2026 WAIRC 00044
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00044



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 14 JANUARY 2026



DELIVERED
:
FRIDAY, 30 JANUARY 2026



FILE NO.
:
M 121 OF 2025



BETWEEN
:
DAWEI SHI


CLAIMANT





AND





CHEUNG BROTHERS (WA) PTY LTD ABN: 67 630 344 491


RESPONDENT

CatchWords : INDUSTRIAL LAW – Small claims procedure under the Fair Work Act 2009 (Cth) – Failure to pay an amount under a modern award – Restaurant Industry Award 2020 [MA000119] – Whether the claimant was a casual employee – Whether the claimant was on an unpaid work trial – Applicable rate of pay as a chef
Legislation : Fair Work Act 2009 (Cth)
Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Restaurant Industry Award 2020
Cases referred
to in reasons: : Fair Work Ombudsman v Joys Child Care Ltd [2019] FCCA 3356
Xie v Yang [2019] SAET 38
Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140
Barbour v Memtaz Derbas t/a Derbas Lawyers [2021] FWC 1718
Result : The claim is proven
Representation:
Claimant : In person
Respondent : Mr K. Cheung (Director) and Ms L. Low (Director)


REASONS FOR DECISION
1 On 23 September 2025, Dawei Shi (the claimant) lodged an originating claim, electing to apply the small claims procedure pursuant to s 548 of the Fair Work Act 2009 (Cth) (FWA), alleging that Cheung Brothers (WA) Pty Ltd (the respondent) failed to pay him $146.22 which was required to be paid under the Restaurant Industry Award 2020 [MA000119] (the Award) when he worked as a chef for four hours on 17 July 2025 at the Hong Kong Tea Café (the Claim).
2 The claimant alleges that in failing to pay an amount required to be paid under the Award, the respondent has contravened the FWA. The claimant does not specify the section of the FWA contravened, but it is reasonable to infer in all of the circumstances that it is s 45 of the FWA.
3 The respondent denies the Claim.
4 The issue in dispute is whether the claimant was employed as a casual chef for four hours on 17 July 2025 or was undertaking a work trial. It is not disputed the claimant worked at the respondent’s restaurant, Hong Kong Tea Café, on 17 July 2025.
5 Schedule I of these reasons outline the jurisdiction of the practice and procedure of the Industrial Magistrates Court of Western Australia (IMC).
6 The claimant relied upon his witness statement lodged on 5 January 2026 Exhibit 1.
and on his oral evidence. The respondent relied upon the witness statement of Li Hang (Kathleen) Low (Ms Low), Manager, Accounts and Operations, lodged on 7 January 2026 Exhibit 2.
and on her oral evidence.
7 There are three possible pathways in the Claim, only one of which enables the IMC to make an order under s 545(3) of the FWA.
8 On 17 July 2025, if the claimant is found to have been:
(a) on an unpaid work trial, the Claim fails;
(b) on a paid work trial, the Claim also fails as a small claim under the FWA albeit the claimant may commence a minor case claim in the Magistrates Court of Western Australia (the outcome of which will be for determination in that jurisdiction); or
(c) employed by the respondent as a casual employee, the Claim is successful where an amount was required to be paid by the respondent to the claimant under s 548(1A) of the FWA (subject to the application of the Award) and s 545(3) of the FWA applies.
9 That is, the only pathway to a successful claim in this case is for the claimant to prove on the balance of probabilities that he was employed by the respondent as a casual employee and the Award applies to and covers his employment by the respondent. In that case, the IMC may then make an order under s 545(3) of the FWA when read with s 548(1A) of the FWA.
10 Pursuant to s 548(3) of the FWA, the IMC is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
Undisputed Facts
11 The respondent is an Australian proprietary company limited by shares, registered pursuant to the Corporations Act 2001 (Cth) and operates the restaurant, Hong Kong Tea Café. The respondent is a constitutional corporation within the meaning of that term in s 12 of the FWA and is a national systems employer within the meaning of that term in s 14(1)(a) of the FWA.
12 Whether the claimant is a casual employee who was employed by the respondent and is a national systems employee within the meaning of that term in s 13 of the FWA is one of the principal issues in dispute.
13 If the claimant is a casual employee who was employed by the respondent as a chef at the Hong Kong Tea Café, I am satisfied that the Award applied to and covered the claimant’s employment by the respondent pursuant to cl 4.1 and Schedule A of the Award.
14 In 2021, the claimant obtained a Certificate IV in Commercial Cooking from a TAFE in Brisbane. He has been cooking for about seven years.
15 On a date a few days prior to 17 July 2025, the claimant answered a post on ‘WeChat’, an application similar to Facebook or WhatsApp used by predominantly Chinese-speaking people, advertising for a Grill Chef with a telephone number to work between 5.00 pm and 9.00 pm.
16 The claimant contacted the telephone number and spoke to ‘Kevin’ (the parties accept this was Kevin Cheung, director) on around 15 July 2025. On 16 July 2025, the claimant and Kevin met face to face and Kevin told him to come and work at the Hong Kong Tea Café on 17 July 2025.
17 The claimant attended Hong Kong Tea Café on 17 July 2025 at 5.00 pm and worked until 9.00 pm. There were approximately four other people working in the kitchen at the same time, including a Head Chef, one or two other chefs and a kitchen hand.
18 At the end of the shift, the Head Chef told the claimant that Kevin would contact him the following day, but no one contacted him.
19 The claimant and Kevin exchanged text messages on 18 and 19 July 2025 as follows: Exhibit 2, text messages annexed to the witness statement.

The claimant: Hello, boss. Was yesterday’s work trial okay?
The claimant: May I please ask you to return my call? Thank you.
Kevin Cheung: I am in a meeting. I will call you back shortly.
The claimant: Haha, boss. If it is not required, just please settle the trial work wages. Thank you.
The claimant: Hi. I have registered my mobile number as a PayID. Next time you pay me, please send the money to my mobile number…
The claimant: Boss, this way of doing things is really not appropriate. You also do not reply. Instead, it turns out to be my fault.
Kevin Cheung: I will arrive at 6 o’clock.
The claimant: I cannot wait until 6.00 pm. You can arrange for another person for me.
The claimant: Thank you for talk about my pay. As discussed, Have to pay me 4 hours Trial (25/07/2025 1700-2100) salary.
Kevin Cheung: I was told you so many times already come and pick up your money is you don’t come to pick. And I told you already you have to give me the details you don’t give me so you say that is my problem? [sic]
Disputed Facts
20 The claimant states that during the face-to-face conversation, Kevin told him he would be paid if he came to work on 17 July 2025 but neither of them mentioned the hourly rate or the total amount that would be paid.
21 When he went to the Hong Kong Tea Café at 5.00 pm, other staff gave him information about how to prepare each dish on the plate and where the food was. However, when the order came in, the claimant cooked the order. He said he worked on the grill by himself. He did not speak to Kevin or Ms Low during the shift and they were not present in the kitchen. The claimant said that on 17 July 2025, he cooked the orders as they came in and performed the duties of a Grill Chef.
22 The other chefs did not tell him how to cook the food, only how to garnish or decorate the food on the plate.
23 The hourly rate claimed by the claimant is $32.31 but he said that he is paid as a Level 5 casual chef at other restaurants and the pay rate is $36.66.
24 In cross-examination, the claimant said that he is capable of cooking and serving and that he is a Level 5 chef at other restaurants. He said there was nothing special in the preparation of the food at the Hong Kong Tea Café, but he did need to be shown where the food was kept and the garnishing on the plate because it was his first shift at the restaurant.
25 The claimant said if his work was unprofessional, then he could be ‘let go after one hour’.
26 The claimant agreed he was supervised by the Head Chef but only before service commenced whereas when the service started, he did the cooking by himself.
27 The claimant said he was a chef and should not have to go begging for payment. He said there were restaurants that paid cash for the first shift and then contract terms were discussed after. He said if the employer wanted information for payment, the employer should let him know what it is.
28 Ms Low confirmed Kevin posted recruitment information on WeChat for ‘a few positions’ at the Hong Kong Tea Café. On 17 July 2025, the claimant was the only person who attended but others attended over four to five days.
29 Ms Low said that the claimant came at 5.00 pm for a ‘work trial’ to see if he could work on the grill while the Head Chef supervised him. While she was at the restaurant, neither she nor Kevin supervised the claimant.
30 The Hong Kong Tea Café is open Tuesday to Sunday from 11.00 am to 3.00 pm and 5.00 pm to 9.00 pm.
31 While Ms Low agreed the Head Chef said that Kevin would speak to the claimant, she said Kevin had probably forgotten to do so.
32 The next thing was the claimant wanting to be paid for working at the restaurant. Ms Low said they had no intention not to make the payment, but they needed to do so properly.
33 The Head Chef reported back to her that the claimant could not be classified as a chef, so she wanted to pay him as a Level 1 kitchen hand. Ms Low maintained the claimant was on a work trial and not an employee.
34 In cross-examination, Ms Low said that Kevin did not tell her when the claimant provided his bank details, and that Kevin did not reply in time.
35 The Head Chef was not called to give evidence about the claimant’s level of professionalism because the respondent did not want to pay for him to be away from work. In any event, Ms Low said that the claimant was not suitable for the position, not that he was unprofessional.
36 The Head Chef reported to her that the claimant could not handle the work independently.
Findings of Disputed Facts
37 The witnesses gave evidence to the best of their ability and were truthful.
38 However, Ms Low’s evidence was based on what others told her rather than her own observations or direct involvement in any conversation. Consequently, her evidence is given less weight in my assessment and determination.
39 The respondent could have called Kevin Cheung to give evidence about his conversations with the claimant, and the Head Chef to give evidence about the kitchen supervision. It chose not to do so, and there is no reason to doubt the claimant’s account of those conversations or the work he performed in the kitchen.
40 Accordingly, I find that the claimant attended Hong Kong Tea Café on 17 July 2025 at 5.00 pm in response to a post for the recruitment of chefs and kitchen hands on WeChat posted by Kevin Cheung.
41 I also find that the nature of the conversation on 16 July 2025 between the claimant and Kevin Cheung was superficial and lacked any detail but did include Kevin Cheung saying the claimant would be paid for the work he did. This included working as a Grill Chef on 17 July 2025 between 5.00 pm and 9.00 pm. The amount to be paid was not discussed.
42 However, I also accept, consistent with the content of the text messages sent by the claimant on 18 and 19 July 2025, there was some understanding between the claimant and Kevin Cheung that the claimant would be assessed during the work on 17 July 2025, albeit I accept the claimant’s evidence that Kevin Cheung said the claimant would be paid to do the work. That is, I do not accept that the claimant and Kevin Cheung agreed the claimant would work at Hong Kong Tea Café, unpaid, for four hours on 17 July 2025, notwithstanding the claimant was being assessed during the shift.
43 I find that other than being given some preliminary information about how to present the food and where food was located in the kitchen, the claimant otherwise cooked any food orders on the grill without supervision from other staff members, including the Head Chef.
44 I accept the claimant followed up being paid for the work expecting to be paid ‘cash’ in a similar manner as he had been paid at other restaurants before determining any future work. To that end, again, the text messages on 18 and 19 July 2025 are consistent with the claimant’s oral evidence.
45 I find the respondent adopted a similar process for other applicants in response to the same recruitment information on WeChat.
Determination
46 There is limited, if any, case law in Australia on unpaid work trials. However, guidance from cases involving work experience or unpaid internships may assist (see Fair Work Ombudsman v Joys Child Care Ltd [2019] FCCA 3356, Xie v Yang [2019] SAET 38 and Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140 at [6] to [8]).
47 These cases highlight that where the objective reality of the relationship may be one of employment, the description given by one or both parties may be of less, or no, relevance. Further, the fact that a worker may be acquiring skills or experience may also be of limited relevance.
48 The FWA specifically recognises one category of unpaid work experience namely ‘vocational placement’, which is defined in s 12 to mean a placement that is undertaken as a requirement of a legally recognised education or training course and is without remuneration. This type of unpaid work experience does not apply to the Claim.
49 The factors identified in Barbour v Memtaz Derbas t/a Derbas Lawyers [2021] FWC 1718 at [70] (Deputy President Binet), which distinguish genuine work experience from employment, can also be applied when determining whether a worker is participating in a bona fide unpaid work trial or is in fact performing (casual) employment, including:
(a) The placement is mainly for the benefit of the person rather than the business.
(b) The periods of placement are relatively short.
(c) The person is not required to or expected to do productive work.
(d) There is no significant commercial gain or value for the business derived out of the work performed by the person.
50 To this, the following may also be relevant when assessing whether the worker is undertaking a bona fide work trial:
(a) the primary reason for the engagement was to assess the person’s skills and possible suitability for the work; and
(b) the period of arrangement was no longer than necessary to assess the person's skills or possible suitability for the work.
51 Additionally, from August 2024, amendments to the FWA are also relevant. Section 15AA of the FWA provides:
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.
52 Section 15A of the FWA provides:
Meaning of casual employee
General rule
(1) An employee is a casual employee of an employer only if:
(a) the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
(b) the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.
Indicia that apply for purposes of general rule
(2) For the purposes of paragraph (1)(a), whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work is to be assessed:
(a) on the basis of the real substance, practical reality and true nature of the employment relationship; and
(b) on the basis that a firm advance commitment can be in the form of the contract of employment or, in addition to the terms of that contract, in the form of a mutual understanding or expectation between the employer and employee not rising to the level of a term of that contract (or to a variation of any such term); and
(c) having regard to, but not limited to, the following considerations (which may indicate the presence, rather than an absence, of such a commitment):
(i) whether there is an inability of the employer to elect to offer, or not offer, work or an inability of the employee to elect to accept or reject work (and whether this occurs in practice);
(ii) whether, having regard to the nature of the employer's enterprise, it is reasonably likely that there will be future availability of continuing work in that enterprise of the kind usually performed by the employee;
(iii) whether there are full - time employees or part - time employees performing the same kind of work in the employer's enterprise that is usually performed by the employee;
(iv) whether there is a regular pattern of work for the employee.
(3) To avoid doubt:
(a) for the purposes of paragraph (2)(b), a mutual understanding or expectation may be inferred from conduct of the employer and employee after entering into the contract of employment or from how the contract is performed; and
(b) the considerations referred to in paragraph (2)(c) must all be considered but no single consideration is determinative and not all considerations necessarily need to be satisfied for an employee to be considered as other than a casual employee; and
(c) a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time (including for reasonable absences such as for illness, injury or recreation).
53 The exceptions to the general rule in s 15A(4) of the FWA do not apply to the claimant.
54 In the claimant’s case, there are factors which weigh in favour of the claimant being on a paid work trial at the Hong Kong Tea Café and there are factors which weigh in favour of the claimant being a casual employee.
55 The factors that weigh in favour of the claimant being on a paid work trial include the period being short in duration, that is, one shift at Hong Kong Tea Café, and one shift may be no more than is necessary to assess a person’s suitability and skill to be a chef. In addition, there appears to be some understanding by the claimant that he would be assessed by the respondent during the shift on 17 July 2025.
56 The factors that weigh against the claimant being on a paid work trial and being employed by the respondent as a casual employee on 17 July 2025 include:
(a) the claimant responded to a post for the recruitment of a Grill Chef between the hours of 5.00 pm and 9.00 pm. The recruitment did not otherwise indicate a work trial or interview process;
(b) the conversation between the claimant and Kevin Cheung was superficial where Kevin Cheung told the claimant to come to the Hong Kong Tea Café the next day between 5.00 pm and 9.00 pm. There was some reference to the claimant being assessed during this time;
(c) the purported assessment went for the whole of the shift during the restaurant’s opening hours; and
(d) the respondent undertook limited supervision of the claimant’s work during the purported assessment period; that is beyond the claimant being given some introductory explanations by the Head Chef about the plating up of the food and where food was stored, the claimant otherwise cooked on the grill the orders as required independently. He did so in conjunction with other chefs in the kitchen.
57 In those circumstances, I do not accept the primary reason for the claimant’s engagement was to assess his skills and possible suitability for the work. There was no apparent benefit to the claimant in carrying out the work, beyond his expectation that he would be paid, and, on his evidence, any future shift hours were convenient where he was undertaking other studies. On the other hand, the respondent obtained the services of another chef for the evening cooking orders on the grill consistent with its post on WeChat to recruit a chef who could do so. In that sense, the respondent obtained value from the claimant’s work.
58 Of some concern is that the respondent appears to have repeated this practice with other prospective applicants sourced through the same online recruiting platform.
59 Accordingly, when considered objectively and having regard to the real substance and practical reality of the claimant’s engagement, I am not satisfied that the claimant was engaged by the respondent to work at the Hong Kong Tea Café on a paid work trial. I arrive at this finding notwithstanding the short duration of the shift and the claimant’s text message to Kevin Cheung asking how he went on the work trial.
60 In my assessment, the real substance and practical reality of the claimant’s engagement by the respondent was that he worked as a Grill Chef at the Hong Kong Tea Café on 17 July 2025 between 5.00 pm and 9.00 pm. While the respondent may have observed his suitability and skills during that shift, such observation was merely ancillary to the claimant’s performance of actual work. Further, the text message the following day from the claimant to Kevin Cheung suggested the possibility of further work, subject to agreement between the parties. The nature of the work undertaken by the claimant was consistent with the duties performed by other kitchen staff and aligned with the type of work ordinarily carried out in a restaurant on a casual basis. It was consistent with the post on WeChat where the respondent sought to recruit someone to perform the work.
61 Finally, the work performed by the claimant on 17 July 2025 falls within the scope of the Award and is work ordinarily undertaken by casual employees, including chefs or cooks.
62 I find that on 17 July 2025 from 5.00 pm to 9.00 pm the claimant was employed by the respondent pursuant to an oral contract as a casual chef to work at the respondent’s restaurant, Hong Kong Tea Café.
63 That is, I find the claimant has proven the third pathway that he was employed by the respondent as a casual employee.
Payment
64 Where the respondent employed the claimant as a casual chef, it was required to pay him in accordance with the Award.
65 Clause 11.4 of the Award provides:
An employer must pay a casual employee at the end of each engagement unless the employer and the employee have agreed that the pay period of the employee is either weekly or fortnightly.
66 I note the claimant’s evidence that he was paid as a Level 5 cook/chef at other restaurants. However, the Claim sought payment of $32.31 per hour, which is consistent with the casual hourly rate applicable in July 2025 under the classifications in Schedule A of the Award for a Cook Grade 1 (A.3.4) working on a weekday (see table B.1.3, Level 2 in Schedule B of the Award). Accordingly, where this is the hourly amount sought and it is consistent with the Award, I will not seek to vary the amount based on what the claimant may be eligible for at some other restaurant.
67 I find the claimant in working four hours on 17 July 2025 should have been paid $129.24 by the respondent in accordance with cl 11.1 and cl 11.4 of the Award.
68 I find that in failing to do so, the respondent breached s 45 of the FWA by contravening a term of the Award. A breach of s 45 of the FWA is a breach of a civil remedy provision.
Pre-judgment Interest
69 The claimant also applies for interest on any judgment amount. Pursuant to s 547(2) of the FWA, on application, the IMC must include an amount of interest on orders made under s 545(3) ‘unless good cause is shown to the contrary’. I accept no cause is shown that denies an order for pre-judgment interest to be made.
70 Pre-judgment interest in the IMC is awarded pursuant to regulation 12 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Subregulation (1) states that the IMC may order a party to pay interest ‘from the date when the cause of case arose to the date when the order is made’ IMC Regulations reg 12(1)(a).
and at the rate prescribed by s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA). IMC Regulations reg 12(1)(b).

71 Regulation 4 of the Civil Judgments Enforcement Regulations 2005 (WA) prescribes an interest rate of 6% per annum.
72 Further, regulation 12(2) of the IMC Regulations states:
When the court orders a party to pay the total of the amounts that another party was entitled to be paid on different dates, the court may order interest to be paid on the total and if it does so it may calculate the interest as the court thinks fit.
73 Subject to s 547(2) of the FWA, the IMC has a discretion to award interest at such a rate it thinks fit on the whole or any part of the judgment. I note that pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) and s 547(2) of the FWA, the Federal Court and the Federal Circuit and Family Court of Australia has a discretion as to how interest is calculated. The Federal Court’s general practice note by Allsop CJ (as he was then) dated 18 September 2017 describes how interest is calculated in the federal jurisdiction with reference to the Discount and Interest Rate Harmonisation Committee, but this has no application in the IMC. Interest is calculated with regard to the rate 4% above the cash rate published by the Reserve Bank of Australia before the commencement of each of the sixmonthly periods between 1 January to 30 June, and 1 July to 1 December in a given year.

74 Accordingly, I will apply the statutory 6% per annum interest rate and calculate it from 17 July 2025 to the date of the issuance of these reasons on 30 January 2026 resulting in interest in the amount of $4.21.
Outcome and Orders
75 Pursuant to s 548(1A) of the FWA, I am satisfied the amount the respondent is required to pay to the claimant is an amount under the Award, being a fair work instrument. This amount is $129.24.
76 Accordingly, pursuant to s 545(3) of the FWA, where the respondent is required to pay $129.24 under the Award and in failing to do so the respondent has contravened a civil remedy provision, I order the respondent pay to the claimant the amount of $129.24.
77 Pursuant to s 547(2) of the FWA and reg 12 of the IMC Regulations the respondent is to pay to the claimant interest on the judgment amount of $4.21.
78 The total amount payable to the claimant by the respondent is $133.45.



D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth)
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 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 contravening a term of a modern award: FWA s 45.
[5] In respect of an election to deal with a claim using the small claims procedure in s 548 of the FWA, the employee applies for an order which relates to an amount in s 548(1A) and indicates he or she wants the small claim procedure to apply to the proceedings [by complying with the procedure prescribed].
[6] The amount referred to in s 548(1)(b) and s 548(1A)(a) of the FWA refers to:
[A]n amount that an employer was required to pay to … an employee:
(i) under [FWA] or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1) [of the FWA].
[7] Section 12 of the FWA defines ‘fair work instrument’ to, relevantly, mean at (a) a modern award.
[8] An obligation upon an ‘employer’ 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 12, s 14, s 42, s 47. A NES entitlement of an employee 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 13, s 42, s 47.
Contravention
[9] 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 (emphasis added): FWA s 545(3)(a).
[10] The civil penalty provisions identified in s 539 of the FWA includes the Core provisions set out in pt 2 - 1 of the FWA: FWA s 45, s 539.
[11] 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).
[12] In contrast to the powers of the Federal Court and the Federal Circuit and Family Court of Australia, 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 v Gabbusch [2014] SAIRC 15
Burden and Standard of Proof
[13] 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.
[14] 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].
[15] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[16] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the IMC Regulations. Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit, which for a claim electing the small claims procedure is consistent with s 548(3) of the FWA.
[17] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)