2026 WAIRC 00245
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00245



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 8 APRIL 2026



DELIVERED
:
THURSDAY, 23 APRIL 2026



FILE NO.
:
M 76 OF 2025



BETWEEN
:
AUSTRALIAN WORKERS' UNION


CLAIMANT





AND





SPARROWS SERVICES AUSTRALIA PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Failure to pay in full an amount for performance of work – Application of s 323(1) of the Fair Work Act 2009 (Cth) – Deductions made for agreed overpayment of allowance – Whether deductions made in compliance with s 324 of the Fair Work Act 2009 (Cth)
Legislation : Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Civil Judgments Enforcement Act 2004 (WA)
Instrument : Hydrocarbons Industry (Upstream) Award 2020
Cases referred
to in reasons: : Fair Work Ombudsman v McCrystal Agriculture Services Pty Ltd [2025] FedCFamC2G 1478
Re 4 yearly review of modern awards [2015] FWCFB 7236; [2018] FWCFB 3566; [2018] FWCFB 4735; [2019] FWCFB 6077; [2015] FWCFB 7173; [2019] FWCFB 7854.
Euro Car Parts Pty Ltd v Cannon [2024] FCA 828
APG Aus No 3 Pty Ltd v Quasar Resources Pty Ltd [2022] WASC 123
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
Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRC 350; (2008) 88 WAIG 626
Cuzzin Pty Ltd v Grnja [2014] SAIRC 36
Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72
Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886; (2018) 98 WAIG 1410
Result : The claim is proven
Representation:
Claimant : Mr B. Bullock (of counsel)
Respondent : Mr G. Bull (of counsel)



REASONS FOR DECISION
Background
1 Stephen Thomas (Mr Thomas) was previously employed by Sparrows Services Australia Pty Ltd (respondent) as a crane mechanic Exhibit 2 – Witness Statement of Stephen John Thomas signed on 10 February 2026 at [6].
from on or around 27 November 2023.
2 Mr Thomas was overpaid $1,195.50 in the pay period ending 4 October 2024, which was recovered by the respondent when it made two deductions of $597.50 from his pay in the pay periods ending 18 October 2024 and 1 November 2024.
3 Mr Thomas ceased employment with the respondent on 18 March 2025. Exhibit 3 – Witness Statement of Tegan Lauren Kay signed on 27 February 2026 (including amendment to [11] correcting ‘18 October 2025’ to ‘18 October 2024’) [13].
On 17 June 2025, the Australian Workers’ Union (AWU) lodged a claim alleging the respondent had contravened s 323(1) of the Fair Work Act 2009 (Cth) (FWA) by failing to pay Mr Thomas in full in relation to the performance of work when it:
(a) deducted $597.75 from his pay in the pay period 5 to 18 October 2024 which he did not authorise in writing and was not principally for his benefit; and
(b) deducted $597.75 from his pay in the pay period 19 October to 1 November 2024 which he did not authorise in writing and was not principally for his benefit (Claim). Originating Claim lodged 17 June 2025, [5].

4 The AWU seeks the following orders:
(a) compensation payable to Mr Thomas equivalent to the amount deducted ($1,195.50);
(b) interest on the compensation amount;
(c) the payment of a civil penalty in respect of the contravention; and
(d) the payment of any civil penalty to the AWU.
5 The respondent denies breaching s 323(1) of the FWA, the reasons for which were expanded on in its written and oral submissions.
6 Schedule 1 to these reasons outlines the jurisdiction, practice and procedure of the Industrial Magistrates Court (IMC or, the Court).
Agreed Facts Exhibit 1 – Statement of Agreed Facts lodged 22 December 2025.

7 The parties agree that the AWU has standing to commence the Claim, the respondent is a ‘national system employer’ as that term is defined under the FWA, and Mr Thomas was employed by the respondent as a ‘national system employee’ as that term is defined under the FWA.
8 The parties also agree that Mr Thomas was overpaid an amount of $1,195.50 (Overpayment) and the respondent deducted $597.50 from his pay in the pay periods ending 18 October 2024 and 1 November 2024 (Deductions).
9 Further, the parties agree that the Hydrocarbons Industry (Upstream) Award 2020 (Award) applied to and covered Mr Thomas’s employment by the respondent.
Other Evidence
10 To those agreed facts, I would also add the following evidence from witness statements of Mr Thomas and Tegan Kay (Ms Kay), which were uncontroverted.
11 Ms Kay is the Operations Manager – Australian & PNG, Exhibit 3 [3].
responsible for the respondent’s site operations, including human resources functions.
12 Mr Thomas was employed by the respondent pursuant to a contract of employment dated and signed on 28 November 2023 (Employment Contract).
13 According to Ms Kay, the Overpayment was identified after a former operations manager requested a payroll audit where Mr Thomas was incorrectly paid an offshore site allowance while working onshore under the terms of the Employment Contract. Exhibit 3 [6], [10], ATT1.

14 Ms Kay discussed the Overpayment with Mr Thomas during a telephone conversation on 18 October 2024. She told Mr Thomas that he had been incorrectly paid at the offshore rate when he should have been paid at the onshore rate for the ‘last fortnight’ (that is, for the period ending 4 October 2024) and that this was identified ‘today’. She also told Mr Thomas that because the value of the difference owed was more than $1,000, the respondent would organise for it to be reimbursed (to the respondent) over two pay instalments and a letter sent by the respondent’s human resources personnel. Exhibit 3 [11], ATT3.

15 Ms Kay said Mr Thomas acknowledged this course of action and ‘did not raise any objection’. Exhibit 3 [11].

16 The respondent’s letter dated 18 October 2024 identifies the Overpayment and the Deductions. It also identified the Overpayment applying to three offshore days instead of three onshore days. Exhibit 3 AAT3.

17 Mr Thomas was requested to indicate his acceptance of the terms of the respondent’s letter by signing and returning it to the respondent. It is common ground that Mr Thomas did not do so. Exhibit 3 [14].

18 This was consistent with Mr Thomas not responding in writing to other communications. Exhibit 3 [15]  [16].

19 Mr Thomas did not authorise in writing the Deductions. He did not receive any benefit as a result of the Deductions. Exhibit 2 [9].

20 Relevant to the issues in dispute, the Employment Contract provides at:
(a) Schedule 1, Item 11 ‘Rates of Pay’ – the relevant rates of pay in table form:
Item 11
Rates of Pay
(Monday to Sunday)
Rates of Pay Table
Definition
Amount
OFFSHORE WORKING DAY RATE
Payable for each day worked at site based on 12-hour day.
AU$ 500.00 per day
STANDBY RATE
Payable each day you are available for work, including periods of annual leave and certified sickness.
AU$ 165.00 per day
AUSTRALIAN TECH-ONSHORE WORKING DAY RATE
Payable for each day worked in the Perth Area (based on 8hour day).
AU$ 235.00 per day
MANDATORY TRAINING RATE/DAY
Payable for attendance on all training that is mandatory for working based on an 8hour day.
AU$ 235.00 per day
HOLIDAY PAY
Payable for each day of annual leave which is taken within field break.
AU$ 155.00 per day
(b) Statement of Terms and Conditions of Employment – the remuneration paid referrable to Schedule 1, Item 11 and the payment of wages, including reference to the deduction of any overpayments. Notably, remuneration includes reference to applicable allowances.
21 Schedule II to these reasons is the relevant terms of the Employment Contract in respect of remuneration and payment of wages.
The AWU’s Submissions
22 In summary, the AWU relies upon the terms of s 323(1), s 324 and s 326 of the FWA. The AWU submits that the Employment Contract does not overcome the terms of s 324 and s 326 of the FWA and the respondent was not permitted to deduct money from Mr Thomas’s wages in the manner it did.
23 The AWU also refers to the Fair Work Regulations 2009 (Cth) (Regulations) which identify when a deduction may be reasonable, which it submits do not apply to Mr Thomas’s circumstances.
24 The AWU expanded its submissions orally in response to the proposed orders sought as it relates to ‘compensation’. It is common for parties to refer to an order for ‘compensation’ as short hand for ‘an amount required to be paid’ by the employer under s 545(3) of the FWA.
25 The AWU identified that the ‘amount required to be paid’ by the respondent was the Overpayment where it says the respondent was not authorised to make the Deductions and failed to comply with s 323(1) of the FWA. In doing so, the AWU referred to Fair Work Ombudsman v McCrystal Agriculture Services Pty Ltd [2025] FedCFamC2G 1478 (McCrystal).
26 The AWU also referred to the respondent’s written submissions in respect of the potential ‘error’ in cl 17.2 of the Award, noting that no evidence had been led by the respondent to support an assertion that cl 17.2 contained an error in its drafting.
27 The AWU contends that it is not open to the respondent to ‘garnishee’ wages, it was not reasonable to make the Deductions when the Deductions were not authorised in writing, and an acknowledgment of the Overpayment by Mr Thomas is not an agreement and is not an agreement in writing.
The Respondent’s Submissions
28 The respondent submitted that it did not contravene s 323(1) of the FWA where there was no particularisation of what amount was not paid in full. Further, s 323(1) of the FWA is directed to the method and frequency of payments, and there was no allegation or contravention relevant to the respondent failing to pay within the required time by a particular method. As a result, the respondent submits that s 323(1) of the FWA is not made out.
29 However, if s 323(1) of the FWA applies, the respondent relies upon the terms of the Employment Contract permitting the Deductions pursuant to s 324(1)(a) of the FWA, where Mr Thomas signed the Employment Contract authorising the respondent to made deductions for overpayments. The respondent submits that this reflects Mr Thomas’s written authorisation for the Deductions, along with the telephone discussion with Ms Kay on 18 October 2024 and the respondent’s letter of the same date.
30 That is, the respondent submits this represented ‘legitimate mutual negotiations’ Respondent’s outline of submissions lodged 3 March 2026 [20], referring to the Explanatory Memorandum, Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Cth) [93].
for the Overpayment to be repaid by Mr Thomas. The Deductions were principally for Mr Thomas’ benefit because it avoided the need for formal legal proceedings and the Deductions were made over two months.
31 Alternatively, the respondent submits that the Deductions were authorised under the Award pursuant to s 324(1)(c) of the FWA. The respondent relies upon cl 17.2 of the Award, and submits that the reference to cl 16.8 in cl 17.2 of the Award was a drafting ‘error’.
32 Clause 17.2 of the Award provides:
An employer may deduct from any amount required to be paid to an employee under clause 16.8 the amount of any overpayment of wages or allowances. (emphasis added)
33 The respondent made extensive submissions on the drafting history of the Award and its reviews between October 2015 and November 2019, culminating in the current iteration of the Award. The respondent relied upon the Full Bench of the Fair Work Commission’s decisions in conducting four yearly reviews of modern awards, see Re 4 yearly review of modern awards [2015] FWCFB 7236; [2018] FWCFB 3566; [2018] FWCFB 4735; [2019] FWCFB 6077; [2015] FWCFB 7173; and [2019] FWCFB 7854.
The respondent invited the Court to accept that a drafting error resulted in the insert of the words ‘under clause 16.8’ in cl 17.2 of the Award.
34 In oral submissions, the respondent expanded and further explained its reasoning for why the insertion of the words ‘under clause 16.8’ was a drafting error, where it submitted these words made no sense in the context of the drafting history and in general.
35 The respondent says that on the AWU’s argument, an employer can never reach an agreement with an employee to repay an agreed overpayment because this would never be ‘reasonable’ for the purpose of s 326 of the FWA. The respondent says that reg 2.12 of the Regulations is not an exhaustive list.
36 The respondent says that an agreed overpayment with an acknowledgement that it needs to be repaid is a sufficient basis to satisfy the requirement that the Deductions were not unreasonable in the circumstances under s 326(1)(b) of the FWA. Therefore, the respondent submits the Deductions meet the requirements of both s 326(1)(a) and s 326(1)(b) of the FWA.
Statutory Framework
37 Section 323(1) of the FWA provides:
An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of methods referred to in subsection (2); and
(c) at least monthly.
38 Relevant to the Claim, s 324(1) of the FWA permits deductions from an amount payable to an employee in accordance with s 323(1) if:
(a) the deduction is authorised in writing by the employee and is principally for the employee's benefit; or
…
(c) the deduction is authorised by or under a modern award or [a Fair Work Commission] order.
39 Pursuant to s 324(2) of the FWA, the authorisation in s 324(1)(a):
(a) must specify:
(i) for a single deduction—the amount of the deduction; or
(ii) for multiple or ongoing deductions—whether the deductions are for a specified amount or amounts, or for amounts as varied from time to time; and
(aa) must include any information prescribed by the regulations; and
(b) may be withdrawn in writing by the employee at any time.
40 Pursuant to s 326(1) of the FWA:
A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work, if the deduction is:
(a) directly or indirectly for the benefit of the employer or a party related to the employer; and
(b) unreasonable in the circumstances.
41 The Regulations may prescribe circumstances in which a deduction referred to in s 326(1) of the FWA has no effect. Section 326(2) of the FWA and reg 2.12 of the Regulations.

42 The power to make orders in the IMC is set out in s 545(3) of the FWA as follows:
An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:
(a) the employer was required to pay the amount under this Act or a fair work instrument; and
(b) the employer has contravened a civil remedy provision by failing to pay the amount.
Case Law
43 In Euro Car Parts Pty Ltd v Cannon [2024] FCA 828; (2024) 304 FCR 349 (Euro Car Parts), the Federal Court considered the interrelationship between s 323 and the power of an ‘eligible State or Territory court’ The Court is an ‘eligible State or Territory court’ as defined in s 12 of the FWA.
to make orders under s 545(3) of the FWA.
44 Notwithstanding some of the factual circumstances in Euro Car Parts are different to those in the Claim and the claim involved an underpayment rather than an overpayment, certain principles are applicable and relevant. Distilling those principles:
(a) section 323 imposes a statutory obligation to pay an amount due in full, whether the amount was payable under statute, a contract or otherwise; Euro Car Parts [75].

(b) the source, or origin of the obligation to pay an amount, along with the specific amount to be paid may be contained in a contract but that does not preclude the statutory obligation to pay the contracted amount in full, in money and at least monthly; Euro Car Parts [82].

(c) section 323(1) does not identify the amount of money payable to an employee, but regulates when that amount is to be paid by requiring that all work performed by an employee must be paid for within at least one month after its performance (or shorter period); Euro Car Parts [83], referring to Qantas Airways Limited v Flight Attendants’ Association of Australia [2020] FCAFC 227; (2020) 282 FCR 243 (Qantas Airways) [97]  [98] (Bromberg J).
and
(d) in short, s 323(1) imposes an obligation on the employer to pay an employee for the performance of work done in a particular period and not for the performance of work whenever done. Euro Car Parts [83], referring to Qantas Airways [98] (Bromberg J).

45 The outcome of this analysis, including a discussion of related cases in Euro Car Parts, is that the Federal Court is satisfied that the Court has jurisdiction under s 545(3) of the FWA to make orders where the Court is satisfied that an employer is required to pay an amount under s 323(1), and is satisfied that the employer has contravened s 323(1) in failing to pay the amount.
46 It appears that for the purposes of s 323(1) of the FWA, the issue is not the source of the obligation to pay but whether the employer has paid all accrued amounts for work done by the employee in the required time period.
47 In McCrystal, the Federal Circuit and Family Court of Australia declared that McCrystal Agriculture Services Pty Ltd had contravened s 323(1) of the FWA by making deductions for overpayments made, thereby failing to pay in full amounts payable in relation to the performance of work. The declaration was made on the admission by the employer that it had deducted the overpayments in the following pay cycle, contrary to s 324 of the FWA. McCrystal [9]  [11]. Notably, other declarations were made but they are not relevant to the Claim.

48 Upon its admission of all the contraventions, the employer remitted the deducted amounts to its employees. There was no order made, either by way of compensation or by requiring the employer to pay an amount under the FWA or a fair work instrument.
Were Payments Made in Full?
49 The Overpayment was in relation to payment of the incorrect allowance for the period ending 4 October 2024. Exhibit 1 [5], Exhibit 3 [11](2).

50 As noted in the Employment Contract, the payment of ‘earnings’ was made fortnightly in arrears. Therefore, any payment made relevant to the period ending on 4 October 2024 must have been for work done by Mr Thomas between 21 September and 4 October 2024.
51 Similarly, the payment of ‘earnings’ made relevant to the period ending on:
(a) 18 October 2024 must have been for work done by Mr Thomas between 5 and 18 October 2024; and
(b) 1 November 2024 must have been for work done by Mr Thomas between 19 October 2024 and 1 November 2024.
52 Therefore, pursuant to s 323(1) of the FWA, the respondent was required to pay in full any amounts owed to Mr Thomas for the work done by him during the periods 5 to 18 October 2024 and 19 October to 1 November 2024 in the next applicable pay cycle.
53 Any deduction made from those amounts could only be made in accordance with s 324(1) of the FWA.
Could the Deductions be Made?
Section 324(1)(a) of the FWA
54 There are two limbs to s 324(1)(a) of the FWA:
(a) the employee’s written authorisation to deduct; and
(b) the deduction is principally for the employee’s benefit.
55 The respondent claims that the Deductions were authorised by Mr Thomas when he signed the Employment Contract acknowledging that any overpayments may be recovered by deduction from any subsequent payment to him, provided he was given the respondent’s requisite written notice.
56 With respect to the respondent, a general term about the purported authority to deduct in the Employment Contract does not comply with the requirements for an authorisation to deduct in s 324(2)(a)(ii) and s 324(2)(aa) of the FWA. That is, the general term in the Employment Contract does not specify whether the Deductions are for a specified amount and does not comply with requirements under reg 2.12A(2) of the Regulations.
57 Had Mr Thomas signed the respondent’s letter dated 18 October 2024, then the respondent may have, in part, complied with s 324(2)(ii) and s 324(2)(aa) of the FWA, but he did not and the terms of the Employment Contract do not fill that void.
58 The respondent further claims that the Deductions were principally for Mr Thomas’s benefit as they were split over two pay periods, and it obviated the need for Mr Thomas to attend as a party if the respondent sought to commence legal proceedings to recover the Overpayment in another jurisdiction.
59 With respect to the respondent, the Deductions were principally for the respondent’s benefit where it, in essence, lost its money because of the Overpayment. The principal benefit was for the respondent to recover its money without the need for other legal proceedings. To the extent that it needs to be said, nothing in Ms Kay’s evidence indicates that the conversation with Mr Thomas referred to avoiding the need to commence legal proceedings to recover the Overpayment and the possible consequence this may have for him. However, even if this was the case, it may not change the character of the benefit.
60 If the respondent commenced legal proceedings to recover the Overpayment and this had a detrimental effect upon Mr Thomas’s credit rating and he incurred costs in defending the proceedings, that is the risk he runs. In that sense, he may be the author of his own misfortune.
Section 324(1)(c) of the FWA
61 The authority to deduct under the terms of a modern award is not absolute. Pursuant to s 326(1) of the FWA, any deduction permitted under a modern award will be of no effect if the deduction is:
(a) directly or indirectly for the benefit of the employer or a party related to the employer; and
(b) unreasonable in the circumstances.
62 Regulation 2.12 of the Regulations provide for deductions that are or are not reasonable for the purposes of s 326(2) of the FWA.
63 Reasonable deductions provided for in reg 2.12(1) of the Regulations relate to, in general terms, the provision of goods or services by an employer to an employee.
64 Reasonable deductions provided for in reg 2.12(2) of the Regulations relate to, in general terms, costs incurred by the employer where the employee uses for private use the employer’s property, such as corporate credit cards to purchase personal items.
65 A circumstance provided for in reg 2.12(3) of the Regulations, which is not a reasonable deduction, is a deduction for an amount that may be varied from time to time.
66 For the same reasons as given in respect of s 324(1)(a) of the FWA, the Deductions were not for Mr Thomas’s benefit and were made to recover the Overpayment, being the respondent’s monies. The Deductions were for the respondent’s benefit.
67 Further, the Deductions bore no resemblance to what might be considered reasonable under reg 2.12 of the Regulations. In addition, the reason for the Deductions relied upon by the respondent was in part to avoid the need to commence legal proceedings against Mr Thomas, which, for the same reasons as given in respect of s 324(1)(a) of the FWA, was not reasonable in the circumstances. In making the Deductions, the respondent also avoided legal proceedings in another jurisdiction. As already stated, if Mr Thomas assumes the litigation risk that is a matter for him.
68 Therefore, while the respondent made extensive submissions on the purported error in cl 17.2 of the Award, it is not necessary to resolve this issue. Where findings have been made that the Deductions were for the benefit of the respondent, or alternatively the Deductions were not for the benefit of Mr Thomas, and the Deductions were not reasonable in the circumstances, cl 17.2 of the Award has no effect pursuant to s 326(1) of the FWA irrespective of the inclusion of the words ‘under clause 16.8’.
Outcome
69 The Deductions were not authorised in compliance with s 324(1)(a) or (c) of the FWA.
70 Accordingly, the respondent was not entitled to make the Deductions for the performance of work done in the fortnights ending 18 October 2024 and 1 November 2024. Consequently, the respondent did not pay in full the amounts payable to Mr Thomas in relation to the performance of work for the weeks 5 to 18 October 2024 and 19 October to 1 November 2024.
71 As a result, I am satisfied the AWU has proven to the requisite standard the respondent contravened s 323(1) of the FWA in failing to pay the amounts in full to Mr Thomas as claimed by the AWU for work performed for the weeks ending:
(a) 18 October 2024; and
(b) 1 November 2024.
72 The AWU seeks an order that the respondent pay compensation to Mr Thomas equivalent to the amount deducted where that amount is identified on the originating claim, namely $1,195.50.
73 This was discussed during the hearing. The Court is not empowered to make an order for compensation under s 545 or s 545(3) of the FWA. However, it was apparent the parties in the agreed facts understood the Claim and the Deductions made forming the alleged contraventions of s 323(1) of the FWA.
74 It is also apparent that having regard to Euro Car Parts, the Court is empowered to make an order in respect of s 323(1) of the FWA where it is satisfied that the employer is required to pay an amount to the employee under s 323(1) of the FWA and the employer has contravened a civil remedy provision by failing to pay the amount. A contravention of s 323(1) of the FWA is a contravention of a civil remedy provision.
75 Therefore, notwithstanding the poor expression of the orders sought, I am satisfied that the respondent was required to pay to Mr Thomas $597.50 for work performed for the weeks ending 18 October 2024 and 1 November 2024.
Pre-Judgment Interest
76 The AWU applied for pre-judgment interest under s 547(2) of the FWA. On application, the Court must include an amount of interest in the sum ordered on an amount that a person was required to pay under s 545(3) ‘unless good cause is shown to the contrary’.
77 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 Court 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) (CJEA). IMC Regulations reg 12(1)(b).

78 Regulation 4 of the CJEA prescribes an interest rate of 6% per annum.
79 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.
80 Subject to s 547(2), the Court has a discretion to award interest at such a rate it thinks fit on the whole or any part of the judgment.
81 In exercising this discretion, the Court should consider that ‘interest is awarded to compensate the plaintiff for the detriment that [they have] suffered by being kept out of [their] money, and not to punish the defendant for having been dilatory in settling the plaintiff’s claim.’ APG Aus No 3 Pty Ltd v Quasar Resources Pty Ltd [2022] WASC 123 (S) [8] (Tottle J) referring to Batchelor v Burke [1981] HCA 30; (1981) 148 CLR 448, 455.

82 The ordinary approach the Court takes is pursuant to regulation 12(1) of the IMC Regulations. This involves working out the daily rate by multiplying the judgment amount with the CJEA rate and dividing that by 365. The date range adopted by the Court is from 1 November 2024 to 23 April 2026. Section 547(3) of the FWA.

83 Based on this approach, pre-judgment interest is fixed at $105.92. 539 days with a day rate of $0.20.

Orders
84 The following orders are made:
(1) Pursuant to s 545(3) of the FWA, the respondent is ordered to pay $1,195.50 to Mr Thomas.
(2) Pursuant to s 547 of the FWA, the respondent is pay $105.92 in interest on the amount ordered.
85 The AWU has sought a civil penalty in respect of the contraventions found by the Court. I will hear from the parties on programming the hearing of the penalty proceedings.




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 jurisdiction of the IMC under the FWA is primarily defined by three provisions:
(1) Section 539 of the FWA identifies the civil remedy provisions of the FWA which may be the subject of an application to an eligible state or territory court;
(2) Section 545(3) of the FWA describe the criteria for an eligible state or territory court to make an order for an employer to pay an amount to an employee upon the contravention of a civil remedy provision; and
(3) Section 546(1) of the FWA provides for the making of a pecuniary penalty order upon the court being satisfied of a contravention of a civil remedy provision.
[5] Section 539 of the FWA identifies, from among the several civil remedy provisions of the FWA, the particular civil remedy provisions for which application may be made to an eligible state or territory court ‘for orders in relation to a contravention or proposed contravention of the provision’. The provision also identifies, for each civil remedy provision, the person with standing to make application to the relevant court and, expressed in penalty units, the maximum penalty for a contravention.
[6] The civil penalty provisions identified in s 539 of the FWA include:
· Section 323 – failing to pay in full an amount for the performance of work.
[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 FWA or a fair work instrument (emphasis added): FWA s 545(3)(a).
[10] The civil penalty provisions identified in s 539 of the FWA includes the provisions set out in pt 2 - 9 of the FWA: FWA s 323(1), 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.
[17] Section 551 of the FWA provides that ‘a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention’. It has been held that the effect of the provision is that an ‘eligible State or Territory court’ is required to apply the rules of evidence found in the common law and relevant state legislation when a claim concerns the contravention of a civil remedy provision of the FWA: Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRC 350; (2008) 88 WAIG 626; Cuzzin Pty Ltd v Grnja [2014] SAIRC 36, [14]. In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72, [94] - [108] White J (with whom Mortimer and Bromwich JJ agreed) undertook a comprehensive analysis of the issue in the context of contravention proceedings before a state court of South Australia, the former Industrial Relations Court of South Australia.
[18] In a schedule to the judgment in Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886; (2018) 98 WAIG 1410, the IMC gave reasons for concluding that the law of evidence applied by a state court of general jurisdiction when exercising jurisdiction in non-criminal matters, including the Evidence Act 1906 (WA), was to be applied by the IMC when determining a claim alleging the contravention of a civil remedy provision of the FWA and seeking the imposition of a penalty.
SCHEDULE II: Exhibit 3 ATT1 Excerpt – Employment Contract Terms and Conditions
Remuneration
Your hourly rates of pay are as described in Item 11 of Schedule 1 of this document.
Your hourly rates of pay as described in Item 11 of Schedule 1, includes all amounts you may be entitled to under the terms of any applicable industrial instrument.
Unless otherwise agreed, the hourly rates of pay as described in Item 11 of Schedule 1 are inclusive of any other remuneration received or receivable by you in respect to any other position held by you in the Company or any of its related bodies corporate.
Unless otherwise provided for in this Agreement, you agree that your hourly rates of pay (and any additional amounts paid to you during your employment) compensates you for all entitlements, benefits or payments that might otherwise arise under an applicable industrial instrument or statute for the purpose of your employment, including, but not limited to:
(a) minimum wage rates;
(b) leave loadings
(c) overtime;
(d) penalty payments for out of hours work or working weekends and public holidays;
(e) shift loadings;
(f) allowances;
(g) any other loadings, penalties, allowances, or other entitlements, whether monetary or otherwise.
The remuneration and benefits provided under this contract have been structured to provide fair compensation for the role, considering all of the requirements of the role including the required days and hours of work, any occasional additional Altrad requirements and any disabilities and expenses involved in the performance of the role.
You agree that, in the event that a determination should be made at any time by a relevant authority to the effect that the award conditions such as overtime, shift and weekend loadings or penalty payments, loadings, allowances and/or any other rateable condition of employment, have not been provided such conditions will be deemed to be set-off against the overall remuneration and benefits provided under this contract.
Set off payments against a claim for an entitlement under an applicable industrial Instrument can continue after this contract terminates.
Payment of Wages
Your earnings will be paid fortnightly in arrears by electronic funds transfer direct to your nominated bank account.
In the event of overpayment of earnings to you, the Company may recover the amount of the overpayment by way of deduction from any subsequent payment due to you, provided you are given written notification of the Company’s intention to recover the overpayment, the amount to be recovered and an explanation of the reasons for the overpayment.