined in s 13 and s 14(1) of the FW Act:
13 Meaning of national system employee
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.
14 Meaning of national system employer
(1) A national system employer is:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Note 1: Note 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).
Note 2: Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.
32 The terms ‘employer’ and ‘employee’ in s 13 and s 14 have their ordinary meaning.
33 There is no doubt that the Company is a constitutional corporation. Therefore, the issue of whether Ms Chen was an employee must be determined according to the ordinary meaning of that term.
34 Section 15AA of the FW Act, from 26 August 2024, sets out the statutory test for when a person is an employee:
15AA Determining the ordinary meanings of employee and employer
(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.
(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:
(a) the totality of the relationship between the individual and the person must be considered; and
(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.
Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
…
35 The effect of s 15AA was recently described by Deputy President Cross of the Fair Work Commission in Bull v Rmbl Bxng Bondi Pty Ltd [2025] FWC 3069 at [43] - [44]:
[43] Consequently, for the purpose of the Act, in determining the issue of whether a person is an employee or independent contractor, the Commission is required to ascertain the real substance, practical reality and true nature of the relationship between the parties. This adopts the approach described in Hollis:
It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing ‘the totality of the relationship’ between the parties; it is this which is to be considered.
[44] The approach to be taken under s. 15AA adopts the multi-factorial test that was eschewed in Personnel Contracting. The multifactorial test was summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Do Rozario (Jiang Shen), wherein the Full Bench described the focus of the enquiry in Hollis as whether the person carries on a trade or business of his or her own or is working in the business of another, the nature of the work performed and the manner of its performance, and the terms of the contract between the parties. Various indicia may be considered. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, whether they provide tools and equipment, whether the work can be delegated, whether the worker is remunerated by periodic wages or salary or by reference to completion of tasks, and whether the worker is presented to the world at large as an emanation of the putative employer’s business. (citations omitted)
36 The test as referred to by the Deputy President is usefully deployed when there is no dispute about whether there was a contractual arrangement, and the question is whether the nature of the contractual arrangement is of an independent contractor or an employee. Here, the issue is whether there was a contractual arrangement at all, that is, whether there was a mutual intention to enter into a legally binding contract.
37 The requirement that there be a mutual intention is ‘the first element essential to the existence of any contract’ Sappideen et al, Mackens Law of Employment (9th ed, 2022) (Mackens Law of Employment) at [4.50].
. Work can be performed for a variety of reasons including for work experience, family relationships and charitable purposes, without becoming a legally enforceable arrangement.
38 At [4.50] of Mackens Law of Employment, the learned authors state (citations omitted):
…But there are no prescribed rules (or presumptions) which define classes of case where there will be no intention to create a legal relationship. It is to be viewed objectively, having regard to the words and conduct of the parties.
It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statement and actions happened…It is not a search for the uncommunicated subjective motives or intentions of the parties.
In the employment context, if the putative employee is subject to control relating to the work, wages and leave entitlements are paid, superannuation contributions are made, and taxation is deducted, it would be difficult to argue contrary to the objective facts that there is no intention to create a legal relationship. Conversely if a person assists in an honorary capacity without expectation of wages and without any obligation to render any service, this suggests that there is no intention to enter into a legal relationship.
39 In law, a valid contract may be formed, or its existence and terms inferred, by informal conduct. The informality of the parties’ dealings, and the fact that the arrangement was not reduced to a formal written contract, is not determinative of the absence of a contract Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 (Branir), at [369].
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40 The leading authority on this point is Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95. The relevant principle was stated by Gaudron, McHugh, Hayne and Callinan JJ in that case, at [24]:
‘It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty’. To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet ‘[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts’. (citations omitted)
41 At [25] the plurality stated that whether there was ever an intention to create contractual relations is not the subject of a prescriptive rule, but rather requires an objective assessment of the status of the alleged parties, the subject matter of the agreement, their relationship to one another and other surrounding circumstances:
[T]he search for the ‘intention to create contractual relations’ requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour). The circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. (citations omitted)
42 Post contractual conduct by the parties may be taken into consideration in determining whether a contract was formed: see EFEX Group Pty Ltd v Bennett ; per Lee J at 189 [58] citing the observations of Murphy JA (with which Pullin and Newnes JJA agreed) in Fazio v Fazio [2012] WASCA 72at [193] that:
...Such conduct may be considered for the purpose of inferring not only whether a binding agreement had been reached, but also its subject matter and the identification of its necessary terms…
Ms Chen’s Evidence
43 The first WeChat message between Ms Chen and Mr Yang in evidence is dated 24 October 2024. The English translation is as follows:

44 The following day, 25 October 2024, Ms Chen sent a message to Mr Yang confirming her interest ‘after careful consideration’ in ‘trying my hand in management and promotional work.’ She set out her relevant prior experience and skills. Her message concludes:
I hope to create a warm and welcoming environment for your kennel and to work together with you to achieve greater goals.
Thank you!
45 A few minutes later, Mr Yang and Ms Chen exchanged messages about the possibility of the Company sponsoring Ms Chen if she studied certain animal care related subjects.
46 In Ms Chen’s further messages to Mr Yang of 25 October 2024, she informed him that she would finish her exams at the end of October, could start work in November, and would vacate her current lease on 30 November.
47 Mr Yang responded👌🏼.
48 The next series of messages related to ‘time and expenses’ and a work trial. The key parts are:

49 As can be seen from the WeChat records, Mr Yang called Ms Chen on 31 October 2024 following her enquiry about a contract. Ms Chen said that during this call Mr Yang told her that he did not have an employment contract but if she wanted one, she could prepare it herself. She did not know how to do that. No written contract was ever produced.
50 Ms Chen’s evidence was that her first day at the kennel was 1 November 2024. She was not paid for that day, but was provided with a free meal.
51 On 3 November 2024, Harry invited Ms Chen to join the ‘Fluffy Employee Group’ WeChat group. A sample of messages from the group chat show that it was used for Harry and Monica to communicate with those in the group about the welfare of particular animals, who would be responsible for what tasks and when. A series of ‘Job Content’ documents which set out a sequence of tasks to be completed during ‘Morning Shift: 7am – 2pm’, ‘Afternoon shift staff for puppies: 9am – 4pm’, ‘Afternoon shift assistant 9:00am – 4:00pm’ and ‘Shift arrangement for work for accommodation’ were shared on this group chat.
52 Ms Chen worked for eight hours each week, without any payment, in return for the provision of accommodation. It was only if she worked more than eight hours per week, that she received any payment.
53 She said that how often she worked depended on the availability of other people who also worked at the kennel. When she was given a shift, it was usually for six hours. A weekly timetable or roster was shared by Harry or Monica, via the WeChat group.
54 When working, Ms Chen did things like feeding the puppies, changing their water, cleaning out their cages and changing the litter, letting the puppies out of their cages to play, taking photos of the puppies and bringing the puppies back into the cages again. Sometimes she was required to administer medicines. She also greeted customers who came to the kennel to pick up dogs.
55 On an unknown date in November 2024, Mr Yang sent Ms Chen a WeChat message. According to the English Translation, the message was asking whether Harry had given Ms Chen ‘This week’s salary.’ Ms Chen confirmed she had received it. Exhibit C3, message 15.
Then on 17 November 2024, Mr Yang asked Ms Chen for her bank account details saying ‘I’ll pay you the salary.’ Ms Chen provided her pay ID. The following day, 18 November 2024, Mr Yang messaged that he would wait for Ms Chen at the kennel and give her cash. Exhibit C3, message 16.

56 On 18 November 2024, there was the following WeChat exchange:

57 On 18 February 2025 Ms Chen was in China on holidays. She was due to return to Perth that day. She messaged Mr Yang to ask if he would lend her his car, as she was about to start back at university, and Curtin was a long distance from the kennel. She indicated that if Mr Yang could not lend the car, Ms Chen would move closer to the campus. Mr Yang agreed to arrange a car for Ms Chen.
58 Amongst the WeChat messages Ms Chen provided to the Court are instances where Ms Chen has queried her hours and pay with the managers, Monica and Harry, because payment had been late. These show that the managers required Ms Chen to work at least eight hours per week for her accommodation, that they scheduled shifts based on her availability and the business’s requirements and that she was directed to take lunch breaks limited to 30 minutes. Monica’s messages refer to ‘last week’s pay’, ‘this week’s pay’, ‘salary’ and ‘weekly salary’ to be paid for hours worked.
59 The payments Ms Chen received from the Company were calculated on the basis of a flat hourly rate for the number of hours she worked each week.
Mr Yang’s Evidence
60 Mr Yang emphasised that he had known Ms Chen and had a few conversations with her before raising the prospect of her working at the kennel. He said that what he initially discussed with Ms Chen was that if she was willing to come and help at the kennel, the Company would help her later, in the context of her studying in Australia. However, he was not interested in formally employing her, as she did not have any relevant background, prior experience or qualifications, and was not capable of performing the role the Company required of employees.
61 In cross-examination, Mr Yang accepted that he did not expressly state to Ms Chen that she would be working as a volunteer, but he thought that she understood that was the position.
62 Mr Yang explained that Ms Chen only worked when it suited her. She did not work on a full-time basis and she was not forced to work for eight hours. He said she only did ‘very small jobs’ like helping to check on the dogs, making sure the dogs were safe and that the dogs had water. Mr Yang agreed that Ms Chen assisted with the tasks listed in the Job Content documents shared by Harry and Monica in the WeChat group chat, but said that these tasks were not very difficult, and Ms Chen’s role was to assist the other employees who were primarily responsible for performing the tasks. He said that she needed to be supervised and guided by qualified and experienced employees in all tasks.
Conclusion About the Arrangement
63 Objectively assessed, the communications between Ms Chen and Mr Yang in the lead up to 1 November 2024 indicate an intention to create an employment relationship. That is because the communications:
(1) Occur in a context where there was no existing relationship between the parties which would explain why Ms Chen would perform work for the Company;
(2) are initiated by Mr Yang’s statement ‘You can come work for me’ to which Ms Chen seeks details about what she needs to do Exhibit C3, message 1.
;
(3) involve Ms Chen detailing her relevant qualifications and experience, akin to an application for employment Exhibit C3, message 2.
;
(4) include Mr Yang referring to remuneration ‘during the internship period, the hourly wage is 16’ Exhibit C3, message 4.
;
(5) include Mr Yang referring to 5% sales commission Exhibit C3, message 4.
;
(6) include Ms Chen asking when she will sign ‘the contract’ Exhibit C3, message 6.
.
64 I also accept Ms Chen’s evidence that after she messaged Mr Yang about signing a contract, she had a telephone discussion with him, in which he invited her to supply a written contract. Ms Chen’s evidence in this regard was not challenged. Mr Yang accepted there was a telephone conversation following Ms Chen’s message about the contract but gave no alternative version of what was said. A discussion about a contract is strongly indicative of an intention to create legal relations.
65 Mr Yang’s subjective intention that there not be a formal employment relationship is not relevant to the assessment of whether an employment contract was formed. Nor is it relevant that Mr Yang considered Ms Chen was unqualified to perform particular roles as employee, or that she required supervision.
66 The parties’ conduct after 1 November 2024 is also consistent with the creation of a casual employment contract. In particular,:
(a) Ms Chen performed work under the direction of the Company’s managers and other employees;
(b) Mr Yang made reference to a probationary period. A probationary period would be unnecessary if no legally binding contract existed;
(c) Harry and Monica corresponded with Ms Chen about payment of ‘wages’ and ‘salary’;
(d) Ms Chen was rostered to work and took meal breaks as directed; and
(e) Ms Chen was paid for hours worked in excess of eight hours per week, at a flat rate based on the hours she worked.
67 On the evidence before me I am comfortably satisfied that an employment relationship was formed.
Did the Miscellaneous Award 2020 apply to the Company and Ms Chen?
68 The Award’s coverage is set out in cl 4:
4. Coverage
4.1 Subject to clauses 4.2, 4.3, 4.4 and 4.5 this award covers employers throughout Australia and their employees in the classifications listed in clause 15—Minimum rates who are not covered by any other modern award.
4.2 The award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
4.3 The award does not cover employees excluded from award coverage by the [FW Act].
4.4 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.5 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.6 This award covers any employer which supplies on-hire employees in classifications set out in clause 12—Classifications and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.
4.7 This award covers employers which provide group training services for apprentices and trainees under this award and those apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
69 Neither party identified any other award, modern enterprise award, enterprise instrument, State reference public sector modern award, or State reference public sector transitional award which covered the Company and Ms Chen.
70 There is no dispute that Ms Chen was neither a managerial nor a professional employee.
71 Ms Chen was not excluded from award coverage by the FW Act.
72 The Award’s listed classifications in cl 15.1 are Level 1 through to Level 4.
73 These classifications are described in cl 12:
12. Classifications
12.1 A description of the classifications under this award is set out below.
(a) Level 1
An employee at this level has been employed for a period of less than 3 months and is not carrying out the duties of a level 3 or level 4 employee.
(b) Level 2
An employee at this level has been employed for at least 3 months and is not carrying out the duties of a level 3 or level 4 employee.
(c) Level 3
An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.
(d) Level 4
An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.
74 Mr Yang agreed that if Ms Chen was formally engaged as an employee (which he denied), the Award would apply.
75 I am satisfied that at all times between 1 November 2024 and 31 January 2025, Ms Chen was an employee to whom the Award applied and was entitled to be paid at the Award Level 1 rate of pay. From 1 February 2025 to 29 March 2025 Ms Chen was an employee to whom the Award applied and was entitled to be paid at the Award Level 2 rate of pay.
What Amount was the Company Required to Pay?
76 Ms Chen provided a table setting out her calculations of what she claimed she was entitled to be paid applying the Award Level 1 rate of pay, with casual loading and weekend and public holiday penalties to 31 January 2025 and the Award Level 2 rate of pay with casual loading and weekend penalties from 1 February 2025 to 29 March 2025. Exhibit C1.
Her table also showed the amounts she was actually paid in cash. Her calculations are based on shifts of six hours, and the table lists the days each shift was worked.
77 Ms Chen confirmed in her evidence that the dates listed in the table are the dates that she worked.
78 Based on Ms Chen’s table, she worked a total of 65 shifts or 390 hours and was entitled to receive $13,086.42 gross (less applicable tax) but was paid $7,200.00 net.
79 The total amount Ms Chen claims she was underpaid is $9,387.50. However, to arrive at this amount, Ms Chen has added a further 148 hours of ‘accommodation work.’ When asked about what shifts she worked, Ms Chen confirmed that the dates listed in her table were the dates that she worked. The ‘accommodation amount’ was added to her calculations because of something she was advised by the Fair Work Ombudsman Exhibit C1, ts 12.
. However, the ‘accommodation work’ amounts were not itemised by days or hours worked, and there was no evidence that Ms Chen worked any hours other than those listed in the table.
80 If the ‘accommodation work’ amounts are not included, the underpayment amount is $5,886.42.
81 Ms Chen’s calculation of the Company’s underpayment does not make provision for any deduction for the benefit of the accommodation provided to her. When Ms Chen agreed to work for the Company, she also agreed to pay for weekly accommodation by working for the Company for eight hours at the rate of $16 per hour. In effect, she agreed to pay $128 per week for accommodation.
82 Section 324(1) of the FW Act provides that an employer may deduct an amount from an amount payable to an employee in accordance with s 323(1) if:
(a) The deduction is authorised in writing by the employee and is principally for the employee’s benefit.
83 Section 324(2) of the FW Act says:
(2) An authorisation for the purposes of paragraph (1)(a):
(a) must specify:
(i) for a single deduction—the amount of the deduction; or
(ii) for multiple or ongoing deductions—whether the deductions are for a specified amount or amounts, or for amounts as varied from time to time; and
(aa) must include any information prescribed by the regulations; and
(b) may be withdrawn in writing by the employee at any time.
84 Regulation 2.12A(2) of the Fair Work Regulations 2009 (Cth) (FW Regulations) says:
Multiple or ongoing deductions
(2) For the purposes of paragraph 324(2)(aa) of the Act, a written authorisation by an employee under subparagraph 324(2)(a)(ii) of the Act for multiple or ongoing deductions must also include the following:
(a) the purpose of the deductions;
(b) if the deductions are for a specified amount or amounts—those amounts;
(c) either:
(i) the dates on which the deductions are to be made; or
(ii) the date after which, and the frequency with which, the deductions are to be made;
(d) the name of the person to whom the amounts of the deductions are to be given.
85 In the written WeChat exchanges between Ms Chen and Mr Yang, Harry and Monica, it is apparent that Ms Chen agreed to work eight hours per week for accommodation. Exhibit C3, messages 10, 13, 14.
On 3 November 2024, Mr Yang said in a message that the ‘work for accommodation’ would start ‘next week’ to which Ms Chen replied ‘Okay, bro.’ Exhibit C3, message 62.

86 The written authorisation given by Ms Chen obviously included the purpose of the deduction, being for accommodation, and the deductions were clearly for Ms Chen’s benefit, as she received the accommodation.
87 However, some essential information is missing from the written exchanges. They do not specify the date after which, and the frequency with which, the deductions were to be made, as required by the FW Regulations. Nor do the written exchanges specify the name of the person to whom the deductions were to be given, as required by the FW Regulations.
88 Had there been evidence of a written authorisation from Ms Chen complying with the FW Act and the FW Regulations, the Company would have been entitled to deduct $128 per week from any wages due to Ms Chen. Over the period 1 November 2024 to 29 March 2025, a period of 21 weeks, or $2,688 worth of deductions might have been able to be made.
89 Under s 545(3) of the FW Act, the Court may order an employer to pay an amount to, or on behalf of an employee of the employer if the Court is satisfied that:
(a) The employer was required to pay the amount under this Act or a fair work instrument; and
(b) The employer has contravened a civil remedy provision by failing to pay the amount.
(emphasis added)
90 Because the Company has not established it was entitled under s 324(1) of the FW Act to make deductions for accommodation, the agreed accommodation cost cannot be brought into account in determining the amount the Company was required to pay to Ms Chen under the Award.
91 Therefore, the amount for the purpose of s 545(3) is $5,886.42 gross.
92 The effect of Ms Chen’s evidence is that she was paid $7,200 as a gross amount, without any tax being withheld. It may be that as a result of my findings that Ms Chen was an employee, the Company will be required to withhold tax on the total amount of $13,086.42 that was payable to Ms Chen.
93 The claimant has also applied for pre-judgment interest. Under s 547 of the FW Act, the Court must include an amount of interest on the sum ordered, unless good cause is shown to the contrary. Ordinarily, I would apply the pre-judgment interest rate of 8.35% in accordance with the Federal Court’s ‘Interest on Judgments’ Practice Note. However, because Ms Chen received the benefit of cash payments without the deduction of income tax, and because she received the benefit of accommodation which, as a result of my orders, she has not paid what she agreed to pay, in this case I would apply a 3% interest rate from the date the employment ended until the date of judgment. On my calculation, the interest payable is $147.
Orders and Disposition
94 For the above reasons, I am satisfied that the Company was required to pay $5,886.42 less applicable tax to Ms Chen and that the Company contravened s 45 of the FW Act, being a civil penalty provision, by its failure to pay this amount. Accordingly, I will order that the respondent pay to the claimant $5,886.42 less any tax that is required to be withheld.
95 I will also order that, pursuant to s 547 of the FW Act, the respondent is to pay to the claimant interest on the judgment sum at 3% per annum from 29 March 2025 to the date of judgment in the amount of $147.




R. COSENTINO
INDUSTRIAL MAGISTRATE