2026 WAIRC 00160
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00160



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 11 FEBRUARY 2026



DELIVERED
:
FRIDAY, 20 MARCH 2026



FILE NO.
:
M 120 OF 2025



BETWEEN
:
ARIE HENRY JOHN BOURBON


CLAIMANT





AND





BARTHOLEMEWS MEADERY PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Small claims procedure under the Fair Work Act 2009 (Cth) – Failure to pay an amount under a modern award –– Whether the claimant was a casual or part-time employee – Determination on the applicable modern award
Legislation : Fair Work Act 2009 (Cth)
Minimum Conditions of Employment Act 1993 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instruments : Food, Beverage and Tobacco Manufacturing Award 2020 [MA000073]
Pastoral Award 2020 [MA000035]
Cases referred
to in reasons : Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165
EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449
Noorton v Construction, Forestry and Maritime Employees Union [2025] FCAFC 120
Mildren v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Result : The claim is dismissed
Representation:
Claimant : In person
Respondent : Ms C. Kellie (Director)



REASONS FOR DECISION
Background
1 Bartholemews Meadery is located in Denmark, Western Australia and is in the business of beekeeping and making bee products, including honey.
2 Arie Bourbon (the claimant) was employed from about 15 October 2020 to 29 January 2025 by Bartholemews Meadery Pty Ltd, which operates Bartholemews Meadery (Bartholemews).
3 On 19 September 2025, the claimant lodged an originating claim electing to apply the small claims procedure alleging that Bartholemews contravened the Food, Beverage and Tobacco Industry Award [MA000073] (Food and Beverage Award) by failing to pay him ‘entitlements under the award for part-time employment, accumulated annual and sick leave’ (the Claim). Originating claim lodged on 19 September 2025.

4 The claimant claims $9,551.81 in unpaid accumulated annual leave and $4,063.27 in accumulated ‘sick leave’.
5 In response, Bartholemews says the claimant was at all times a casual employee and his employment was covered by the Pastoral Award 2020 [MA000035] (Pastoral Award). Bartholemews admitted in its response that upon investigating the Claim, it became aware that it had made a mistake with the applicable pay rates and that the claimant was entitled to be paid $2,379.44 in wages and $256.69 in superannuation.
6 The basis for Bartholemews’ calculation of an underpayment in wages and superannuation was the difference between the casual hourly rate for a Level 3 employee under the Pastoral Award and the hourly rate paid to the claimant. A table of the respondent’s calculations is annexed to these reasons at Schedule III.

7 Accordingly, having regard to Bartholemews’ admission and where it consented to an order being made, on 4 November 2025, the Industrial Magistrates Court of Western Australia (IMC or, the Court) made orders for payment of the admitted amounts with the remainder of the Claim referred to pre-trial conference and then, when the Claim did not resolve, a hearing.
8 Schedule I of these reasons outline the jurisdiction of the practice and procedure of the Court.
9 The claimant relied upon his witness statement lodged on 21 January 2026 Exhibit 1 – Witness Statement of Arie Henry John Bourbon signed on 21 January 2026.
and on his oral evidence.
10 The respondent relied upon the witness statements of Careena Kellie, Exhibit 6 – Witness Statement of Careena Kellie lodged on 3 February 2026 with attachments.
Bartholemews’ director, Carly Whitehouse, Exhibit 7 – Witness Statement of Carly Whitehouse lodged on 3 February 2026.
Dionne Wild Exhibit 9 – Witness Statement of Dionne Wild lodged on 3 February 2026.
and Susan Allen, Exhibit 8 – Witness Statement of Susan Allen lodged on 3 February 2026.
all of which were lodged on 3 February 2026. These witnesses also gave oral evidence.
11 Bartholemews also lodged a number of documents, which were accepted by the claimant. These documents were tendered into evidence. Exhibits 2  5.

Issues for Determination
12 There are two issues for determination:
(a) Which modern award (if any) applies to and covers the claimant’s employment by Bartholemews?
(b) Was the claimant employed by Bartholemews as a casual or a part-time employee?
Evidence
Undisputed Facts
13 Bartholemews is and operates as an Australian proprietary company limited by shares, registered pursuant to the Corporations Act 2001 (Cth). The respondent is a constitutional corporation within the meaning of that term in s 12 of the Fair Work Act 2009 (Cth) (FWA) and is a national systems employer within the meaning of that term in s 14(1)(a) of the FWA. The respondent engages in beekeeping and making bee products, including honey (that is, it is engaged in trade or commerce).
14 The claimant was employed by Bartholemews to extract honey and other duties to be described.
15 The claimant commenced working at Bartholemews around 15 October 2020 and did not undertake any work after 29 January 2025.
16 The claimant was a national systems employee within the meaning of that term in s 13 of the FWA. However, the question is whether he was employed as a casual or part-time employee.
17 The claimant was paid the following hourly rates:
(a) November 2020 to 30 June 2021 – $25 per hour
(b) 1 July 2021 to 30 June 2022 – $26 per hour
(c) 1 July 2022 to 30 June 2023 – $26 per hour
(d) 1 July 2023 to 30 June 2024 – $27.27 per hour
(e) 1 July 2025 to 10 February 2025 – $27.27 per hour
Disputed Facts
The Claimant
18 The claimant could not recall exactly when he commenced employment with Bartholemews but thought it was about 5 November 2020. He said his employment ceased on 5 February 2025. A friend told him about the job. ts 9  10.

19 The claimant states that throughout his employment it was agreed that he would do a minimum of 30 hours a fortnight, working on Mondays, Wednesdays, and Fridays in accordance with his ‘Mutual Job Obligation’ with Centrelink. Further, it was agreed that he would be paid $25 per hour and this rate changed to $27.27 per hour from 1 July 2023 until he ceased employment. Exhibit 1.

20 The claimant states that he would not have accepted the job if the rate of $25 per hour was payable for casual employment because he was aware that other casual employees were paid $30 per hour. Exhibit 1.

21 The claimant states that his payslips changed from casual/part-time to part-time. ts 11.

22 The claimant said his job was to extract honey with two other people and he worked 10-hour shifts until the extraction was done. He also kept the premises clean and tidy, including de-webbing, cleaning and scrubbing floors. Further, he assisted with the storage of honey, did stock control, handled the bees wax after extraction, made smoked honey, filtered the honey, maintained the honey lines, labelled jars and also did pest control. ts 12.

23 On or around 5 February 2025, the claimant had a car accident, and he was unable to work. He has not worked since the car accident. However, it appears that it was not until around 20 May 2025 that the claimant informed Ms Kellie that he would not be returning to work. Ms Kellie was aware the claimant had a car accident and was in hospital. ts 17, 30; exhibit 6.

24 The claimant informed Ms Kellie that he was not returning to work in the context of his conversation with her about the Claim. Notably, he had no conversation with Ms Kellie about his return to work or any alleged entitlements between 5 February 2025 and 20 May 2025. Exhibit 1; ts 30.

25 In respect of text messages sent by him to Ms Kellie and other employees, the claimant says that of the 32 messages, 16 are consistent with him working on Mondays, Wednesdays and Fridays. In no text message, is it mentioned that he would work on a Tuesday or Thursday. The claimant says that three of the text messages show he was ‘forced’ to take time off which was not requested by him. Four of the text messages confirm the making up of 30 hours per fortnight where he could not work on a Monday. Exhibit 2 – series of text messages between the claimant and respondent, or people on behalf of the respondent; ts 19.

26 In terms of the answer given by the claimant on the tax file number declaration, Exhibit 3 – tax file number declaration.
the claimant had no recollection of his answer to question 7, being the type of employment, he was employed under. ts 19 – 20.

27 In cross-examination, the claimant was asked whether he agreed that the respondent did not pay him in cash for training prior to being formally employed by the respondent. The claimant disagreed.
28 The claimant maintained that the agreement was to work 30 hours minimum per fortnight, notwithstanding in the second week of his employment where he worked for 22 hours. The claimant said he was forced to take time off.
Careena Kellie
29 Ms Kellie is a director of Bartholemews.
30 She believed in ‘good faith’ the Pastoral Award applied to the claimant’s employment. She said the claimant was paid the appropriate casual rate under the Pastoral Award and more than that required under the Minimum Conditions of Employment Act 1993 (WA) (MCE Act).
31 Ms Kellie states that the claimant ‘declined to come [to work] at a moment’s notice on many occasions’ and also accepted work when asked. Ms Kellie also stated that the claimant did not appear on any roster as his work was able to be done at times that suited him. The claimant did not work on public holidays and never asked for sick leave or annual leave.
32 Ms Kellie says the claimant’s work hours changed with the amount of work required to be done. On weeks that Bartholemews was extracting honey, the claimant would often work more hours and at other times he would work less hours.
33 Ms Kellie says that the claimant’s last day of work was 29 January 2025. The claimant did not inform her that he had a car accident on 5 February 2025, and she learnt this from a third party. The first time the claimant mentioned the payment of sick leave for the car accident was during their meeting on 20 May 2025 when he informed her that he was a part-time employee.
34 Ms Kellie says the claimant has never given her notice for the termination of his employment.
35 Ms Kellie states the claimant’s tax file number declaration shows that the claimant did not check the box for full-time or part-time employment, and the casual box has been cut off, which is the box she says was checked. Ms Kellie has made a request to the Australian Taxation Office for the original.
36 Ms Kellie says that there was not a commitment of 30 hours per fortnight. In cross-examination, she said that she did not remember making a commitment of 30 hours per fortnight.
37 The casual rate paid to the claimant was initially $25 and then increased to $27.27 per hour. She says the rate that was payable was $24.63 per hour and the part-time rate was $19.49 per hour. At the time the claimant’s employment ended the casual rate was $29.33 per hour and the part-time rate was $23.46 per hour.
38 Ms Kellie said that the claimant came when it suited him and agreed that it was often on a Monday, Wednesday or Friday. She said that he came when asked if it suited him and there were times when he did not come if asked.
39 Ms Kellie maintained that the Pastoral Award was the most suitable award and that it was the only award that reflected bees and beekeeping. She paid the award rate appropriate to the year.
40 Ms Kellie maintained that she found out about the car accident from another staff member. On 20 May 2025, she said the claimant asked to come and see her and told her that he was part-time and that he would not be returning to work.
41 Ms Kellie said that the claimant’s hours were not regular and she could not be sure when he was coming to work, consistent with the need for extraction. That is, extraction of honey happens when it happens.
42 Ms Kellie mostly agreed with the claimant’s evidence about his duties while employed at Bartholemews.
43 In cross-examination, Ms Kellie said that annual leave was not recorded on the claimant’s payslips because he was casual. She maintained the claimant was paid the right award rate.
44 Ms Kellie agreed she was ‘hazy’ about the award in 2020 but said it was not the Food and Beverage Award. She maintained the Pastoral Award was connected to or applied to work in beekeeping.
45 Ms Kellie disagreed that the claimant worked exclusively on Mondays, Wednesdays and Fridays.
46 Ms Kellie said extraction of honey was seasonal but regular over about seven months.
47 Ms Kellie explained that the payroll software (Reckon) options were casual part-time, casual full-time, part-time or full-time. She used the casual part-time option until July 2023 when she inadvertently ‘clicked’ it onto part-time but this was an error on her part. Response lodged 29 October 2025.

Carly Whitehouse
48 Ms Whitehouse was employed at Bartholemews from April to November 2024 as a full-time staff member.
49 Ms Whitehouse said the claimant worked around Bartholemews doing tasks such as extraction of honey, moving honey from bulk drums to tanks for decanting, deliveries, cleanup, general maintenance and occasional filling of honey.
50 Ms Whitehouse said the claimant was able to come and do these tasks on his own schedule. He came when asked on specific times for extraction and did not come when there was no work to do.
51 In cross-examination, Ms Whitehouse said the claimant worked some Fridays and left early on Wednesdays. She told him when extractions happened.
Susan Allen
52 Ms Allen was employed at Bartholemews from September 2014 to November 2024.
53 Ms Allen said the claimant worked hours when he was required rather than having set hours or days.
54 Ms Allen said the claimant did not attend work when he was unwell or had short breaks to see family and friends. She did not think much of it when he was not there.
55 In cross-examination, Ms Allen said that if the claimant did not want to work on a Monday, Wednesday or Friday, then he did not work. She did not take much notice of his days.
Dionne Wild
56 Ms Wild has been employed at Bartholemews since July 2020, initially in full-time employment and then, at her request, in casual employment.
57 Ms Wild stated the claimant worked on his own time schedule doing tasks around Bartholemews, including extraction of honey, moving honey from bulk drums to tanks for decanting, deliveries, cleanup, general maintenance and occasional filling of honey.
58 On occasions, she asked the claimant not to attend work because there was no work to be done and on occasions, she also asked him to come to work for the extraction of honey.
59 Ms Wild confirmed that she was the person, ‘Dee’, who is referred to in various text messages to and from the claimant.
60 Ms Wild maintained the claimant came and went when he could work.
61 In cross-examination, Ms Wild said she inferred the claimant was casual because he came and went and she said he did not work every Monday, Wednesday and Friday as far as she was aware.
62 Ms Wild was not aware the claimant had to do a minimum of 30 hours per fortnight or that he was required to work every Monday, Wednesday and Friday.
63 Ms Wild said the claimant ‘came and went’ and that he was at work when he could be there. She did not give it much thought.
Tax File Number Declaration
64 The claimant’s tax file number declaration is cut off at the edge. However, in response to question 7 in Section A, there is no ‘x’ in the part-time employment box. Ms Kellie said the document was cut off during copying but there was an ‘x’ in the casual employment box on the original. I note that question 7 in Section A is required to be answered by the claimant as the employee and the claimant signed the declaration saying the information is true and correct and signed it on 20 October 2020. Ms Kellie signed the employer’s declaration in Section B on 28 October 2020.
Timesheets and Payroll Item Detail
65 The respondent produced a series of handwritten and electronic timesheets, which both parties accepted as the claimant’s timesheets while employed at Bartholemews. Exhibit 4 – handwritten and electronic timesheets of the claimant.
In addition, the respondent produced a payroll item detail, which both parties accepted was a summary of the claimant’s payroll, including fortnightly hours worked and amounts paid. Exhibit 5 – respondent’s payroll item detail.

66 The timesheets, including a handwritten notation consistent with the payroll item detail, show the claimant’s first work day at Bartholemews was 15 October 2020. The claimant’s last day of work, consistent with the payroll item detail, was 29 January 2025.
67 A review of the claimant’s days of work shows that the claimant did work on Tuesdays and Thursdays from time to time. The claimant also worked the occasional Saturday. Further, the claimant did not work every Monday, Wednesday and Friday. There were many weeks where the claimant worked on Monday and Wednesday or Wednesday and Friday or a combination of those days.
68 A review of the claimant’s hours of work from the timesheets shows that he started work at any time between 6.30 am and 3.30 pm. During the initial part of his employment this was mainly between 7.00 am and 7.30 am but then was between 8.00 am and 8.30 am. When the time recording moved to electronic timesheets, the claimant commenced work at any time between 8.00 am and 9.30 am, and there was little consistency in his start times.
69 A review of the claimant’s hours of work from the timesheets shows that he finished work at any time between 11.30 am and midnight. Again, during the initial part of his employment this was mainly between 3.00 pm and 4.30 pm but it was variable depending on the start times.
70 The payroll item detail shows the claimant was paid fortnightly and worked 30 hours per fortnight on four occasions (two of those occasions were marginally over 30 hours but under 31 hours) with the remaining fortnightly hours being either under or over 30 hours per fortnight.
71 Of the remaining occasions over the period of employment, there were 30 occasions where the claimant worked less than 30 hours per fortnight (not counting the fortnight when the claimant had a car accident).
Text Messages
72 There are two bundles of text messages, which the parties agreed were either between the claimant and Ms Kellie or the claimant and Ms Wild (referred to as ‘Dee’). Exhibit 2 – (a) text messages between the claimant and Ms Kellie of varying dates and (b) text messages between the claimant and Ms Wild of varying dates.

73 In respect of the first tranche of text messages between the claimant and Ms Wild (and on occasion, Ms Whitehouse), there are about 40 messages although there is some duplication or crossover of messages.
74 In two of those messages, Ms Wild or Ms Whitehouse informs the claimant that it is very quiet and to take the rest of the week off. In one different message, the claimant informs Ms Wild or Ms Whitehouse that he is unwell, and, in response, she tells him that it is quiet and to come back on Monday. In another separate message, Ms Wild or Ms Whitehouse asks the claimant whether he will be working on Tuesday because that Monday was a public holiday. The claimant responds that normally he does not work the next day but had no problem coming in on Tuesday.
75 The remaining approximately 35 messages involve the claimant informing Ms Wild or Ms Whitehouse that he will not be attending work, for reasons such as he is unwell; his bike is not working; it is his birthday; he is having issues at home; he has a sore hip from falling off a ladder; he has a house inspection; he is stuck in another town, or he gives no reason at all for his non-attendance.
76 In respect of the second tranche of text messages between the claimant and Ms Kellie, there are about 32 messages, although at least one of the messages appears to be between Ms Kellie and another person about the claimant.
77 In one of those messages, the claimant informs Ms Kellie that he ‘may or may not be in today’ and that there was nothing ‘pressing’ at work that he was aware of, but if there was something then he can come in ‘tomorrow’, otherwise he would be at work on Wednesday.
78 In another message, the claimant indicates that he has a bad head cold and says, ‘otherwise Monday if that’s okay’. Further, the claimant informed Ms Kellie that he ‘swapped Monday for today sorting out rego and transfer of new ute’. One another occasion, Ms Kellie also asked the claimant if he was ‘ok’ as she was expecting to see him ‘this morning’, on Monday, 18 January 2021, and she wondered if he was well. Another message also shows that Ms Kellie asked the claimant if he was interested in doing a couple of days extra work. On 20 November 2020, the claimant responded that he ‘could put in 2 days next week’.
79 The remaining messages are otherwise work-related messages of little importance.
Findings of Disputed Facts
80 The claimant’s evidence of the regularity of his hours and days of work does not wholly accord with the evidence contained in the timesheets, payroll item details and text messages to Ms Kellie and Ms Wild. The claimant said the text messages were consistent with him not working on Tuesdays, but at least one of the text messages indicated he did and the timesheets certainly recorded him working on Tuesdays and Thursdays. Further, the claimant relied upon the regularity of working a minimum of 30 hours per fortnight, however, the timesheets again record that he did not always do so.
81 The timesheets record that the claimant’s start and finish times were variable, consistent with the evidence given by the respondent’s witnesses.
82 The text messages between the claimant, Ms Kellie and Ms Wild, save for about two occasions, indicate that the claimant told them when he would or would not be working for whatever reason. If there was additional work to be done, the claimant was asked if he wanted to do it. If there was no work to be done, he was told he was not required to be at work. There was no obvious ‘forcing’ of anything.
83 I find that the claimant’s evidence of his hours and days of work was possibly untruthful and certainly not reliable. I find the claimant’s evidence concerning his attendance at work was also not reliable.
84 While the respondent’s witnesses’ evidence was limited, as already stated it was consistent with the timesheets. That is, the claimant’s hours of work at Bartholemews were variable with no obvious start or finish time on the days he worked. While the claimant worked more on Mondays, Wednesdays or Fridays, he also worked on other days, and it was also variable.
85 Notably, the respondent’s witnesses, including Ms Kellie, made appropriate concessions and did not try to fill gaps in the evidence.
86 I find the respondent’s witnesses’ evidence was truthful and reliable.
87 I find that when the claimant worked at Bartholemews there was no set start or finish time and, to that end, the claimant was able to start and finish generally when he wanted to but also based on what work the claimant was undertaking at the time as needed by the respondent.
88 I find that from time to time the claimant informed either Ms Kellie or Ms Wild that he would not be at work for a variety of reasons. I find that Ms Kellie asked the claimant if he was available for other work and/or informed him when there was no work to be done. The claimant responded accordingly.
89 There was no dispute about the type of work undertaken by the claimant, and I find that it included duties such as the extraction of honey, moving honey from bulk drums to tanks for decanting, deliveries, cleaning, general maintenance, handling bees wax and labelling of jars of honey.
90 In terms of any agreement about undertaking a minimum amount of work of 30 hours per fortnight, I do not accept the claimant’s evidence of the conversation he purported to have with Ms Kellie at the commencement of his employment. Firstly, I have found the claimant’s evidence to be unreliable in relation to other aspects of his employment. Second, the claimant’s evidence does not wholly accord with the timesheets, including for the second fortnight of his employment. Third, Ms Kellie does not recall the conversation in those terms, albeit the claimant and Ms Kellie agreed the claimant would be paid $25 per hour.
91 I find that the content of the conversation between the claimant and Ms Kellie at the start of his employment with Bartholemews did not include a reference to him being employed for a minimum of 30 hours per fortnight.
92 I find that the conversation did make reference to the claimant being employed as a casual employee for $25 per hour, although the parties’ label on the employment status is not determinative of the actual status but is a factor for consideration. Further, the labelling on the claimant’s payslips as casual part time or part time is also not determinative of the claimant’s employment status, where I accept Ms Kellie’s explanation of the payroll system and her error.
93 Implicit in these findings is that I do not accept the claimant’s evidence that Ms Kellie referred to his employment status as part-time at the commencement of his employment with Bartholemews.
94 I find the claimant never informed the respondent or Ms Kellie that he was not returning to work or was unavailable for work until he met with her on or around 20 May 2025. Ms Kellie was made aware the claimant had a car accident on 5 February 2025 by another staff member, and no further work was offered.
Employment Terms
95 Notwithstanding there was no written agreement or contract between the claimant and Bartholemews for work undertaken by him, the court is to determine the nature and terms of the employment contract between the parties to ascertain their contractual rights and obligations. Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 (Personnel Contracting) [83], [177]; EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171 [7], [52]  [56] (EFEX).

96 The terms are determined by application of orthodox principles. That is, where the terms are partly in writing and partly oral or wholly oral, the terms may be inferred from all the circumstances, including the parties’ conduct and words at the time of contract formation; their conduct over time; their course of dealing; or inferred where necessary for business efficacy. EFEX at [9].

97 To this end, regard may be had to:
[C]ircumstances surrounding the making of the contract and events and matters, known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for and the arrangements of the supply or provision of any tools or equipment to the putative employee may also be relevant. EFEX at [11].

98 In addition, recourse may be had to the post-contractual conduct of the parties if it assists in ascertaining the terms of the contract. Personnel Contracting at [48] and [83].

99 In this case, having regard to the undisputed and found facts, the ascertainable terms of the contract are:
(a) the claimant would undertake casual work at Bartholemews being paid $25 per hour (which increased over time);
(b) the work would include the extraction of honey and other tasks associated with that, including cleaning and general maintenance; and
(c) the number of hours was variable but largely dependent on the amount of work that was required to be done at Bartholemews.
100 The claimant may have expressed a desire to work mainly on Monday, Wednesday and Friday where this suited both the claimant and Bartholemews.
Which Award Applies to the Claimant’s Employment?
101 The first issue to be determined is whether the Food and Beverage Award or the Pastoral Award applies to and covers the claimant’s employment with Bartholemews. Both parties relied mainly upon what they were told by the Office of the Fair Work Ombudsman or by using online tools.
102 Ms Kellie states that in Western Australia, beekeepers are required to be registered and annexes to her witness statement Bartholemews’ beekeeping registration with the Department of Primary Industries and Regional Development.
103 Whilst contained in her witness statement, Ms Kellie’s submissions on the Pastoral Award ‘covering businesses keeping bees and making bee products’ include:
(a) the definition of Pastoral Industry in the Pastoral Award means ‘employers and employees who work in (or connected to) the managing, breeding, rearing or grazing of livestock or poultry’, where ‘livestock means all animals used in primary production including insects’; Exhibit 6.

(b) the definition of Bee Products in the Beekeepers Act 1963 (WA) means honey, pollen, beeswax, propolis and any other product of the bee hive that may be prescribed; and
(c) the registration of Bartholemews as beekeepers,
104 In the alternative, Ms Kellie submits that the claimant is an ‘award-free’ employee and refers to the MCE Act.
105 The claimant says the Food and Beverage Award is the most appropriate award for the work he did at Bartholemews.
The Law
106 A modern award made by the Fair Work Commission does not impose an obligation or give an entitlement unless the award applies to the employer and the employee. Section 46 of the FWA.
An award applies to the employer and the employee if the award covers each of them. Section 47 of the FWA.
An award covers an employer and employee if the award is expressed to cover each of them. Section 48(1) of the FWA.
The starting point to determine award coverage are the words of the award itself. More specifically, it is ‘the objective meaning of the words used [in the relevant award] bearing in mind the context in which they appear and the purpose they are intended to serve’. Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 (Coles Supermarkets) [22].

107 The Claim requires determination of the applicability of two modern awards, where the claimant did a single job with elements that may attract the operation of both awards.
108 The Pastoral Award and the Food and Beverage Award both contain a clause prioritising the award classification that is ‘most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work’. Clause 4.7 of the Food and Beverage Award; see also cl 4.7 of the Pastoral Award and Coles Supermarkets [26].

109 The determination of which award classification is ‘most appropriate’ is by ‘reference to the primary purpose of the employment in question, the range of tasks for which the employees were trained, and the classification which is the more comprehensive match with the work in question’. Noorton v Construction, Forestry and Maritime Employees Union [2025] FCAFC 120 [86].

110 If the claimant’s employment is not covered by any modern award, then he may be ‘award free’ and the National Minimum Wage and the National Employment Standards (NES) will form the minimum terms and conditions of his employment where he is a national systems employee employed by a national systems employer.
111 The MCE Act does not apply to the claimant’s employment where the claimant was a national systems employee employed by a national system employer.
Determination
Pastoral Award
112 Clause 4.1 of the Pastoral Award provides:
This industry award applies to employers throughout Australia in the pastoral industry and their employees in the classifications set out in this award to the exclusion of any other modern award.
113 Clause 4.2 of the Pastoral Award defines ‘pastoral industry’ to mean all employers and employees who are engaged in or in connection with:
(a) the management, breeding, rearing or grazing of livestock or poultry;
(b) the shearing and crutching of sheep and the classing and pressing of wool on farms;
(c) dairying;
(d) hatchery work;
(e) the sowing, raising or harvesting of broadacre field crops and other crops grown as part of a broadacre mixed farming enterprise;
(f) the treatment of land for any of these purposes; or
(g) clearing, fencing, well sinking, dam sinking or trenching on such farms or properties.
114 Clause 2 of the Pastoral Award defines ‘livestock’ to mean:
[A]ll animals used in primary production including insects.
115 Clause 2 of the Pastoral Award defines ‘farm and livestock hand’ to mean:
[A]n employee performing the work described in the classifications which apply to such work in Part 6–Broadacre Farming and Livestock Operations of this award and who is not a piggery attendant, poultry worker or any employee classified under Part 9–Shearing Operations.
116 Part 6 of the Pastoral Award contains the classifications for ‘farm and livestock hand’. Schedule II to these reasons sets out the classifications from level 1 to level 8.
117 The types of work classifications contained in Part 6 include station hands; station cooks; station cook’s offsider; cattle farm worker; feedlot employee and dairy operator, of varying experience and qualifications.
118 While the definition of livestock relevant to pastoral industry includes insects, none of the classifications in Part 6 apply to the work carried out by the claimant while employed at Bartholemews.
119 That is, the claimant did not carry out work as a station hand; station cook; cattle farm worker; dairy operator or feedlot employee at any level, leaving aside that at the more senior levels the claimant did not produce evidence of any relevant qualifications that might have qualified him to work at those levels.
120 The remaining classifications in the Pastoral Award have no relevance to the Claim as they include shearers; wool classers and pressers; poultry workers and piggery attendants.
121 Accordingly, the Pastoral Award does not apply to Bartholemews and the claimant because the claimant was not employed in, or covered by, any of the classifications in Part 6 of the Pastoral Award.
Food and Beverage Award
122 Clause 4.1 of the Food and Beverage Award provides:
This industry award covers employers throughout Australia in the food, beverage and tobacco manufacturing industry and their employees in the classifications in this award to the exclusion of any other modern award
123 Clause 4.2 of the Food and Beverage Award defines food, beverage and tobacco manufacturing industry to mean:
Food, beverage and tobacco manufacturing means the preparing, cooking, baking, blending, brewing, fermenting, preserving, filleting, gutting, freezing, refrigerating, decorating, washing, grading, processing, distilling, manufacturing and milling of food, beverage and tobacco products, including stock feed and pet food, and ancillary activities such as:
(a) the receipt, storing and handling of ingredients and raw materials to make food, beverage and tobacco products, including stock feed and pet food;
(b) the bottling, canning, packaging, labelling, palletising, storing, preparing for sale, packing and despatching of food, beverage and tobacco products, including stock feed and pet food; and
(c) the cleaning and sanitising of tools, equipment and machinery used to produce food, beverage and tobacco products, including stock feed and pet food.
124 The claimant suggested that the classification of his work at Bartholemews under the Food and Beverage Award was Level 5.
125 Schedule A of the Food and Beverage Award contains the classification structure applicable to employees covered by the award.
126 At A.2.5 in Schedule A, Level 5 (100% relativity to the tradesperson) provides:
(a) An employee at Level 5 is an employee who has either:
(i) completed an [Australian Qualifications Framework] Certificate 3 in Food Processing; or
(ii) has equivalent recognised enterprise or industrial experience, training or prior learning experience or skills to Level 5.
(b) Competencies
An employee at Level 5 performs work above and beyond the competencies of a Level 4 employee, and:
(i) understands and applies quality control techniques;
(ii) has good interpersonal and communication skills;
(iii) is able to inspect products and/or materials for conformity with established operational standards;
(iv) exercises judgment and decision making skills;
(v) works under general supervision either individually or in a team environment;
(vi) may undertake structured training to enable the employee to work at Level 6.
127 Having regard to the type of work carried out by the claimant at Bartholemews, it involved the extraction of honey from (presumably) bee hives and work associated with that including cleaning, labelling of jars, deliveries and general maintenance.
128 The respondent’s evidence described Bartholemews as beekeepers, who make bee products including honey.
129 In my view, the nature of the business operated by Bartholemews, on the evidence, is that it included the handling of raw materials to make, amongst other things, food products. Accordingly, it is open on the evidence to determine the Food and Beverage Award may cover Bartholemews and the claimant, if the claimant’s employment comes within the classifications in Schedule A.
130 I do not accept that the work undertaken by the claimant came within classification Level 5 in Schedule A of the Food and Beverage Award. There was no evidence of any qualification held by the claimant, nor was there any evidence of any recognised enterprise or industrial experience, training or prior learning experience or skills to Level 5.
131 At its highest, the claimant’s evidence was that he assisted two other employees to extract honey and undertook other ancillary tasks or jobs, including cleaning, general maintenance, deliveries and some jar labelling. A friend told him about the job.
132 Ms Kellie may be a registered beekeeper but there was no evidence the claimant was, or even if he had any relevant qualifications as, a beekeeper.
133 The same situation arises as it relates to classification Level 3 and Level 4 in Schedule A, where both levels require either certain qualifications or recognised enterprise or industrial experience, training or prior learning experience or skills to the associated level.
134 To be classified at Level 2 in Schedule A, the claimant was required to have either:
(a) completed a structured induction program over a period not exceeding three months or for such shorter period as is necessary to reach the required level of competency for appointment to Level 2; or
(b) has recognised enterprise or industrial experience, training or prior learning experience or skills to Level 2.
135 Neither party’s evidence demonstrated that the claimant fulfilled either of those requirements.
136 Classification Level 1 in Schedule A provides:
(a) an employee at Level 1 has less than 3 months’ experience in the industry or enterprise and does not possess recognised enterprise or industrial or prior learning experience and/or skills sufficient for appointment to Level 2 or above. Provided that the length of service required to advance to Level 2 for a seasonal employee is 4 weeks and for a casual employee is 152 hours.
(b) Competencies
An employee at Level 1 performs general duties essentially of a manual nature, and
(i) exercises minimal judgment;
(ii) works under direct supervision; and
(iii) is undertaking up to 38 hours’ induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, work health and safety, equal employment opportunity and quality control/assurance.
137 In my view, the most appropriate classification, having regard to the claimant’s work and duties, is Level 1, particularly where his general duties were predominantly manual in nature, he worked under supervision, appeared to exercise minimal judgment, albeit it is unknown whether there was any induction training.
138 Notwithstanding the limited evidence, on the evidence before the Court, I find the Food and Beverage Award is the modern award covering Bartholemews and the claimant where the claimant’s duties is most appropriately classified as Level 1 in Schedule A.
139 However, if I am wrong, I will also consider the claimant’s position as an ‘award free’ employee where the National Minimum Wages and NES form the minimum terms and conditions of his employment by Bartholemews.
The Claimant’s Employment Status
140 Having determined which modern award covered the claimant’s employment at Bartholemews, the second issue is whether the claimant was employed as a casual or part-time employee.
141 Pursuant to cl 2 of the Food and Beverage Award, a casual employee has the same meaning given by s 15A of the FWA. Each award includes a note to the definition of ‘casual employee’ that states ‘[s]ection 15A of the Act was amended with effect from 26 August 2024. Under clause 102(3) of Schedule 1 to the Act, an existing employee who was a casual employee of an employer under section 15A as it was immediately before that date is taken to be a casual employee of the employer for the purposes of section 15A after that date’.
Notably, cl 2 of the Pastoral Award defines casual employee in identical terms. Therefore, even if the Court was wrong in determining the applicable modern award, the outcome on the definition of ‘casual employee’ is the same.
The Law
142 The employment relationship commenced on or around October 2020. Therefore, the principals in the High Court decision in Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 would have been appliable to the characterisation of the engagement relationship between the claimant and Bartholemews, save that s 15A of the FWA was inserted following the enactment of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery Act 2021 (Cth). The amendments applied retrospectively to employees subject to limited exceptions and also provided that an award of compensation for permanent employee entitlements payable to an employee mistakenly treated as a casual must be reduced by the amount of any identifiable casual loading paid to the employee. Section 545A of the FWA, Sch 1 cl 46 of the FWA.

143 This was before the amendment to the definition of ‘casual employee’ in the FWA from 26 August 2024, which did not apply retrospectively and where the previous ‘casual employee’ definition still applies to periods of casual employment occurring before 26 August 2024. Accordingly, whether an employee is correctly engaged as a casual employee will depend on which ‘casual employment’ definition applied at the commencement of their employment
144 Pursuant s 15A of the FWA, applicable at the time of the claimant’s commencement of employment, a ‘casual employee’ was defined as:
Section 15A Meaning of casual employee
(1) A person is a casual employee of an employer if:
(a) An offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:
(a) the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2; or
(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.
145 Therefore, in determining whether the claimant was engaged in casual employment within the meaning of s 15A of the FWA, as was applicable in October 2020, the questions to be answered are:
(a) Was the claimant offered a job by Bartholemews?
(b) Did the offer include no firm advance commitment that the work would continue indefinitely according to an agreed pattern of work?
(c) Did the claimant accept the offer knowing that there was no firm advance commitment when they became an employee?
146 In determining whether Bartholemews’ offer did not include a firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, there are four factors to consider and only these factors are to be considered:
(a) Whether Bartholemews could choose to offer the claimant work and it would be the claimant’s choice to work or not?
(b) Whether the claimant would be offered work when Bartholemews needed him to work?
(c) If the employment was described as casual.
(d) If the claimant would be paid a casual loading (a higher pay rate for being a casual employee), or a specific pay rate for casual employees.
Determination
147 There is no dispute the claimant was offered a job by Bartholemews.
148 In determining whether the offer included no firm advance commitment that the work would continue indefinitely according to an agreed pattern of work, and having regard to the findings of fact, the following is relevant:
(a) the claimant’s variable start and finish times, the manner in which the claimant informed Ms Kellie or the respondent when he was not attending work and the manner in which the respondent requested the claimant to work or not to work is such that I find that the claimant chose to work or not work based on Bartholemews’ offer of work;
(b) while there was consistency of work available for the claimant to perform, there was no requirement for him to attend work and Bartholemews adopted an apparently laisse-faire approach to his attendance or non-attendance;
(c) the employment was described as casual, irrespective of the claimant’s belated characterisation of the employment as part-time and the reference on later payslips;
(d) following the claimant’s car accident, there was no indication from the claimant or Bartholemews about future work, until the claimant spoke with Ms Kellie on or around 20 May 2025 about the Claim; and
(e) Bartholemews paid the claimant $25 per hour on the basis of hours worked. I note that in November 2020, the Pastoral Award hourly rate for a casual farm and livestock hand was between $24.80 and $25.88 for level 1 to level 3. A part-time farm and livestock hand hourly rate for the same classification was between $19.84 to $20.70. Similarly, in November 2020, the Food and Beverage Award hourly rate for a casual employee was between $24.80 to $26.49 for level 1 to level 3. A part-time employee hourly rate for the same classification was between $19.84 and $21.19.
149 Consistent with the above, I find that the offer of a job by Bartholemews did not include a firm advance commitment that the work would continue indefinitely according to an agreed pattern of work.
150 The claimant states that he would not have accepted the job as a casual employee being paid $25 per hour but would have accepted $30 per hour, similar to other employees. The respondent denies any casual employee was paid $30 per hour. I do not accept the claimant’s evidence, which is clearly in hindsight. At the time of the offer of employment, the claimant accepted the offer of the job on the basis of $25 per hour, and the text messages, along with the variable start and finish times, give every indication that the claimant undertook work for Bartholemews by choice understanding he was a casual employee.
151 I find that the claimant accepted the offer of employment knowing that there was no firm advance commitment when they became an employee.
152 Therefore, I find that the claimant was employed by Bartholemews as a casual employee.
Applicable Pay Rates for Casual Employees
153 Under the Food and Beverage Award, the applicable pay rates for a Level 1 casual and part-time employee are as follows:

November 2020
July 2021
July 2022
July 2023
July 2024
Level 1 casual
$24.80
$25.41
$26.73
$28.26
$29.33
Level 1 part-time
$19.84
$20.33
$21.38
$22.61
$23.46
154 Under the National Minimum Wage, applicable pay rates for a casual and part-time employee are as follows: National Minimum Wage Orders 2020 – 2024, pursuant to the FWA.


November 2020
July 2021
July 2022
July 2023
July 2024
Casual
$24.80
$25.41
$26.73
$29.03
$30.13
Part-time
$19.84
$20.33
$21.38
$23.23
$24.10
155 Notwithstanding the Claim did not seek underpayment of ordinary hourly rates applicable to a casual employee, I note Bartholemews admitted it underpaid the claimant $2,379.44 in wages and $256.69 in superannuation. Given the hourly rates detailed in the above two tables, this was an appropriate admission where it appears the casual hourly rates paid from 1 July 2022 were less than that payable under the Food and Beverage Award for a casual employee at Level 1.
156 Similarly, if the claimant was an ‘award free’ casual employee, the rates payable from 1 July 2022 were less than that provided under the National Minimum Wage.
157 In so noting, I also observe that by using the figures provided by Bartholemews in its response, there may be an additional $155.51 outstanding in unpaid wages to the claimant payable under the Food and Beverage Award. This is the case even though in its calculations Bartholemews used the pay rates for a casual Level 3 employee under the Pastoral Award, a classification that is not applicable to the claimant because he is not a station hand or dairy operator.
Outcome
158 Notably, the Claim sought payment for the accumulated entitlements under the Food and Beverage Award for a part-time employee as it related to annual leave and ‘sick’ leave.
159 Clause 25.1 of the Food and Beverage Award provides that annual leave does not apply to a casual employee. Clause 10.1 to cl 10.3 of the Food and Beverage Award provides the formula for the casual ordinary hourly rate.

160 Clause 26 of the Food and Beverage Award provides that personal leave (the claimant refers to this as ‘sick leave’) is provided for in the NES.
161 Section 61(2)(e) of the FWA provides that paid personal leave is a minimum standard that applies to the employment of employees. Part 2-2, Division 7 of the FWA contains the minimum standards as it relates to, amongst other leave not applicable to the Claim, personal leave. Subdivision A relates to paid personal leave but pursuant to s 95 of the FWA, this subdivision applies to employees other than casual employees.
162 I also note the Claim seeks the apparent pay out of accumulated ‘sick leave’. Section 101 of the FWA provides for the ‘cashing out’ of personal leave and, at subsection (1), states a ‘modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.’
163 The Food and Beverage Award makes no provision for the cashing out of paid personal leave.
164 For completeness, I also note cl 11.3(b) of the Pastoral Award provides that the casual loading in cl 11.3(a)(ii) is paid instead of annual leave, personal leave and other entitlements ordinarily attributed to full-time and part-time employees. Annual and personal leave is otherwise provided for in the NES. See cl 20.1 and cl 21 of the Pastoral Award.
Neither apply to casual employees.
165 Similarly, the Pastoral Award makes no provision for the cashing out of paid personal leave.
166 The Claim cannot succeed where the claimant was employed by Bartholemews as a casual employee. A casual employee has no entitlement to annual leave or paid personal leave under the Food and Beverage Award, the NES, or the Pastoral Award.
167 Accordingly, where the Claim seeks the payment of an amount the claimant says the respondent was required to pay under the Food and Beverage Award because he was a part-time employee, the Court is not satisfied that, in fact, the respondent was required to pay to the claimant an amount on account of any unpaid and accrued annual or personal leave entitlement.
168 Alternatively, and notwithstanding it was not specifically claimed, I am also not satisfied that that there was an amount required to be paid under the FWA to the claimant on account of any unpaid and accrued annual or personal leave entitlement.
169 I am not satisfied the claimant has proven the Claim to the requisite standard even though I am satisfied on the evidence the Food and Beverage Award is the modern award applicable to the claimant’s employment.
Orders
170 The Claim is dismissed.




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)

SCHEDULE II: Part 6 of the Pastoral Award - Level 1 to Level 8
31.1 Farm and livestock hand level 1 (FLH1)
An employee at this level includes:
(a) Station hand with less than 6 months’ experience in the industry;
(b) Station cook with less than 6 months’ experience in the industry;
(c) Station cook’s offsider with less than 6 months’ experience in the industry; and
(d) Cattle farm worker grade A who:
· works under direct supervision either individually or in a team environment;
· understands and undertakes basic quality control/assurance procedures including the ability to recognise basic quality deviations/faults;
· understands and utilises basic statistical process control procedures; and
· has less than 6 months’ experience in the industry (after which the employee will progress to Cattle farm worker grade B).
Indicative of the tasks which an employee at this grade may perform are the following:
· routine mustering;
· routine fence repairs;
· aerial stock sighting;
· repetitive packing and/or unpacking; and
· kitchen/cooking assistance not involving food preparation.
(e) Feedlot employee level 1 with less than 3 months’ experience in the industry.
(f) Dairy operator grade 1A with less than 6 months’ experience in the industry who:
· uses their knowledge and skills to perform set procedures such as milking and attending to livestock, haymaking, fencing.
Indicative of the tasks which an employee at this level may perform are the following:
· operate milking plant and equipment in a safe manner;
· identify and report equipment not operating normally;
· work co-operatively as part of a team;
· read and record instrument information i.e. milk vat temperatures and cow numbers; and
· understand the principles of safe working.
31.2 Farm and livestock hand level 2 (FLH2)
An employee at this level includes:
(a) Station hand with 6 to 12 months’ experience in the industry.
(b) Station cook with more than 6 months’ experience in the industry.
(c) Station cook’s offsider with more than 6 months’ experience in the industry.
(d) Cattle farm worker grade B who:
· performs work above and beyond the skills of a cattle farm worker grade A and to the level of their training;
· is responsible for the quality of their own work subject to routine supervision;
· works under routine supervision either individually or in a team environment; and
· exercises discretion within their level of skills and training.
Indicative of the tasks which an employee at this level may perform are the following:
· receive, check, despatch and record goods received and sent;
· assist a tradesperson;
· basic non-trades daily maintenance of equipment used by the employee;
· sort and cut out stock;
· sort and brand yarded stock;
· fence repairs;
· kitchen/cooking assistance not involving unsupervised food preparation;
· boundary riding;
· forklift, overhead crane, winch or tractor operation; and
· household domestic work other than childcare or child education.
(e) Feedlot employee grade 1 with more than 3 months’ experience in the industry who:
· works under direct supervision with regular checking of their work.
Indicative of the tasks which an employee at this level may perform are the following:
· perform cattle handling procedures;
· perform cattle health and welfare procedures;
· assist with [euthanising] livestock;
· assist with performance of cattle post-mortem procedures;
· transport, handle and store chemicals applicable to primary work area;
· prepare and apply chemicals applicable to primary work area;
· operate moving plant and equipment competently and efficiently;
· perform grain processing procedures;
· perform feed manufacture and delivery procedures;
· perform hygiene and housekeeping procedures associated with the primary work area;
· perform feedlot and environment maintenance procedures;
· possess understanding of industry quality assurance programs and all site operating procedures; and
· carry out workplace work health and safety procedures.
(f) Dairy operator grade 1A with 6 to 12 months’ experience in the industry.
31.3 Farm and livestock hand level 3 (FLH3)
An employee at this level includes:
(a) Station hand who:
· has at least 12 months’ experience in the industry as a station hand; but
· does not conform to the definition of senior station hand (FLH5) in clause 31.5.
(b) Dairy operator grade 1B with 12 months’ experience in the industry who:
· uses their knowledge and skills to perform set procedures such as milking and attending to livestock, haymaking, fencing.
Indicative of the tasks which an employee at this level may perform are the following:
· operate milking plant and equipment, in a safe manner;
· identify and report equipment not operating normally;
· work co-operatively as part of a team;
· read and record instrument information i.e. milk vat temperatures and cow numbers; and
· understands the principles of safe working.
31.4 Farm and livestock hand level 4 (FLH4)
An employee at this level includes:
(a) Feedlot employee level 2 who:
· has 2 years’ experience in the feedlot industry; and
· works under routine supervision with intermittent checking of their work.
Indicative of the tasks which an employee at this level may perform are the following:
· utilise ability to make independent work decisions at this level;
· perform cattle handling procedures;
· perform cattle health and welfare procedures;
· euthanase livestock;
· perform cattle post-mortem procedures;
· select livestock for specific markets;
· transport, handle and store chemicals applicable to primary work area;
· prepare and apply chemicals applicable to primary work area;
· operate moving plant and equipment competently and efficiently;
· perform grain processing procedures;
· perform feed manufacture and delivery procedures;
· perform hygiene and housekeeping procedures associated with the primary work area;
· perform feedlot and environment maintenance procedures;
· possess understanding of industry quality assurance programs and all site operating procedures; and
· carry out workplace work health and safety procedures.
31.5 Farm and livestock hand level 5 (FLH5)
An employee at this level includes:
(a) Dairy operator grade 2 who:
· has 2 years’ experience in the industry;
· uses their knowledge and skills to multiple operations involving basic levels of problem solving and decision making; and
· has an appreciation of the overall processes involved in a dairy farm.
Indicative of the tasks which an employee at this level may perform are the following:
· operate milking plant and equipment, undertake multiple functions, produce a quality outcome e.g. farm machinery;
· maintain machinery, undertake adjustments and size changes;
· solve problems and make decisions within given guidelines;
· know general scientific terminology and assist with processes such as machine repair, artificial insemination, fertiliser mix design etc.;
· operate standard measuring equipment;
· operate computerised systems using menu options;
· contribute to the team in a specific role, providing input and assisting other team members; and
· work at times without supervision.
(b) Senior station hand is an employee who:
· has at least 2 years’ experience in the industry; and
· is capable of performing efficiently without supervision any of the tasks reasonably required of them.
Indicative of the tasks which an employee at this level may perform are the following:
· drive, maintain and operate farm vehicles and machinery;
· animal husbandry;
· stock handling;
· irrigation work; and
· use of chemicals.
31.6 Farm and livestock hand level 6 (FLH6)
An employee at this level includes :
(a) Feedlot employee level 3 who:
· has Certificate III qualifications;
· has worked in the feedlot industry for at least 2 years; and
· works with limited supervision with checking of their work related to overall progress.
Indicative of the tasks which an employee at this level may perform are the following:
· utilise ability to make independent work decisions;
· utilise Certificate III qualifications daily in the employee’s primary work area;
· perform cattle handling procedures;
· perform cattle health and welfare procedures;
· euthanase livestock;
· perform cattle post-mortem procedures;
· select livestock for specific markets;
· transport, handle and store chemicals applicable to primary work area;
· prepare and apply chemicals applicable to primary work area;
· operate moving plant and equipment competently and efficiently;
· perform grain processing procedures;
· perform feed manufacture and delivery procedures;
· perform hygiene and housekeeping procedures associated with the primary work area;
· perform feedlot and environment maintenance procedures;
· possess understanding of industry quality assurance programs and all site operating procedures; and
· carry out workplace work health and safety procedures.
31.7 Farm and livestock hand level 7 (FLH7)
An employee at this level includes:
(a) Senior dairy operator grade 1 who:
· uses their knowledge and skills to coordinate the operation of a farm process or area of expertise e.g. milking and animal attendance, pasture and farm maintenance, breeding programs and artificial insemination area.
Indicative of the tasks which an employee at this level may perform are the following:
· overview of all farm operations;
· show strong planning and organising abilities, develop work plans to achieve objectives;
· operate computer equipment and software packages requiring set-up and basic function operation;
· maintain equipment requiring modification, part replacement and overhauls;
· gather information, generate a range of options and implement a course of action to solve problems;
· demonstrate a comprehensive understanding of the dairy industry monitoring the industry through literature;
· use measuring equipment requiring calibration and measurement conversion;
· use established scientific processes in at least one area of specification;
· co-operate with other team members, establish priorities and work goals; and
· work with others to develop their competencies.
(b) Feedlot employee level 4 who:
· has Certificate III qualifications;
· has worked in the feedlot industry for at least 2 years; and
· works with limited supervision with checking of their work related to overall progress.
Indicative of the tasks which an employee at this level may perform are the following:
· utilise ability to make independent work decisions;
· utilise Certificate III qualifications daily in the employee’s primary work area;
· perform cattle handling procedures (where livestock operation is the primary work area);
· perform cattle health and welfare procedures (where livestock operation is the primary work area);
· euthanase livestock (where livestock operation is the primary work area);
· perform cattle post-mortem procedures (where livestock operation is the primary work area);
· select livestock for specific markets;
· transport, handle and store chemicals applicable to primary work area;
· prepare and apply chemicals applicable to primary work area;
· operate moving plant and equipment competently and efficiently;
· perform grain processing procedures (where feeding and milling operations is the primary work area);
· perform feed manufacture and delivery procedures (where feeding and milling operations is the primary work area);
· perform hygiene and housekeeping procedures associated with the primary work area;
· perform feedlot and environment maintenance procedures (where feedlot and environment maintenance operations is the primary work area);
· possess understanding of industry quality assurance programs and all site operating procedures;
· carry out workplace work health and safety procedures.
31.8 Farm and livestock hand level 8 (FLH8)
An employee at this level includes:
(a) Senior dairy operator grade 2 who:
Indicative of the tasks which an employee at this level may perform are the following:
· set and monitor work goals;
· anticipate potential problems/issues and determine the best course of action;
· approach the resolution of conflict using objectivity and reason, differentiating between the two;
· supervise other grades;
· where appropriate, seek to develop team performance and cohesion, taking into account competencies and the needs of team members;
· keep abreast of dairy industry trends and changes;
· where necessary, exercise foresight in relation to farm needs and make recommendations to farm management; and
· operate scientific processes necessary to achieve farm objectives.

SCHEDULE III: Table of Calculation from Respondent’s Response

Pastoral Award
Paid
Difference
Hours worked
OWED

Super


Casual Level 3







Jul-20
25.43
25
0.43
736.25
316.5875

28.49
9%
Jul-21
25.88
26
-0.12
1059.25

-127.11


Jul-22
26.53
26
0.53
824.65
437.0645

43.71
10%
Jul-23
27.84
27.27
0.57
867.85
494.6745

54.41
10.50%
Jul-24
29.44
27.27
2.17
521.25
1131.113

130.08
11%





2379.439

256.69