2026 WAIRC 00901
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00901



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 3 SEPTEMBER 2026



DELIVERED
:
FRIDAY, 2 OCTOBER 2026



FILE NO.
:
M 79 OF 2026



BETWEEN
:
ANTONIO NAHUM ESQUIVEL MURILLO


CLAIMANT





AND





KARDAN AUSTRALIA PTY LTD (ABN 40 636 258 207)


RESPONDENT

CatchWords : INDUSTRIAL LAW – Small claims procedure under the Fair Work Act 2009 (Cth) – Alleged failure to pay in full for the performance of work under s 323 of the Fair Work Act 2009 (Cth) – Whether it was necessary for the requirement to work additional hours be expressly given – Whether it was sufficient for the requirement to work additional hours to be impliedly given – Whether the claimant worked the additional hours claimed – Turns on own facts
Legislation : Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Superannuation Guarantee Charge Act 1992 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Civil Judgments Enforcement Act 2004 (WA)
Civil Judgments Enforcement Regulations 2005 (WA)
Instrument : Building and Construction General On-Site Award 2020 [MA000020]
Cases referred
to in reasons: : Australian Salaried Medical Officers’ Federation v Peninsula Health [2023] FCA 939; (2023) 325 IR 26
Logan v Otis Elevator Company Pty Ltd; [2001] IRCA 1; (2001) 107 IR 253
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595
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 : Claim proven
Representation:
Claimant : Self-represented
Respondent : Mr K. Bohan (General Manager)



REASONS FOR DECISION
1 Antonio Nahum Esquivel Murillo (the claimant) was employed by Kardan Australia Pty Ltd (Kardan) for approximately four weeks from 7 April 2026 to about 5 May 2026 as a casual lead estimator, primarily working on a tender for a Western Australian Government project (the Tender).
2 The claimant alleges that Kardan failed to pay him the required hourly rate for 34 hours of work undertaken by him across two pay periods from 20 April to 3 May 2026, which he calculates at $3,822.
The Claim and the Response
3 On 28 May 2026, the claimant lodged an originating claim, electing to apply the small claims procedure. The claimant alleges the respondent contravened the Fair Work Act 2009 (Cth) (FWA) by failing to pay him in full for hours worked for the period from 20 April to 3 May 2026.
4 The claimant alleges that he was employed on an agreed contractual rate of $78 per hour and that his employment was ‘governed’ by the FWA and the Building and Construction General On-Site Award 2020 [MA000020] (the Award).
5 The claimant alleges that for the pay period ending:
(a) 26 April 2026, he worked 60 hours in the week and was paid for 40 hours. He calculates the alleged underpayment for the week as $2,730; and
(b) 3 May 2026, he worked 40 hours in the week and was paid for 26 hours. He calculates the alleged underpayment for the week as $1,092.
6 The claimant seeks an order for the payment of $3,822 being the payment in full for all hours worked. I infer from the words used, that the claimant refers to s 323 of the FWA.
The claimant also seeks an order for the payment of the ‘applicable superannuation contribution’ to his nominated superannuation fund I infer from the words used, that the claimant refers to s 116B of the FWA.
and pre-judgment interest (the Claim).
7 Kardan admits that the claimant was employed as a casual lead estimator at a rate of $78 per hour; that the FWA and the Award covers both the claimant and Kardan and applies to the claimant’s employment. See Exhibit 1 – Witness Statement of Antonio Nahum Esquivel Murillo signed on 16 July 2026 at Annexure A, which was not disputed by Kardan.

8 Kardan says that the claimant’s employment ceased by way of a letter of termination dated 5 May 2026.
9 Otherwise, Kardan accepts the claimant submitted a time sheet claiming 60 hours of work undertaken for the week ending 26 April 2026 but says that it adjusted the claimed hours worked by reducing it to 40 hours in the exercise of its management right to review and approve time sheet submissions. For the week ending 26 April 2026, the claimant was paid for the adjusted and approved hours.
10 Kardan alleges that it gave no direction or requirement for the claimant to work additional hours over 40 hours for the week ending 26 April 2026.
11 Kardan accepts the claimant submitted a time sheet claiming 40 hours of work undertaken for the week ending 3 May 2026, but again it says it adjusted the claimed hours worked reducing it to 26 hours in the exercise of its management right to review and approve time sheet submissions. For the week ending 3 May 2026, the claimant was paid for the adjusted and approved hours.
12 Kardan alleges that it gave no direction or requirement for the claimant to work additional hours over 26 hours for the week ending 3 May 2026, and that the claimant had been expressly provided written notice that prior approval was required before the pay period commenced to work additional hours.
13 Further, Kardan alleges the claimant did not record his hours by clocking in and clocking out of its recording system, called ‘time2u’, but instead made manual retrospective entries, which Kardan cannot substantiate as time worked by the claimant.
14 Therefore, Kardan submits the claimant cannot substantiate the additional time worked as claimed and any alleged additional time worked was not authorised by Kardan.
15 Schedule I to these reasons is the jurisdiction, practice and procedure in the Industrial Magistrates Court of Western Australia (the Court).
Issues for Determination
16 The legal issues for determination are:
(a) whether it was necessary for Kardan to request or require the claimant to undertake additional hours of work before any entitlement to payment arose;
(b) if a request or requirement was necessary, whether it had to be express or whether it could be implied; and
(c) the nature and extent of any payment obligation arising from the performance of those additional hours (if any).
17 The factual issues for determination are:
(a) whether the claimant worked additional hours on the Tender; and
(b) if so, what additional hours did he work.
18 In part, determination of the legal issues involves construction of terms of the Award and consideration of the terms of the Offer Letter.
19 Schedule II to these reasons are the relevant principles to be applied when interpreting an industrial instrument.
Evidence Not in Dispute
20 The claimant relied upon his witness statement signed on 16 July 2026 with various annexures. The claimant also gave oral evidence and was cross-examined on his evidence.
21 Kardan relied upon the witness statement of Ken Bohan (Mr Bohan) signed on 21 August 2026 with various annexures referred to therein Exhibit 2 – Witness Statement of Ken Bohan signed on 21 August 2026.
and Roberto Soriano (Mr Soriano) signed on 21 August 2026 with various annexures referred to therein. Exhibit 7 – Witness Statement of Roberto Soriano signed on 21 August 2026.
Mr Bohan and Mr Soriano gave oral evidence and were cross-examined on their evidence.
22 Mr Bohan is Kardan’s General Manager responsible for Kardan’s business operations. Exhibit 2 [1].

23 Mr Soriano is Kardan’s Project Director and was the claimant’s manager. Exhibit 7 [1].

24 Kardan also tendered a number of documents into evidence via Mr Bohan. Exhibits 3 to 6.

25 Further to the agreed facts referred to above, it is not in dispute that Kardan employed the claimant pursuant to a letter of offer dated 2 April 2026, which was signed by the claimant (the Offer Letter). The claimant commenced employment on 7 April 2026.
26 The terms of the Offer Letter included that the conditions of the claimant’s employment were set out in the Offer Letter, the Award and applicable legislation such as the National Employment Standards (NES) under the FWA. Exhibit 1, Annexure A.

27 Relevant to the claim, the Offer Letter stated the following in respect of the claimant’s hours of duty:
Normal operational hours are between 6:00am to 6:00pm Monday to Friday (Excluding Public Holidays).
The business generally schedules work to commence at 7:00am, however this may be changed as each project needs are addressed. Any hours worked outside of the normal operational hours of 6:00am to 6:00pm will be at penalty rates.
Your hours will total 40 hours per week (30 mins unpaid lunch break per day); plus, you may be required to work reasonable additional hours as required by the business, taking into account operational requirements, your personal circumstances, and applicable legislation. (emphasis added) Exhibit 1, Annexure A.

28 The claimant’s role included working on the Western Australian Government Tender with a deadline of 2.30 pm AWST on 1 May 2026 (this deadline may have been extended on 23 April 2026 to 1 May 2026). Exhibit 1 [5].

29 The claimant is located in New Zealand and worked remotely during the time he was employed by Kardan. Exhibit 1, see also Exhibit 7 [5].
There is a five-hour time difference between Western Australia and New Zealand.
30 The claimant submitted a time sheet for the first week of employment for the period from 7 to 12 April 2026. He did so by submitting manual time sheets at the end of each period, rather than by using Kardan’s daily time recording system. ts 14.
He submitted a time sheet for 48 hours worked in this period and was paid 48 hours by Kardan, which included being paid 16 hours at the relevant overtime rates. Exhibit 1 [4], Annexure E.

31 The claimant similarly submitted a manual time sheet for the second week of employment for the period from 13 to 19 April 2026. He submitted a time sheet for 60 hours worked in this period and was paid 60 hours by Kardan, which included being paid 20 hours at the relevant overtime rates. Exhibit 1 [4], Annexure E.

32 The claimant again submitted a manual time sheet for the third week of employment for the period from 20 to 26 April 2026. He submitted a time sheet for 60 hours worked in this period and was paid 40 hours by Kardan at the rate of $78 per hour on or around 28 April 2026 (the Third Payment). Exhibit 1 [4], Annexure E.

33 The claimant again submitted a manual time sheet for the fourth week of employment from 27 April to 3 May 2026. He submitted a time sheet for 40 hours worked in this period and was paid 26 hours by Kardan at the rate of $78 per hour on or around 5 May 2026 (the Fourth Payment). Exhibit 1 [4], Annexure E.

34 Kardan agrees that the claimant submitted the manual time sheets at the end of the third and fourth weeks of employment in the hours he sought to be paid and Kardan agrees that it made the Third and Fourth Payments, which were for less hours than claimed by the claimant.
35 On 29 April 2026, the claimant raised a query by email about the Third Payment. Exhibit 1, Annexure C.
Mr Soriano responded on the same day stating:
Any overtime needs to be approved prior is [sic] done.
We passed the first two weeks due to the start firing the RFQ and doing the take off.
We will have a review of the hours after the submission with a review of the submission. Exhibit 7 [32], Annexure C (email from Mr Soriano sent 29 April 2026 at 10:57 am AWST).

36 The claimant responded to this email stating:
Please notice that I was NOT aware that Overtime above 40 hrs needed to be approved (as I’m on hourly rate, not on fix salary, hence it’s assumed I get paid for the hours needed to complete the job)
otherwise I don’t have benefit of a 1 week notice period as a Full time.
Please CONFIRM if this week you need more than 40 hrs, otherwise I can see we will need it as its final review/submission. You need to approve BEFORE, not deciding after.
Just to be fair, as I’m on Casual, not on Full Time.
as long as I know how many hours, then to stop… but Tenders like this one are high demand hours unfortunately.
This week is basically been 2 days already working 12 hrs (one to complete the full breakdowns requested for easier review and yesterday for the last day of many quotes arriving at the same time)
I will slow down to 8 hrs only starting today. Exhibit 1, Annexure C (email from the claimant sent 29 April 2026 at 3.14 pm NZST (or, 11.14 am AWST)).

37 Between 30 April 2026 and 1 May 2026, a number of email communications were sent between the claimant, Mr Soriano and Mr Bohan about the Tender. This also included a Microsoft Teams meeting between the claimant, Mr Soriano and Mr Bohan on 30 April 2026 at 12.44 pm AWST. Exhibit 2 [6].

38 The Tender was submitted on 1 May 2026.
39 On 5 May 2026, Kardan terminated the claimant’s employment by written notice. Exhibit 2, Annexure J.

40 Following the Fourth Payment, the claimant informed Kardan that he had made a complaint to the Fair Work Ombudsman, which resulted in email communication between the claimant and Mr Bohan on 6 May 2026 highlighting the issues in dispute between the parties. Exhibit 1, Annexure D; Exhibit 2, Annexure K.

Evidence in Dispute
41 The disputed evidence is directed primarily to Kardan’s contention that the claimant:
(a) cannot substantiate he worked an additional 34 hours to meet urgent deadlines for the Tender;
(b) used an unauthorised model to complete the Tender, which was not part of any management direction and therefore does not give rise to an entitlement to ‘additional pay’; and
(c) was neither approved nor required to work additional hours in the third and fourth employment periods.
42 It was common ground during the hearing that the claimant did not keep his own records of any time he worked on the Tender. At the conclusion of the third and fourth employment weeks, the claimant submitted time sheets recording the hours he says he worked on the Tender. How he recorded those hours remains unclear, given the claimant’s vague evidence on the issue. See ts 13  14.

43 Kardan relies on its policy requiring employees, including the claimant, to use its time recording system. It was common ground the claimant did not do this and instead made manual time sheets.
44 Both parties rely upon Tender documents Referred to in Exhibit 1 at Annexure F and G; see also Exhibit 2 and documents referred to in the Respondent’s Bundle of Documents.
to establish their respective position:
(a) from the claimant’s perspective, the Tender was complex and had to be completed within a relatively short period of time, where he commenced work on it one week after submissions opened; and
(b) from the respondent’s perspective, the claimant did not fully comply with its tender submission model and, as a consequence, it was required to raise various issues regarding the claimant’s estimates that it contends would otherwise have been unnecessary.
45 The difficulty for the Court is that the Tender documents do not permit an assessment of whether the claimant spent too much time, sufficient time, or an otherwise reasonable amount of time working on the Tender. Nor do they enable an assessment of whether the time spent was necessary or unnecessary, or what amount of time was reasonably required for a tender of this kind.
46 In the absence of independent expert evidence undertaking a forensic assessment of the time spent working on the Tender, compared with what would be considered reasonable or consistent with industry standards for a tender of this type, the Court is left with a collection of documents and the parties’ differing, firmly held, opinions on the work required to complete the Tender.
47 In summary, in respect of any approval given or a requirement to undertake hours of work in excess of 40 hours:
(a) the claimant’s evidence is that no one ever informed him that he required authorisation to work more than 40 hours per week. He relies on the Offer Letter, which states that he may be required to work reasonable hours in excess of 40 hours per week. He also says that he was asked to continue working and that Kardan had established a precedent by paying him for additional hours worked during the first and second weeks of his employment. From the claimant’s perspective, Kardan could have directed him to cease working additional hours but did not do so. Instead, Mr Soriano generated further work by asking numerous questions. The claimant’s position is that, if he was required to continue working, he should be paid for the additional hours worked. The claimant denied that he was required to seek approval to work 60 hours per week, having regard to the terms of the Offer Letter and what he says was the precedent established by Kardan. By way of example, he referred to an email sent by Mr Soriano at 6.17 pm AWST on the day before the Tender was due (30 April 2026), requesting numerous changes to the estimates; Exhibit 1, Annexure H.
and
(b) Kardan’s evidence is that it never approved the claimant working additional hours during the third and fourth weeks of his employment. Kardan’s position is that, where an employee works additional hours without prior approval, the employee is required to justify those hours, and Kardan is entitled to adjust the hours claimed if the justification is not accepted. ts 49.
It is then a matter for the employee to challenge any adjustment. Mr Bohan said that this was the process applied to the claimant’s time sheets for the third and fourth weeks of his employment and that the claimant did not provide adequate justification for the additional hours claimed. ts 49  50

48 Mr Bohan and Mr Soriano gave evidence that Kardan accepted the additional hours submitted by the claimant during the first and second weeks of his employment because they accepted that some additional time was required for onboarding. Exhibit 7 [15]  [16].

49 Mr Soriano agreed he did not discuss with the claimant any adjustment to his claimed hours of work before reducing the hours paid in the third and fourth weeks of his employment. ts 56  57.

Consideration of Terms in the Award
50 As provided for in the Offer Letter, cl 3 of the Award provides that the NES contains the minimum conditions of employment for employees covered by the Award, which includes the claimant.
51 Clause 8 of the Award provides that employees will be employed in one of four categories of employees, and relevant to the claimant, at cl 8.1(d), this includes as a casual employee.
52 Unlike that for full-time and part-time employees, the Award does not expressly provide for the ordinary hours of work per week, but, relevant to the claimant, at cl 12.5, states:
A casual employee required to work overtime or weekend work will be entitled to the relevant penalty rates prescribed by clauses 29—Overtime and 30—Penalty rates, provided that:
(a) where the relevant penalty rate is 150%, the employee must be paid 175% of the ordinary hourly rate prescribed for the employee’s classification; and
(b) where the relevant penalty rate is 200%, the employee must be paid 225% of the ordinary hourly rate prescribed for the employee’s classification.
53 Clause 29 of the Award provides for overtime, as follows:
(a) clause 29.1(a) states that subject to s 62 of the FWA and cl 29.1, an employer may require an employee to work reasonable overtime hours at overtime rates;
(b) clause 29.1(b) states that an employee may refuse to work overtime hours if they are unreasonable; and
(c) clause 29.1(c) outlines the factors to be taken into account in determining where overtime hours are reasonable or unreasonable for the purpose of cl 29.1; that is for the purpose of determining the reasonableness or unreasonableness of the requirement to work overtime hours.
54 Pursuant to cl 29.4(b) of the Award, a casual employee must be paid in accordance with the overtime rates in cl 12.5.
55 Therefore, when read together there is clear provision in the Award for the payment of overtime to casual employees. The question is when does overtime apply in respect of hours of work by casual employees?
56 Section 62 of the FWA states:
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee – 38 hours; or
(b) for an employee who is not a full-time employee – the lessor of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
57 The maximum number of weekly hours is a minimum condition of employment under the NES and cannot be displaced. Section 61(2)(a) of the FWA.

58 For the purposes of Part 2-2 of the FWA (the NES), the term employee means a ‘national system employee’ and the term employer means a ‘national system employer’. Section 60 of the FWA.

59 The claimant is a national system employee employed by a national system employer. Section 13 and s 14(1) of the FWA where Kardan is a Constitutional Corporation and where it employs an individual.

60 Therefore, the maximum number of weekly hours of work to be worked by the claimant, even as a casual employee, was 38 hours per week in accordance with s 62(1)(b)(i) of the FWA.
61 Thereafter, pursuant to s 62(2) of the FWA, an employee, including the claimant, may refuse to work additional hours if they are unreasonable, and in determining whether the additional hours were reasonable or unreasonable, s 62(3) outlines the factors to be taken into account.
62 The factors outlined cl 29.1(c) of the Award mirror the factors outlined in s 62(3) of the FWA.
63 Accordingly, if and where the maximum number of weekly hours of work for a casual employee is 38 hours pursuant to the NES, the maximum number of weekly hours of work for a causal employee covered by the Award is also 38 hours per week. The result being that under the terms of the Award any hours of work required to be worked over 38 hours per week by a casual employee are overtime hours.
Whether it was Necessary for Kardan to Request or Require the Claimant to Undertake Additional Hours of Work?
64 Having regard to the terms of the Award, and consistent with authorities on a similar issue, Australian Salaried Medical Officers’ Federation v Peninsula Health [2023] FCA 939 (Peninsula Health) [74]  [75].
cl 29.1(a) contemplates there will be a request or requirement made by the employer. Absent such a request or requirement, there can be neither a refusal by the employee nor consideration of whether the requirement or refusal is reasonable or unreasonable. If the employee does not refuse a request or requirement and works the overtime hours, the employer is then required to pay the employee at the relevant overtime rate.
65 Further, and again consistent with the authorities, that construction makes industrial sense. It balances the employee’s entitlement to be paid for work requested or required by the employer with the employer’s entitlement not to pay overtime rates for work that it neither requested, required, nor otherwise directed to be performed.
66 The Offer Letter employs similar language to that used in the Award. It provides that the claimant may be required to work reasonable additional hours beyond 40 hours per week, as required by Kardan, having regard to operational requirements; the claimant’s personal circumstances; and applicable legislation. Applicable legislation includes s 62 of the FWA.
67 The claimant contended that the terms of the Offer Letter meant that he was not required to obtain Kardan’s authorisation or permission before undertaking additional work over 40 hours per week. His position was that if Kardan asked for work to be done and that work required him to work more than 40 hours, Kardan is obliged to pay him for those additional hours.
68 I do not wholly accept the claimant’s contention. The claimant’s reliance on the Offer Letter focuses on the performance of reasonable additional hours, rather than on whether those additional hours were in fact requested or required by Kardan.
69 When the ‘Hours of Duty’ clause in the Offer Letter is read as a whole, it is apparent that any requirement to work additional hours is predicated upon Kardan having an actual need for additional work to be performed. Once such a requirement exists, the terms of the Offer Letter engage cl 29.1(c) of the Award and s 62(3) of the FWA.
70 Similar to the construction of cl 29.1(a), this construction of the ‘Hours of Duty’ clause makes commercial sense. Otherwise, employees might conclude that they are entitled to work additional hours performing duties that could reasonably be completed within their ordinary hours and thereby incur an entitlement to overtime payments.
71 I accept that the terms of the Offer Letter could have been expressed more clearly. However, I do not accept that the Offer Letter permitted the type of unrestricted arrangement suggested by the claimant.
If a Request or Requirement was Necessary, Whether it Needed to be Express or Whether it Could be Implied
72 While the claimant did not use the word implied when referring to any requirement or authorisation by Kardan to perform work in excess of 40 hours per week, that contention was implicit in both his written contentions and oral evidence. The claimant’s evidence was that he had never been informed that he required authorisation to work additional hours. He said that Kardan continued to ask him to undertake work, that he was paid for additional hours worked during the first and second employment periods, and that the Offer Letter contemplated that he may be required to work additional hours.
73 Kardan contended that any overtime work was required to be approved or authorised in advance. However, from Kardan’s evidence it appears that employees submitted claims for overtime which were then subject to review and adjustment, either upwards or downwards, by Kardan. Exhibit 2 [19].
There was no formal process governing the obtaining of prior approval for overtime work. ts 41  42.

74 In considering whether a request or requirement by Kardan to perform additional hours of work, thereby engaging an obligation to pay overtime, was required to be express and made in accordance with a process adopted by the employer, or whether such a request or requirement could be implied, the observations of Bromberg J in Peninsula Health, at [78], are apposite:
It is well to commence that assessment by considering context. The context here is the practical field of the allocation of additional work by an employer to its employees in the midst of an ongoing employment relationship. In such a relationship, some of what the employer requires of the employee, in terms of how, when and where the employee should provide his or her services in the conduct of the employer’s business, may be expressly set out in the employee’s contract of employment, position description or verbally by the employer upon the employee commencing employment. However, the practicalities of a working relationship are not ordinarily conducive of formalism or prescriptive instructional processes as there are a myriad of circumstances and tasks that are part of an employee’s job that cannot, and need not, be foreshadowed in advance. As such, much of what is required of an employee must necessarily be left to be implied and, when what is required by the employer is the subject of a specific request, instruction or direction, that will almost always be done informally. Employees will necessarily be required to infer, from generalised expectations set by an employer, the custom and practice of the workplace, ongoing general arrangements, the nature of the work and the nature of their duties and skills (amongst other surrounding circumstances), what it is that their employer specifically requires of them in any given circumstance and therefore what it is they are authorised to do in a given and specific situation.
75 His Honour then discussed examples demonstrating that an employer’s authorisation for overtime to be worked may be inferred from the circumstances of the case, including in Logan v Otis Elevator Company Pty Ltd [2001] IRCA 1; (2001) 107 IR 253 (Logan) where Moore J:
[C]onstrued an award provision that provided that an employer ‘may require’ an employee to work reasonable overtime as at least implicitly providing that the overtime work performed pursuant to such a requirement had to be expressly or impliedly authorised by the employer in order to attract payment. Peninsula Health [82] referring to Logan [40].

76 As further observed by Bromberg J in Peninsula Health, at [82], Moore J in Logan held that:
[A]uthorisation for the performance of overtime impliedly flowed from the expectation that the employee would work 40 hours per week to complete his duties, even though neither the employer nor the employee were aware that an award applied to the employee’s employment which provided that work beyond the prescribed 38 hour week had to be paid for at overtime rates.
77 There are obvious parallels between the claimant’s case and Logan. In the present case, neither the claimant nor Kardan appeared to appreciate that the claimant’s ordinary hours of work were limited to 38 hours per week and that hours worked beyond that limit attracted overtime rates.
78 The clause concerning reasonable overtime considered in Logan (cl 14(b)) is similar in substance to cl 29.1(a) of the Award. In that context, Moore J observed that it was at least implicit that work attracting overtime rates had to be either expressly or impliedly authorised. Logan [40].

79 Similarly in Peninsula Health, at [89], Bromberg J concluded that, under the terms of the relevant enterprise agreement, an authorisation impliedly given to an employee for that employee to perform work in excess of rostered hours would require the payment of overtime for that work.
80 Based on Mr Bohan’s evidence, there was no formal process for approving or authorising overtime work. At most, there may have been a discussion with employees at the commencement of their employment. Thereafter, at least some claims for overtime payment appear to have been assessed retrospectively.
81 Accordingly, having regard to the terms of both the Offer Letter and the Award, I am satisfied that a requirement or authorisation, whether express or implied, for an employee to work beyond their ordinary hours gives rise to an obligation to remunerate that employee in accordance with cl 29.1(a) of the Award, provided that the additional hours are worked.
Were the Additional Hours Claimed by the Claimant Authorised by Kardan?
82 In considering the correct approach in assessing whether implied authorisation was given by the employer (under the terms of the relevant award), Bromberg J in Peninsular Health discussed a number of matters relevant to that assessment. In summary:
(a) the content of any communication said to constitute the requirement or authorisation, and what that communication would reasonably convey to the recipient;
(b) an assessment of the content of any communication in light of the surrounding facts, circumstances, and the conduct of the parties viewed as a whole; and
(c) an assessment of any inconsistent or contrary messages, including any express communications.
83 The conduct and circumstances relied upon by the claimant to establish that Kardan impliedly authorised the additional work undertaken by him include:
(a) the terms of the Offer Letter;
(b) Kardan’s payment for additional hours worked during the first and second employment weeks set a precedent for the third and fourth employment weeks;
(c) Mr Soriano continuing to require work to be undertaken and continuing to ask questions about the estimates, including numerous questions raised on the day before the Tender was due;
(d) no one directed him to cease undertaking additional work after Kardan had paid him for additional hours worked during the first and second employment periods;
(e) commencing work on the Tender after it had been open for submissions for approximately one week, thereby leaving him with four weeks rather than five weeks to complete it; and
(f) the size and complexity of the Tender.
84 Kardan relies upon the following matters in support of its contention that it neither required nor authorised the additional work said to have been undertaken by the claimant during the third and fourth weeks of his employment:
(a) the terms of the Offer Letter;
(b) the additional hours paid to the claimant during the first and second weeks of his employment were accepted because Kardan considered those hours were reasonably attributable to onboarding requirements associated with the Tender;
(c) the payment of additional hours during the first and second weeks of employment did not mean that additional hours claimed in the future would necessarily be approved or paid;
(d) there was no requirement for the claimant to undertake additional work during the third and fourth weeks of his employment. Any additional work said to have been undertaken arose because the claimant did not comply with Kardan’s estimating procedures and was therefore required to undertake further work to address issues with his estimates;
(e) contrary to his assertions, the claimant was never instructed to be ‘on standby’; Exhibit 7 [30].
and
(f) the claimant’s email dated 29 April 2026, in which he stated that he would ‘slow down to 8 hrs only starting today’, was understood by Kardan to mean that he would work eight hours per day from that time onwards.
85 As already determined, the terms of the Offer Letter do not support the claimant’s contention that Kardan’s obligation to pay for additional hours worked was unrestricted. At most, the Offer Letter is consistent with cl 29.1(a) of the Award, which permits consideration of whether a requirement or authorisation to perform additional work may be implied.
86 Kardan did not have a formal process for authorising the payment of overtime. While Mr Bohan gave evidence that the requirement for prior approval for the payment for additional hours worked was discussed with an employee at the commencement of their employment, there was no evidence that any such discussion occurred with the claimant when he commenced employment. This is consistent with the claimant’s evidence that the need to obtain authorisation before working additional hours was never raised with him.
87 It is also difficult to reconcile Mr Bohan’s evidence regarding the retrospective justification of overtime claims with Kardan’s contention that prior approval was required before any overtime could be worked. The evidence instead suggests that Kardan’s practice was to assess overtime claims retrospectively and determine whether they should be paid based on whether the employee could satisfactorily justify the additional hours worked. That practice is inconsistent with a strictly enforced requirement for prior approval.
88 Further, this overlooks the requirement under regulation 3.34 of the Fair Work Regulations 2009 (Cth) as it relates to record keeping by employers for overtime hours worked by employees.
89 It was not until part way through the fourth employment period, on 29 April 2026, that Kardan first raised an issue with the claimant regarding his hours of work. This occurred only after the claimant had raised concerns about his payslip for the third week of employment (20 to 26 April 2026), which recorded payment for 40 hours of work rather than the 60 hours he had claimed on his submitted time sheet. Exhibit 1, Annexure C.

90 Kardan accepts that the claimant submitted a time sheet claiming payment for 60 hours of work for that period. However, Mr Soriano adjusted the hours to be paid from 60 hours to 40 hours. There is no evidence that Mr Soriano spoke with the claimant before making that adjustment. That conclusion is consistent with the contents of the claimant’s email to Ms Hannah Parslow, who was an administrative assistant with Kardan (Ms Parslow), dated 29 April 2026. Exhibit 1, Annexure C.

91 Ms Parslow subsequently copied Mr Soriano into the email correspondence.
92 Later, on 29 April 2026, Mr Soriano responded that any overtime was required to be approved before it was worked. He explained why Kardan had approved the overtime claimed during the first two weeks of the claimant’s employment and advised that the hours submitted by the claimant would be reviewed following an assessment of the Tender.
93 The claimant’s response was, consistent with his earlier evidence, that he was unaware that hours worked in excess of 40 hours per week required prior approval.
94 The claimant then requested that Kardan confirm whether it required more than 40 hours of work to be undertaken. It was in that context that he stated that, if he knew the number of hours Kardan required him to work, he would, in effect, limit his hours. However, he informed Kardan that the Tender involved ‘high demand hours’. He also advised that, during the first two days of the fourth week of his employment, he had already worked 12 hours per day and briefly explained why. It was in that context that the claimant then stated that he would ‘slow down to 8 hrs only starting today’. Exhibit 1, Annexure C.

95 There was no further response on this issue from Kardan, until the claimant made enquiries with the Fair Work Ombudsman on or around 6 May 2026.
96 However, on 30 April 2026 at 12.08 pm AWST, Mr Soriano engaged in further email correspondence with the claimant about the Tender asking to do a review of the price. As already stated, the claimant was located in New Zealand which is five hours ahead of Western Australia. Therefore, it was 5.08 pm in New Zealand. Exhibit 1, Annexure H.

97 In addition, Mr Soriano and Mr Bohan had a Teams meeting with the claimant for about 90 minutes. Mr Soriano’s issue with the Teams meeting appears to be related to the claimant giving unsatisfactory answers during the meeting. Exhibit 7 [27].

98 This was the day before the Tender was due to be submitted.
99 Prior to the submission of the Tender, Mr Soriano requested that the claimant amend certain prices. The claimant did not do so because he considered that he lacked the necessary authority to make those changes. Instead, the claimant responded that it was open to Mr Soriano to use the document provided and reduce the estimated prices if he chose to do so. Mr Soriano’s evidence appears to be that the claimant failed to complete the work he had been directed to undertake that day. However, it is not clear from the evidence whether any other work had been instructed or was required to be completed by the claimant on that occasion. Exhibit 7 [29].

100 There were a number of emails back and forth between the claimant and Kardan with the last being sent by the claimant on 1 May 2026 at 1.20 am New Zealand time. Exhibit 1, Annexure H.
In none of these emails, do Kardan suggest that the claimant should stop work or stop responding to the emails.
101 The real gravamen of Kardan’s issue with the claimant, as agreed by Mr Bohan, is that it was dissatisfied with the claimant’s work and, retrospectively, complains about the claimant failing to adhere to some of Kardan’s processes and procedures.
102 Notwithstanding this, the Tender was submitted on time, and it included the claimant’s work product.
103 Comments by Bromberg J in Peninsula Health, at [121] and [132], are, again, apposite to the circumstances of this case:
It is, I think, of particular importance in a case such as this to focus upon the work expectations set by the employer in considering whether or not a request or a direction that work be performed in a particular way or at a particular time was made by the employer. In most employment arrangements, it is simply not practicable for employees to be closely supervised and directed and, accordingly, what an employer will do is communicate the outcome it expects to employees rather than provide a series of specific directions as to how, when and in what order the tasks necessary to obtain that outcome are to be performed. In those circumstances, the requirements made of the employee will be mainly implicit rather than express and will often arise out of the expectations set by the employer. Further, expectations set by the employer will often not be set expressly but will themselves be implicit from the circumstances, including the nature of the employee’s duties and the way in which, or the pattern in which, work is ordinarily performed to the apparent satisfaction of the employer.
…
Where an employer has clearly and unequivocally communicated to its employees that it will hereafter only authorise the working of overtime through a particular process, and uniformly only authorises overtime work through that process, there will likely be little room to imply from other conduct and relevant circumstances that the employer has requested, required or otherwise approved the working of overtime which has not been authorised under that process. However, the greater the ambiguity of the process itself or the communication regarding the significance and application of the process, the greater the room for such an implication. Likewise, the further from uniformity the actual practice or application of the communicated intent of the employer to only authorise overtime through the process, the greater the room for an implication that, from other conduct and circumstances, the employer has requested, required or otherwise approved the working of overtime which has not been authorised under the process. That is because a process that is unclear, uncommunicated or rarely applied is unlikely to have much force in conveying the employer’s intent in any assessment made against countervailing conduct or circumstances which support an implied authorisation given by the employer otherwise than under the process. Such a policy is therefore unlikely to diminish or negate an authorisation implied from other conduct or circumstances.
104 In the claimant’s circumstances, he worked remotely and, during the first two weeks of his employment, appears to have had very little direct supervision from Mr Soriano. Mr Soriano’s evidence was that he also had very little contact with the claimant during the third week of the claimant’s employment, although there was some email correspondence between them. Exhibit 7 [17]  [21].
However, that evidence says little about what work the claimant was, or was not, undertaking during that period. Rather, it establishes only that there was limited contact between the claimant and Mr Soriano.
105 For the fourth week of the claimant’s employment, Mr Soriano said that there was no expectation that the claimant would work over the long weekend. In support of that proposition, Mr Soriano referred to an email he sent to the claimant on 24 April 2026 stating that he would review everything with the claimant on the following Tuesday morning (being 28 April 2026). Exhibit 7 [24].

106 However, this evidence says little about what work the claimant was, or was not, expected to undertake, whether over the long weekend or otherwise. The email does not direct the claimant to cease work, nor does it indicate that no further work was required to be undertaken before Tuesday. Rather, it establishes only that Mr Soriano intended to review the work with the claimant on the following Tuesday morning. It may also suggest that Mr Soriano did not intend to work during the long weekend, but it does not necessarily assist in determining what work the claimant was expected to or not expected to undertake during that period.
107 There was no written policy for the working of, or payment for, overtime. To the extent that any policy existed, it appears to have been oral, informal and ad hoc, with employees being required to justify additional hours after those hours had been worked.
108 To the extent that the claimant was informed that overtime required prior approval, this did not occur until midway through the fourth week of his employment, after he had already submitted a manual time sheet claiming the hours he says he worked during the third week of employment. Further, Kardan had already paid overtime hours claimed by the claimant through the same manual time sheet process used during the first and second weeks of his employment.
109 Kardan did not provide an unequivocal response to the claimant’s email regarding any process for obtaining approval to work overtime, stating only that overtime was required to be approved beforehand. However, by that stage, according to the claimant, he had already worked 24 hours during the fourth week of his employment, and the Tender was due for submission within approximately two days. Notwithstanding that position, Kardan continued to correspond with the claimant regarding issues arising from the Tender.
110 I find that Kardan did not impose any clear or effective limits on the claimant’s working hours during the third and fourth weeks of his employment. Kardan took little, if any, action to monitor the claimant’s hours of work. To the extent that Kardan now relies upon the claimant’s failure to use its time-recording system, that was a matter that remained substantially within Kardan’s control.
111 I further find that Kardan expected the claimant to continue working on the Tender so that it could be submitted by the required deadline and to respond to queries raised by Kardan as and when those queries arose. The fact that the Award prescribed ordinary hours of 38 hours per week did not alter Kardan’s expectation that the work required for the Tender be completed in at least 40 hours per week.
112 In those circumstances, I find that Kardan impliedly required, or alternatively impliedly authorised, the claimant to work additional hours in excess of the 40 hours per week referred to in the Offer Letter.
What, If Any, Additional Hours Are Kardan Liable to Pay?
113 Kardan does not accept the claimant worked the additional hours claimed in the third and fourth weeks of his employment.
114 There is no dispute that the claimant submitted manual time sheets at the end of each week recording, in total, the hours he says he worked.
115 The claimant did not keep a daily record of the hours he worked. Rather, the only record he maintained was the manual time sheet submitted at the end of each week. In its response to the claim, Kardan contends that those time sheets do not constitute reliable contemporaneous evidence of the hours actually worked during the third and fourth weeks of employment.
116 Accordingly, I infer from Kardan’s response that it contends the claimant has failed to discharge the onus of proving that he worked the hours said to give rise to an entitlement to overtime payments.
117 In summary, the claimant accepts that he is unable to provide a detailed account of the hours he worked during the third and fourth weeks of his employment. He says this is, in part, because the work product associated with those hours is now held by Kardan. However, the claimant also accepts that he kept no contemporaneous record of the hours he worked each day.
118 The claimant relies upon the time pressures associated with completing the Tender by the required deadline and the numerous queries raised by Kardan, particularly as the Tender approached completion.
119 A further consideration is that the Offer Letter contemplated the claimant working hours in excess of the statutory and Award maximum of 38 ordinary hours per week. Accordingly, and perhaps unwittingly, the claimant was already working hours beyond the statutory and Award maximum with Kardan’s knowledge and approval.
120 In relation to the third week of employment, I accept the claimant’s evidence that he worked 60 hours during that week notwithstanding the absence of records kept by either party. I do so for the following reasons:
(a) Kardan had no formal policy for recording and paying overtime hours worked;
(b) Kardan paid the claimant for additional hours worked during the first and second weeks of his employment without requiring any justification for those hours by the claimant;
(c) following the submission of the manual time sheets for the first and second weeks of employment, there was no discussion with the claimant suggesting that he was claiming unnecessary or unreasonable additional hours. The issue was only raised after the claimant queried the Third Payment, at which point the hours claimed had already been worked and submitted;
(d) the claimant commenced employment approximately one week after the Tender had opened for submissions, thereby reducing the time available to complete the Tender;
(e) no person at Kardan exercised any meaningful oversight of the claimant’s work or working hours. The claimant was largely left to work on the Tender and respond to queries as they arose;
(f) there is no reliable evidence that the claimant worked additional hours for the purpose of improperly increasing overtime payments, nor is there reliable evidence that the work required of him could reasonably have been completed within 38 ordinary hours per week; and
(g) Kardan expected the claimant to work at least some hours in excess of 38 ordinary hours per week and, at a minimum, contemplated that he would work hours beyond his standard working week.
121 In relation to the fourth week of employment, I accept the claimant’s evidence that he worked 40 hours during that week notwithstanding the absence of detailed records kept by either party. I reach that conclusion for substantially the same reasons as those applying to the third week of employment. In addition, on 29 April 2026, the claimant informed Kardan that he had already worked 24 hours during that week and Kardan did not clarify what work had been undertaken.
122 Further, immediately prior to the Tender being submitted, Kardan raised numerous queries concerning the Tender and expected the claimant to respond to those queries. That circumstance is consistent with the claimant continuing to undertake work on the Tender during the remaining part of the fourth week of his employment. The Tender was submitted on time using the claimant’s work product.
123 In relation to both the third and fourth weeks of employment, Kardan provided no explanation to the claimant as to why the hours claimed by him were reduced for payment purposes. Further, the evidence before the Court does not disclose any substantive basis for the reduction beyond Kardan’s dissatisfaction with the quality of the claimant’s work and its contention that he failed to comply with its policies and procedures. As the claimant submitted, if Kardan considered his performance to be unsatisfactory, it was open for it to terminate his employment, which it ultimately did.
Outcome
124 I am satisfied and I find that the claimant has proven on the balance of probabilities he worked:
(a) 60 hours in the third week of employment (20 to 26 April 2026); and
(b) 40 hours in the fourth week of employment (27 April to 3 May 2026).
125 I am also satisfied and I find that the claimant has proven on the balance of probabilities Kardan impliedly required or authorised any additional hours of work undertaken by the claimant in the third and fourth weeks of employment. I note that the hours of work claimed in the fourth week of employment are consistent with the weekly hours of work provided in the Offer Letter.
126 In making the Third and Fourth Payments, Kardan has failed to pay the claimant in full for work performed by him in the third and fourth weeks of employment.
127 For the third week of employment, the claimant claims:
(a) 10 hours at $117 per hour (or at a penalty rate of 1.5); and
(b) 10 hours at $156 per hour (or at a penalty rate of 2.0).
128 These rates are based on the rates applied by Kardan when paying the claimant for additional hours worked during the second week of his employment. I note that the Award prescribes a different method for calculating overtime payments for casual employees. However, these are the amounts claimed by the claimant and, in the circumstances, Kardan suffers no prejudice from those amounts being adopted.
129 For the fourth week of employment, the claimant claims 14 hours at $78 per hour (the rate referred to in the Offer Letter). For the same reasons, this is the amount claimed by the claimant and, in the circumstances, Kardan suffers no prejudice from this amount being adopted.
130 Accordingly, I am satisfied and I find that the following underpayments have been proven by the claimant on the balance of probabilities:
(a) for the third week of employment - $2,730; and
(b) for the fourth week of employment - $1,092.
131 I further find that in failing to pay these amounts to the claimant that it was required to pay in full for the performance of work, Kardan has contravened s 323 of the FWA, a civil remedy provision.
132 Therefore, pursuant to s 545(3) of the FWA, when read with s 548(1A)(a)(i) of the FWA, Kardan is required to pay to the claimant the amount of $3,822.
133 The claimant seeks an order that Kardan make the equivalent superannuation contribution to a superannuation fund for his benefit.
134 Section 116B of the FWA requires an employer to make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 (Cth). The payment of superannuation contributions is a NES pursuant to s 61(2)(ha) of the FWA. Pursuant to s 44 of the FWA, an employer must not contravene a provision of the NES. Section 44 of the FWA is a civil remedy provision.
135 Having found that Kardan failed to pay the claimant the full amount owing for the performance of work, namely $3,822, I am also satisfied that Kardan failed to make the corresponding superannuation contribution for the claimant’s benefit in respect of that amount. The relevant amount of superannuation is to be calculated in accordance with the applicable superannuation guarantee rate operating at the time the entitlement arose. Applying the applicable Superannuation Guarantee rate of 12%, the unpaid superannuation contribution is $458.64.
136 Therefore, pursuant to s 545(3) of the FWA, when read with s 548(1A)(a)(i) of the FWA, Kardan is required to pay to a superannuation fund for the benefit of the claimant the amount of $458.64.
137 The claimant also seeks an order for pre-judgment interest.
138 Section 547(2) of the FWA provides that the Court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
139 Pre-judgment interest in the Court 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). IMC Regulations reg 12(1)(b).

140 Regulation 4 of the Civil Judgments Enforcement Regulations 2005 (WA) prescribes an interest rate of 6% per annum.
141 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.
142 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.
143 I am satisfied that interest should be awarded on the judgment sum of $3,822 for the period 5 May 2026 to 2 October 2026 in the amount of $84.19.
Orders
(1) Subject to any liability to the Commissioner of Taxation under the Taxation Administration Act 1953 (Cth), and pursuant to s 545(3) and s 548(1A) of the FWA, Kardan is to pay to the claimant:
(a) the amount of $3,822; and
(b) pre-judgment interest fixed at $84.19.
(2) Kardan is to pay to a superannuation fund for the benefit of the claimant the amount of $458.64.



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 Court, 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 Court 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 Court 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 on account of performance of work; and
· Section 44 – contravening a provision of the NES.
[7] 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].
[8] 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 [the 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].
[9] Section 12 of the FWA defines ‘fair work instrument’ to, relevantly, mean at (a) a modern award.
[10] 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
[11] Where the Court 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).
[12] The civil penalty provisions identified in s 539 of the FWA includes the provisions set out in pt 2 - 9 of the FWA: FWA s44, s 323(1), s 539.
[13] Relevant to the small claim procedure, 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).
[14] 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 Court 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
[15] Relevant to the claim, 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.
[16] 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].
[17] 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
[18] Subject to the provisions of the FWA, the procedure of the Court 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.
[19] 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: Construction of Industrial Instruments
[20] The relevant principles to be applied when interpreting an industrial instrument are well known and are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595 [21] - [23] (amongst many other decision).
[21] In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement;
(1) The primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) It is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties’ subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) The objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) The apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
(6) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation; and
(7) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[22] The following is also relevant:
· Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813; (2006) 153 IR 426 at [53] - [57] (French J).
· Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53]  [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28]  [30] (Katzmann J).