2026 WAIRC 00935
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00935



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 10 SEPTEMBER 2026



DELIVERED
:
THURSDAY, 15 OCTOBER 2026



FILE NO.
:
M 43 OF 2026



BETWEEN
:
MR RAVI SHARMA


CLAIMANT





AND





NH PATEL PTY LTD


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) – Alleged failure to pay applicable penalty rates – Determination of applicable modern award – Determination of classification within the applicable modern award – Whether a composite hourly rate applied – Calculation of underpayment of penalty rates
Legislation : Fair Work Act 2009 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Restaurant Industry Award 2020 [MA000119]
Food Industry Award 2020 [MA000003]
Cases referred
to in reasons: : Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449
Fair Work Ombudsman v Woolworths Group Ltd [2025] FCA 1092; (2025) 343 IR 340
Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107
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 in part
Representation:
Claimant : Self-represented
Respondent : Mr N. Patel (Director)



REASONS FOR DECISION
Background
1 Ravi Sharma (the claimant) was employed as a cook or chef from 29 May 2024 to 1 June 2025 by NH Patel Pty Ltd (the respondent), which operates a food business inside the Karrinyup Shopping Centre in Perth, named Thali Contemporary Indian (Thali).
2 On 18 March 2026, the claimant lodged an originating claim applying the small claims procedure, alleging that after 2 December 2024 his hours of work increased from 32 hours per week to 38 hours per week, but that he continued to be paid for 32 hours per week and he was not paid overtime or weekend rates.
3 The claimant also alleges that he should have been paid rates that correspond with the Restaurant Industry Award 2020 [MA000119] (Restaurant Award).
4 The respondent denies the claimant worked 38 hours per week after 2 December 2024 and denies the Restaurant Award applies to the claimant’s employment. Instead, the respondent states that the Fast Food Industry Award 2020 [MA000003] (Fast Food Award) applies to the claimant’s employment.
The Claim
5 The claimant alleges that the respondent failed to pay him the following amounts:
(a) $3,315.87 for 104 hours of work performed over 32 hours per week from 2 December 2024 to 1 June 2025;
(b) $8,441.13 for 688 hours of unpaid weekend penalty rates; and
(c) $1,195.62 for 25 hours of unpaid public holiday penalty rate.
6 The claimant alleges that the total amount owed to him is $12,953.62.
7 The claimant alleges that the respondent failed to pay him:
(a) in full for all work performed over 32 hours per week, which I infer that the claimant alleges the respondent contravened s 323 of the Fair Work Act 2009 (Cth) (FWA);
(b) overtime rates in compliance with cl 23 of the Restaurant Award, which I infer that the claimant alleges the respondent contravened s 45 of the FWA; and
(c) penalty rates in compliance with cl 24 of the Restaurant Award, which I infer that the claimant alleges the respondent contravened s 45 of the FWA.
8 In failing to pay the alleged amounts, the claimant also says the respondent has failed to comply with cl 19.5 of the Restaurant Award by failing to pay the outstanding amounts within seven days of the termination of his employment.
The Response
9 The respondent admits that it employed the claimant but denies any underpayment. The respondent says that the claimant was paid a fixed hourly rate of $31.8834 per hour which was above the minimum rate he was entitled to be paid under the Fast Food Award.
10 The respondent denies that the claimant worked 38 hours per week at any time. The claimant’s ordinary hours were 32 hours per week and where he worked additional hours above this, he was paid for those hours in full.
Issues for Determination
11 The following issues require determination:
(a) Does the Restaurant Award or the Fast Food Award apply to the claimant’s employment?
(b) What was the claimant’s classification level under the applicable award?
(c) Did the claimant work 38 hours per week after 2 December 2024?
(d) If the claimant worked 38 hours per week after 2 December 2024, is there an underpayment and what is it?
(e) Is there an underpayment based on any underpayment of weekend and/or penalty rates?
12 Schedule I to these reasons outline the jurisdiction, practice and procedure of the Industrial Magistrates Court of Western Australia (the Court or the IMC).
Evidence Not in Dispute
13 Programming orders were made by the Court. While the claimant did not wholly comply with those orders, I understand that he received some assistance in preparing for the hearing. The Court nevertheless made allowance for any difficulties the claimant may have experienced and guided him through his evidence by reference to the originating claim.
14 The respondent relied upon a witness statement of Naman Patel (Mr Patel), director of the respondent, signed on 21 August 2026 with attachments referred to therein, Exhibit 5 – witness statement of Naman Patel signed on 21 August 2026.
a witness statement of Pooja Tanna (Ms Tanna), Mr Patel’s sister, signed on 21 August 2026 with one attachment, Exhibit 7 – witness statement of Pooja Tanna signed on 21 August 2026.
a witness statement of Finali Galaiya (Ms Galaiya), Mr Patel’s wife, signed on 21 August 2026, Exhibit 6 – witness statement of Finali Galaiya signed on 21 August 2026.
and a witness statement of Yashika (Yashika), an employee of the respondent, signed on 20 August 2026. Exhibit 8 – witness statement of Yashika signed on 20 August 2026.

15 There are a number of facts that are not in dispute, which include the following.
16 The claimant commenced work on 29 May 2024 at Thali which sells food in a food court inside Karrinyup Shopping Centre. When he started work, he worked 32 hours per week. His responsibilities included cooking Indian food to put in trays to display in a bain-marie for sale to customers in the food court. Exhibit 5 – Attachment 8 (photos).

17 He generally worked from 9.00 am to 2.00 pm on Monday, Wednesday, Thursday, Friday and Saturday. He generally worked from 10.00 am to 2.00 pm on Sunday (although it is in dispute whether he worked longer hours on Sundays from a certain point in time). His day off was Tuesday.
18 There was no written employment contract or agreement between the claimant and the respondent. The claimant was introduced to Mr Patel, and the employment terms were agreed orally.
19 The claimant generally cooked the same dishes each day although there were some variations. The claimant did not hire any staff for the respondent. When the claimant left for the day, other staff members would stay behind and continue working.
20 The food purchased by customers was take away or people could sit in the food court although the respondent had three tables and a bench accommodating around six people in a designated area.
21 The agreed hourly rate of pay was $31.8834 per hour.
22 On 2 December 2024, the claimant received a text message from Mr Patel stating:
Hello Chef,
Please see as requested:
Thursday: 9am to 5pm = +3 hrs
Friday: 9am to 3pm = +1 hr
Sat: 9am to 4pm = +2 hrs
Total extra 6 hours per week.
Sun like before normal = 10am to 5pm
Monday and Wednesday 9am to 2pm
Thank you Exhibit 2 – text message dated 2 December 2024 from Mr Patel to the claimant.

23 The claimant’s pay slips generally show the claimant was paid $1,742.54 to $1,762.42 (net) per fortnight save for the periods:
(a) December 2024 to 5 January 2025, he was paid $1,915.61 (for 72 hours);
(b) 28 April 2025 to 11 May 2025, he was paid $1,957.37 (for 74 hours);
(c) 12 May 2025 to 25 May 2025, he was paid $1,979.26 (for 75 hours); and
(d) 26 May 2025 to 8 June 2025, he was paid $3,904.88 (for 38 hours and annual leave of 126 hours). Exhibit 5, attachment 2 (annexure B: pay slips over 27 fortnights)

24 There was no roster or time sheet completed for hours worked and the claimant did not keep his own records of hours worked, save that on 22 May 2025 the claimant sent an email and a text message to Mr Patel of a photograph of an ‘extra’ 27 hours he says he worked between 24 April 2025 and 15 May 2025. Exhibit 5, attachments 4.1 and 4.2.

25 The claimant’s employment was terminated on or around 18 May 2025 with his final day of employment being 1 June 2025. Exhibit 5, attachment 6.4.

Evidence in Dispute
26 The claimant says he was employed as a chef and relies upon his experience in the restaurant industry to support his claim that his appropriate level under the Restaurant Award is Level 4, grade 3.
27 The claimant states that after the text message sent on 2 December 2024, his hours of work increased from 32 to 38 hours per week because Mr Patel needed him to work when the business was busy. After he received the text message from Mr Patel, he replied ‘yes’ by text message and then asked how much he was to be paid. Exhibit 5, attachment 3; ts 10.

28 Mr Patel telephoned him and told him that this would be discussed at the restaurant. There was a discussion and Mr Patel told him that he would sort out to pay him for the extra six hours. The claimant said he continued to work six hours extra every week after that and he did not get paid for working this extra time.
29 Further, the claimant said there were three weeks where he did not get paid when he was on annual leave from 22 February 2025 to 16 March 2025. When he asked Mr Patel why he did not get ‘holiday pay’ during this time, the claimant said Mr Patel became angry and said that he does not pay holiday pay to anyone. ts 29.

30 The claimant said Mr Patel went to Kenya and told the claimant that he would ‘sort it out’ when he came back. However, when Mr Patel came back, he terminated the claimant’s employment. ts 12.

31 The claimant said that he was paid fortnightly but that he never got pay slips and Mr Patel gave him pay slips after the claimant’s accountant spoke to him. Mr Patel provided him with pay slips when he asked for it.
32 While Mr Patel was in Kenya, the claimant says that he was paid differing amounts (as referred to above) and he was paid about $560 for 27 hours work although he does not know how Mr Patel worked this out. The claimant says he worked an extra 27 hours during the time Mr Patel was in Kenya.
33 The claimant said he worked 10.00 am to 5.00 pm every Sunday except the day his employment was terminated when he finished at about 4.30 pm.
34 The claimant said he never took a 30-minute lunch break and that all staff, including him, took around a 10minute break only. ts 32, 46.

35 The claimant referred to an example text message dated 2 April 2025 where Mr Patel asked him to work until 8.00 pm the following day, although he did not have to work until 8.00 pm because Mr Patel came back to work. Exhibit 3 – text message from Mr Patel dated 2 April 2025.

36 In an attachment to his originating claim, the claimant detailed the extra hours of work he says he worked on each day, which he prepared with the assistance of an accountant. This included the extra hours, the overtime rates and the penalty rates. Exhibit 1 – the claimant’s originating claim with attached tables.

37 In cross-examination, the claimant said that it was very busy in December 2024. The business was always busy, but it was busier than normal at this time due to the Christmas period.
38 The claimant denied that he asked for extra hours and says Mr Patel sent the text message to him on 2 December 2024, and that the text was not just in reference to the busy time of year.
39 The claimant said he had his response to Mr Patel’s text message (which he thought was ‘yes’ but he accepted was a request for wages details). See Exhibit 5, attachment 3; ts 27  28.

40 The claimant denied there was a verbal discussion where Mr Patel told him that the extra six hours was for a short time in December 2024. The claimant said that Mr Patel told him he would be paid for the extra six hours in one go, monthly. ts 29.

41 The claimant denied he was paid for the extra six hours worked.
42 The claimant maintained Mr Patel got angry about paying holiday pay and maintained Mr Patel said that he never paid anyone holiday pay.
43 The claimant said that he did not know how to access the mobile application used for pay slips and he agreed he was sent pay slips when he requested for Mr Patel to send them to him.
44 The claimant said he travelled overseas from 27 February 2025 to 14 March 2025, and he accepted that dates relevant to claimed amounts for those dates in the attachment to his originating claim may be incorrect as a result.
45 The claimant said that other staff at the business made naan bread only and he denied Mr Patel did any cooking and said Mr Patel only made naan bread. He agreed he did not fix any staff hours but he said he did supervise at least one person.
46 The claimant said that he could not ‘prove’ with any handwritten documents the hours he says he worked.
47 The claimant said it was never explained to him how the amounts of $1,957.37 and $1,979.26 were calculated but he maintained that he was never paid for the extra six hours of work he says he worked after 2 December 2024. ts 33  34; Exhibit 5, attachment 2.

48 The claimant denied that an ‘all purpose’ hourly rate to cover all the days worked was discussed with him. ts 37.

49 The claimant accepted that the Fair Work Ombudsman document relied upon by him to demonstrate relevant hourly rates was in reference to the Hospitality Industry (General) Award. Exhibit 4 – Except of the Hospitality Industry (General) Award (MA000009) prepared by the claimant using the Fair Work Ombudsman’s Pay and Conditions Tool; ts 31.

50 Mr Patel stated that he is responsible for the day-to-day operation of Thali. Thali is a single food court outlet inside Karrinyup Shopping Centre, where food is prepared and served from a counter bain-marie. Customers order and pay at the counter before the food is provided and either take away the food or eat it at communal seating located in the food court. Exhibit 5 at [3].

51 According to Mr Patel, he and the claimant agreed for the claimant to be paid a flat rate of $31.8834 per hour for all hours the claimant worked and he explained how this rate was calculated. Mr Patel said this rate was more than what the Fast Food Award required to be paid. Exhibit 5 [5]  [6].

52 Mr Patel said that across the whole of the claimant’s employment the total amount the claimant was paid was more than the total minimum required to be paid for those same hours under the terms of the Fast Food Award. On the basis of Mr Patel’s reconciliation of the amounts paid to the claimant, he says the claimant was paid $6,080 more than the award minimum for the same hours. Exhibit 5 [7], attachment 1.

53 Mr Patel explained how the claimant’s hours were recorded by him in a handwritten diary and then entered onto the respondent’s Xero payroll system where pay slips were automatically generated following a pay run and reported to the Australian Taxation Office. Exhibit 5 [8]  [9].

54 Mr Patel stated that the claimant’s hours varied from fortnight to fortnight according to the hours he worked. Exhibit 5 [10].

55 Mr Patel also stated that at the commencement of the claimant’s employment, he set the claimant up on the Xero self-service application but the claimant was not comfortable using this application. Consequently, when the claimant asked for pay slips to be sent to him by email, Mr Patel did so. Exhibit 5 [11], attachment 5.

56 Mr Patel denied the claimant ever worked 38 hours per week. The claimant was employed to work 32 hours per week, consistent with the respondent’s pattern of business. Most days the claimant finished work at 2.00 pm with other staff remaining to work after the claimant had left. If the claimant worked additional hours, he was paid for those hours as recorded in the claimant’s pay slips. Exhibit 5 [12]  [14], attachment 2.

57 In respect of the text message dated 2 December 2024, Mr Patel says that this text message was sent at the claimant’s request because the claimant asked for the additional shifts that he might need to work over the Christmas and New Year period to be made in writing. The message was a proposal of shifts that might be worked over a busy period. Mr Patel denied that the 2 December 2024 text message was an agreement for an ongoing arrangement for the claimant to work additional hours. Exhibit 5 [16]  [18].

58 Mr Patel said he reviewed third-party merchant EFTPOS sales records for Thali for the period November 2024 to May 2025, stating that following the December peak period there was a reduction in trade thereafter. As a result, he said there was no need to increase the claimant’s hours following the December period. Exhibit 5 [19]  [20], attachment 7.

59 Mr Patel maintained the claimant was paid for the hours he worked. He referred to the text message and email sent by the claimant regarding the extra hours he worked, which he said were paid in the fortnights ending 11 and 25 May 2025. Exhibit 5 [22], attachments 2 and 4.

60 Mr Patel said the claimant raised a number of payment issues during his employment period, which were addressed by Mr Patel. However, Mr Patel said that at no time during his employment did the claimant raise any issue with respect to being owed payment for working an extra six hours per week. This issue was only raised after the claimant’s employment ended. Exhibit 5 [23]  [24], attachment 6.

61 Mr Patel admitted that he did not pay the claimant his annual leave at the time the claimant took annual leave from 21 February 2025 to 15 March 2025, which he said the claimant accepted. Mr Patel said the claimant’s accrued annual leave of 126 hours was paid out at the end of the claimant’s employment. Exhibit 5 [25]  [26], attachment 2.

62 Mr Patel said the claimant did not assume responsibility for running Thali, including that he did not employ, supervise, roster or train staff. The menu was small and fixed with some variations on busy days or periods. Exhibit 5 at [27] to [28].

63 Mr Patel stated that when he went to Kenya his sister, Ms Tanna, assisted in running Thali and he continued to operate the business remotely. Exhibit 5 at [30].

64 In cross-examination, Mr Patel agreed there were five items on the menu that were made to order. He also admitted there was no system to accurately record a 30minute lunch break and said the system was one of trust. He further admitted that he did not check to see if employees took a 30minute lunch break.
65 Mr Patel denied being told that the claimant was working six hours extra per week, and that the first time he heard this was on the telephone with the Fair Work Ombudsman. ts 48.

66 Mr Patel agreed there was a CCTV camera recording Thali but he said the hard drive overwrites the recording every three weeks. He said he checked the camera in August 2026 but any footage relevant to the claim had already been overwritten. ts 48.

67 Mr Patel agreed he sent the text message dated 2 December 2024.
68 Ms Galaiya stated she worked front of house at Thali from November 2024 to July 2026. Exhibit 6 [2].

69 Ms Galaiya stated that each morning dishes are placed in the bain-marie at the front counter. The dishes are generally the same with some variety. The dishes were cooked once a day in quantities sufficient for the day, other than on Thursdays when the working day is longer. From time to time, dishes may need to be ‘topped up’ if the dish finished before midday. Exhibit 6 [3].

70 Ms Galaiya said she was regularly in attendance at Thali on Saturdays and Sundays, and the claimant usually left at 2.00 pm on Saturdays and 5.00 pm on Sundays until from January 2025 when he left at 2.00 pm, which was after the peak lunch rush. Exhibit 6 [5]  [7].

71 In cross-examination, Ms Galaiya said the claimant was cooking and was not in charge of any staff. She admitted that she rarely went into the kitchen. ts 54.

72 Ms Tanna’s evidence was limited. In summary, when Mr Patel was in Kenya between 23 April and 16 May 2025, she attended Thali every two to three days for about 15 minutes to check on the business and assist where necessary. Exhibit 7 [2]  [3].

73 Ms Tanna said she eats at Thali and the menu is small and stays the same throughout the year. Exhibit 7 [7].

74 Yashika works at Thali on mainly Thursdays, Saturdays and Sundays making naan bread, doing some cooking and helps with cleaning and washing up. Exhibit 8 [3].

75 Yashika stated that she was trained by Mr Patel and if there were any problems, she discussed these issues with Mr Patel. Exhibit 8 [3].

76 Yashika stated that she worked with the claimant during the last five months of his employment at Thali, and he normally left at 2.00 pm on weekends unless it was busy. On Thursdays, the claimant worked later and finished at about 5.00 pm. Yashika said that she left work after the claimant on weekends. Exhibit 8 [4]  [5].

77 Yashika said Thali had a small menu and did not change much. Exhibit 8 [6].

78 In cross-examination, Yashika agreed the claimant worked additional hours when Mr Patel was in Kenya, including on some days working until 3.00 pm. She disagreed the claimant worked until 5.00 pm on Sundays or that they left together on Sundays. She agreed she mostly made naan bread. ts 59  61.

Assessment of the Evidence
79 The claimant gave his evidence to the best of his ability. It was apparent that English was his second language and that he experienced some difficulty explaining aspects of his evidence. While parts of his evidence were inconsistent with documents upon which he relied in support of his claim, he readily conceded those inconsistencies when they were put to him.
80 Although the claimant’s evidence was at times vague in detail, I formed the impression that this arose from his tendency to view matters in simple and practical terms, rather than from any attempt to be evasive or misleading.
81 Mr Patel was a more sophisticated witness than the claimant. However, there were also occasions where his oral evidence was inconsistent with documents relied upon by the respondent.
82 The evidence of Ms Tanna, Ms Galaiya and Yashika was more peripheral to the central issues in dispute between Mr Patel and the claimant. Nevertheless, each gave evidence in a straightforward manner and made appropriate concessions where matters were put to them in cross-examination.
83 In making findings of fact on the evidence in dispute, I have considered all of the evidence before the Court. However, I have referred only to the evidence necessary to explain the findings reached and the conclusions drawn.
Findings of Disputed Evidence
84 I accept the claimant’s evidence that the agreed hourly rate of $31.8834 was not intended to operate as an all-purpose or composite rate for the following reasons.
85 The respondent could not exclude or vary the operation of the Fast Food Award except in accordance with the individual flexibility arrangement provisions contained in cl 5 of the award.
86 It was open to the parties to agree that the claimant would be paid an hourly rate for ordinary hours of work that exceeded the minimum rate prescribed by the Fast Food Award.
87 However, any proposed agreement that the hourly rate would also compensate the claimant for award entitlements, including penalty rates, could only be effective if it complied with cl 5 of the Fast Food Award. Such an agreement could only be entered into after the claimant commenced employment, Clause 5.3 of the Fast Food Award.
had to be recorded in writing, Clause 5.4 of the Fast Food Award.
had to result in the claimant being better off overall than under the award, Clause 5.5 of the Fast Food Award.
and had to comply with the requirements of cl 5.6 and cl 5.7 of the Fast Food Award.
88 Any purported agreement that the claimant would be paid a composite hourly rate failed to comply with those requirements. There was no written agreement and no evidence that the respondent undertook any assessment of whether the claimant would be better off overall.
89 Further, even if the claimant had agreed to a composite hourly rate which at the commencement of employment compensated him for applicable award entitlements, that arrangement would not have continued to leave him better off overall following the increase in award rates on 1 July 2024. Within approximately one month of the commencement of employment, the agreed hourly rate no longer exceeded the claimant’s total award entitlements.
90 The respondent led no evidence that in any way demonstrated it complied with cl 5 of the Fast Food Award. Further, Mr Patel was prepared to overlook statutory requirements associated with the payment of annual leave entitlements, and it is highly unlikely that the claimant forewent the payment of annual leave for the respondent’s convenience.
91 I am unable to conclusively determine the intended meaning of the reference to additional hours contained in the text message dated 2 December 2024. In particular, it is unclear whether Mr Patel was proposing a permanent increase in the claimant's weekly hours, recording a temporary alteration to the roster, or merely identifying additional hours available for work in a particular week.
92 I do not consider the text message dated 2 December 2024 to be sufficiently clear to establish an agreed variation to the claimant’s contracted 32 hours of work per week. The text message is ambiguous as to whether the additional six hours were intended to apply on an ongoing basis or only for a limited period.
93 The claimant’s and Mr Patel’s evidence does not resolve this ambiguity, where their evidence was different about the text message’s intent or purpose. Their respective evidence was both, in part, consistent and inconsistent with the content of the text message.
94 While the schedule attached to the claimant’s originating claim Claimant’s schedule titled ‘Extra Overtime Hours’.
records additional hours worked on Thursdays and Fridays, broadly consistent with Mr Patel’s text message, it makes no allowance for the two additional hours on Saturdays referred to in that text message.
95 It is likely, having regard to the whole of the evidence, including the evidence by Yashika and Ms Galaiya, that the claimant worked:
(a) until 5.00 pm on Thursdays;
(b) until 2.00 pm on Saturdays; and
(c) for a time until 5.00 pm on Sundays but then until 2.00 pm.
96 I find the claimant cooked dishes on a fixed menu with some variations. There were also limited made-to-order dishes. The dishes were displayed in a bain-marie for counter service. It may have been necessary to cook additional dishes.
What Were the Terms of the Employment Contract?
97 I find that the oral contract of employment between the claimant and the respondent included the following terms:
(a) upon commencement of employment, the claimant was required to work 32 hours per week;
(b) the claimant was required to work each day of the week other than Tuesday;
(c) the claimant would be remunerated at the rate of $31.8834 per hour; and
(d) the claimant would perform cooking duties as required by the respondent.
98 To the extent that the oral contract of employment was varied from time to time in respect of the claimant's hours of work, I am unable to make any more precise finding than that the claimant's hours were increased on an ad hoc basis.
What Award Applied to the Claimant’s Employment?
99 A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person. Equally, a modern award does not give a person an entitlement unless the award applies to the person. Section 46(1) and s 46(2) of the FWA.

100 A modern award applies to (relevantly) an employee and employer if:
(a) the modern award covers the employee and employer;
(b) the modern award is in operation; and
(c) no other provision of the FWA provides that the modern award does not apply to the employee and employer. Section 47(1) of the FWA.

101 A modern award covers (relevantly) an employee and employer if the award is expressed to cover the employee and employer. Section 48(1) of the FWA.

Restaurant Award
102 Clause 4.1(a) and cl 4.1(b) of the Restaurant Award provide that the award covers employers in the restaurant industry throughout Australia and employees with a classification defined in Schedule A of the employers mentioned in cl 4.1(a).
103 Clause 4.2 of the Restaurant Award defines restaurant industry to mean:
[R]estaurants, reception centres, night clubs, cafés or roadhouses and includes catering by a restaurant business and a tea room operated in, or in connection with, a restaurant business but does not include a restaurant operated in, or in connection with, premises owned or operated by an employer covered by any of the following awards:
(a) Hospitality Industry (General) Award 2020; or
(b) Registered and Licensed Clubs Award 2020; or
(c) Fast Food Industry Award 2010.
104 Clause 4.4 of the Restaurant Award also provides that this award does not cover of the following, relevantly:
(d) Employers in the following industries or activities or their employees:
…
(iii) fast food industry.
105 Clause 4.5 of the Restaurant Award states that if an employer is covered by more than one award, an employee of that employer is covered by the award containing the classification that is most appropriate to the work performed by the employee and industry in which they work.
106 Schedule A of the Restaurant Award contains the classifications for employees covered by this award. The claimant referenced his level to an award that does not apply to the restaurant industry, namely the Hospitality Industry (General) Award 2020.
107 However, if I was to use the classification level suggested by the claimant, being Level 4 cook (tradesperson) grade 3, and extrapolate that to an equivalent classification in the Restaurant Award, the claimant would not meet the requirements of the equivalent classification.
108 Schedule A.3 of the Restaurant Award contains the classifications for an employee in the Kitchen stream. Classifications A.3.6, A.3.7 and A.3.8 are the levels for Cook grade 3 (tradesperson), Cook grade 4 (tradesperson) and Cook grade 5 (tradesperson), respectively. The requirement for each of these classifications is that the employee has completed an apprenticeship or passed the appropriate trade test or who has the appropriate level of training.
109 The claimant’s evidence is that he has experience in the restaurant industry over a period of time, but he has no ‘documents’. That is, I infer from the claimant’s evidence that he did not complete an apprenticeship or has not passed the appropriate trade test, and I cannot establish from his evidence that he has the appropriate level of training. ts 17.

110 Accordingly, at best on the evidence, the claimant may meet the classifications of A.3.4 or A.3.5, being a Cook grade 1 or a Cook grade 2, respectively. These classifications are applicable to employees who are engaged in cooking breakfasts and snacks, baking, pastry cooking or butchering or those who have the appropriate level of training and engages in these same functions.
Fast Food Award
111 Clause 4.1(a) and cl 4.1(b) of the Fast Food Award provides that the award covers, to the exclusion of any other modern award:
(a) employers in the fast food industry throughout Australia; and
(b) employees (within a classification defined in clause 12.4) of employers mentioned in clause 4.1(a).
112 Clause 4.2 of the Fast Food Award defines fast food industry to mean:
[T]he industry of taking orders for, preparing and selling (by direct provision to the customer and/or by delivery to the customer’s address):
(a) meals, snacks and/or beverages, which are sold to the public primarily to be consumed away from the point of sale;
(b) take away foods and beverages packaged, sold or served in such a manner as to allow their being taken from the point of sale to be consumed elsewhere should the customer so decide; and/or
(c) food and/or beverages in food courts and/or in shopping centres and/or in retail complexes, excluding coffee shops, cafes, bars and restaurants providing primarily a sit-down service inside the catering establishment.
113 Clause 4.5 of the Fast Food Award states that if an employer is covered by more than one award, an employee of that employer is covered by the award containing the classification that is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
114 Clause 12 of the Fast Food Award contains the classifications for employees covered by the award.
115 An employee must classify an employee covered by the Fast Food Award in accordance with cl 12.4, and the classification must be based on the skill level that the employer requires the employee to exercise in order to carry out the principal functions of the employment. Clause 12.1 and cl 12.2 pf the Fast Food Award.

116 Clause 12.4 of the Fast Food Award provides the following classification definitions:
(a) Fast Food Employee Level 1
(i) An employee engaged in the preparation, the receipt of orders, cooking, sale, serving or delivery of meals, snacks and/or beverages which are sold to the public primarily to take away or in food courts in shopping centres.
(ii) A Fast Food Employee Level 1 will undertake duties as directed within the limits of their competence, skills and training, including incidental cleaning and cleaning of toilets.
(b) Fast Food Employee Level 2
An employee who has the major responsibility on a day-to-day basis for supervising Fast Food employees Level 1 and/or training new employees or an employee required to exercise trade skills.
(c) Fast Food Employee Level 3
An employee appointed by the employer to be in charge of a shop, food outlet or delivery outlet.
117 The starting point to determining award coverage are the words of the award itself. More specifically, it is ‘the objective meaning of the words used [in the relevant award] bearing in mind the context in which they appear and the purpose they are intended to serve.’ Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 [22].

118 For the following reasons, I find that the Fast Food Award covered the respondent.
119 There is no dispute that Thali was located in the food court at Karrinyup Shopping Centre. As the respondent’s photographs demonstrate, food was sold from a counter primarily for takeaway consumption, notwithstanding that customers could consume their purchases in the communal seating area of the food court. To the extent that any sit-down option was available associated with Thali, it was limited and consisted of communal seating located adjacent to, rather than within, the respondent’s premises. In those circumstances, it cannot properly be said that Thali offered a sit-down dining service. Exhibit 5, attachment 8.

120 Thali is the epitome of the type of business contemplated by the definition of the fast food industry in cl 4.2 of the Fast Food Award.
121 Accordingly, I find the respondent operated Thali in the fast food industry.
122 While the work performed by the claimant may meet the classification of Cook grade 1 or Cook grade 2 under the Restaurant Award, the classification that is most appropriate to his work and to the environment in which he normally performs the work is that contained in Fast Food Employee Level 1 or Level 2 classifications.
123 The claimant cooked a set menu with some variations. The food he cooked was transferred to a bain-marie for sale to customers in a shopping centre to primarily take away to eat.
124 Further, cl 4.4 of the Restaurant Award expressly excludes employers and their employees covered by the Fast Food Award or employers in the fast food industry.
125 Therefore, I find the Fast Food Award applies to the claimant and to the respondent.
What Was the Claimant’s Classification Level?
126 The claimant cooked and prepared food from a set menu with some variations. The menu was determined by the respondent, although the claimant may have had some input into some dishes.
127 Save for the period during which Mr Patel was in Kenya, it is difficult to find that the claimant had the ‘major responsibility’ for the day-to-day supervision or training of new employees. Nor do I accept that he was appointed by the respondent to be in charge of Thali, given that he performed none of the duties ordinarily associated with such a role, such as hiring employees, rostering staff, or determining their duties.
128 The evidence is more consistent with the claimant’s primary function being the preparation of food for display in the bain-marie and sale from the counter, which is consistent with a Fast Food Level 1 classification. The possible exception is the period during which Mr Patel was in Kenya, when the claimant may have assumed some additional responsibility. However, any such responsibility appears to have been shared with Mr Patel’s sister.
129 While I have considerable doubt that Mr Patel’s sister assumed any significant managerial responsibility, she was available from time to time to assist with the operation of the business.
130 Having regard to all of the evidence, I find the claimant’s classification under the Fast Food Award was Fast Food Employee Level 1.
Did the Claimant Work 38 Hours Per Week after 2 December 2024?
131 The claimant’s claim, in part, is predicated on him working consistently 38 hours per week after 2 December 2024. However, apart from his oral evidence, there is no or limited other evidence to support that contention.
132 For example, unlike the period during which Mr Patel was in Kenya, the claimant did not record any further ‘extra’ hours worked. Nor did he do so when it must have become apparent to him that he was not being paid for any additional time allegedly worked. Further, there is no evidence identifying when those additional hours were worked, whether by way of an extra hour on a Sunday, finishing at a later time during the week, or otherwise.
133 This is not to suggest that the claimant was responsible for recording his hours of work, which was the respondent’s obligation. However, the absence of any contemporaneous record or other corroborative evidence supporting the claimant's oral evidence reduces the weight that can be attached to his assertion that he consistently worked 38 hours per week after 2 December 2024. I note that the claimant referred to a recording he purportedly made of attending work while Mr Patel was in Kenya. The recording had not previously been disclosed in accordance with the Court’s orders and, for that reason, the Court refused its admission into evidence. In any event, the relevance of the recording is questionable, where it was said to record attendance at work on a particular occasion. It could do little to establish the claimant’s hours of work more generally. Further, it relates to a period during which Mr Patel was in Kenya, being a period for which the respondent accepted and paid the claimant for additional hours worked.

134 The claimant, with the assistance of an accountant, prepared a schedule of additional hours allegedly worked. However, as the claimant acknowledged, the schedule contains inaccuracies. For example, it records additional hours as having been worked during the period from 27 February 2025 to 14 March 2025, when the claimant was travelling and on annual leave. ts 30.

135 Further, the schedule attached to the claimant’s originating claim titled ‘Extra Overtime Hours’ (claimant’s schedule) suggests that the claimant typically worked an additional three hours on a Thursday and one additional hour on a Friday. Exhibit 1, attachment titled ‘Ravi Sharma Extra Overtime Hours’.
That pattern does not accord with the claimant’s case that he consistently worked an additional six hours per week. ts 13  14.
Nor does it wholly accord with the claimant’s handwritten note to Mr Patel claiming payment for 27 additional hours worked while Mr Patel was in Kenya. Exhibit 5, attachment 4.2; ts 19  20.

136 More fundamentally, there is no evidentiary foundation explaining how the additional hours recorded in the claimant’s schedule were calculated. In those circumstances, the reliability of the claimant’s schedule is diminished, and little weight can be attached to it as evidence of the claimant's actual hours of work or the alleged extra hours claimed.
137 Mr Patel said he kept a handwritten diary of hours worked by the claimant. Exhibit 5, attachment 12.
The claimant challenges the authenticity of the handwritten diary.
138 According to Mr Patel, he prepared the handwritten diary fortnightly. ts 42.

139 Mr Patel’s handwritten diary generally accords with the claimant’s pay slips.
140 That said, there are anomalies.
141 Mr Patel’s handwritten notes record the claimant taking 30-minute lunch breaks when he worked six or more hours per day. The claimant states he never had a 30-minute lunch break and at most he and other staff took 10 minutes for a lunch break. ts 46.

142 Mr Patel admitted that there was no system in place to accurately record whether a 30-minute lunch break was taken, and he did not check whether the claimant took a 30-minute lunch break. ts 46.

143 I accept the claimant’s evidence that he did not take a 30-minute meal break on days when he worked six or more hours. The respondent had no system for recording whether the claimant took a meal break or, if so, the duration of any such break. Further, the proposition that the claimant took a 30-minute meal break is inconsistent with the respondent’s evidence that the claimant ordinarily finished work at about 2.00 pm, after the peak lunch period. Exhibit 6 [7].
It is also inconsistent with the nature of the business operated at Thali. In a food outlet located in a shopping centre food court, it is highly unlikely that the employee primarily responsible for preparing food would take a lengthy meal break coinciding with the peak lunch trading period.
144 The question is whether the Court should reject Mr Patel’s handwritten diary in its entirety. While I have reservations as to when the diary was completed, and I do not accept that it accurately records any meal breaks purportedly taken by the claimant, I am not persuaded that it should be wholly rejected. I have reviewed the diary entries, including those relating to the additional 27 hours worked claimed by the claimant. In that respect, the entries in the handwritten diary are consistent with the pay slips and record the additional 27 hours claimed by the claimant.
145 Having regard to the whole of the evidence, including the finding as it relates to the text message sent by Mr Patel on 2 December 2024, I am not satisfied, nor can I find, to the requisite standard that the claimant consistently worked 38 hours per week from 2 December 2024 until the cessation of his employment on or around 1 June 2025.
146 That is, I cannot find that the claimant consistently worked six ‘extra hours’ per week from 2 December 2024.
147 Therefore, I cannot be satisfied, nor can I find, to the requisite standard that the respondent failed to pay the claimant for the alleged six ‘extra’ hours per week he says he worked from 2 December 2024.
148 The claimant’s claim as it relates to an alleged underpayment of 104 ‘extra’ hours worked is unsuccessful.
Is There an Underpayment Based on Any Underpayment of Weekend and/or Penalty Rates?
149 The other part of the claimant’s claim relates to the alleged underpayment of weekend and penalty rates.
150 The claimant’s schedule calculates the alleged underpayment of weekend and penalty rates by reference to his ordinary hourly rate of $31.8834, rather than by reference to either the Restaurant Award or the Fast Food Award. Although the originating claim refers to an underpayment under the Restaurant Award, the nature and basis of the claim were sufficiently articulated to enable the respondent to understand the case it was required to meet.
151 Specifically, the claim concerns an alleged underpayment of weekend and penalty rates. While the claimant advanced that claim on the basis that the Restaurant Award applied, the Court has determined, consistent with the respondent’s contention, that the applicable modern award is the Fast Food Award. Notwithstanding that determination, the substance of the claimant’s claim remains one for the underpayment of weekend and penalty rates.
152 Clause 21 of the Fast Food Award provides that an employer must pay penalty rates referred to in Table 6 to an employee who work ordinary hours as follows (relevant to the claimant):
Table 6—Penalty rates
For ordinary hours worked:
Full-time and part-time employees
Casual employees

% of minimum hourly rate
% of minimum hourly rate

…

Saturday—any time of day
125
150
Sunday (Level 1 employees)—any time of day
125
150

…

Public holiday—any time of day
225
250
153 Clause 27.3(a) of the Fast Food Award provides that an employer must pay an employee who works on a public holiday at the public holiday penalty rate set out in cl 20 and cl 21 of the Fast Food Award.
154 It is not in dispute that the respondent paid the claimant an hourly rate of $31.8834 for all hours worked, irrespective of the day on which those hours were worked.
155 However, it was not open to the respondent to pay the claimant that rate as a composite rate for all hours worked, including hours worked on Saturdays, Sundays and public holidays. The Fast Food Award required the respondent to pay the claimant in accordance with the penalty rates in Table 6 of cl 21.
156 In particular, when the claimant worked on a Saturday or Sunday, he was entitled to be paid 125% of the minimum hourly rate prescribed by the Fast Food Award. Where the claimant worked on a public holiday, he was entitled to be paid 225% of the minimum hourly rate prescribed by the Fast Food Award. I note that the claimant's calculations are based on the ordinary hourly rate actually paid by the respondent. However, that is not the method prescribed by the Fast Food Award. The relevant calculation is to be undertaken by reference to the applicable minimum hourly rate.
157 The minimum hourly rate for a Level 1 employee was $24.73 from 29 May 2024 to 30 June 2024 and $25.65 from 1 July 2024 to 30 June 2025.
158 Accordingly, the minimum rate payable for work performed on a Saturday or Sunday was $30.91 per hour from 29 May 2024 to 30 June 2024 and $32.06 per hour from 1 July 2024 to 30 June 2025. The minimum rate payable for work performed on a public holiday was $57.7125 from 1 July 2024 to 30 June 2025.
159 While the respondent was free to negotiate an hourly rate in excess of the Fast Food Award minimum hourly rate for ordinary hours, it could not contract out of the penalty rates prescribed by the Fast Food Award for weekend work or work performed on public holidays (unless the hourly rate was more than what the penalty rates provided).
160 As it happened, between 29 May 2024 and 30 June 2024, the purported composite hourly rate of $31.8834 paid by the respondent marginally exceeded the minimum rate required to be paid for work performed on Saturdays and Sundays.
161 However, from 1 July 2024, the purported composite hourly rate no longer accounted for the minimum weekend penalty rate or the minimum public holiday rate required by the Fast Food Award. Consequently, the claimant was underpaid for hours worked on Saturdays, Sundays and public holidays during that period.
162 Attached to these reasons at Schedule II is the computation for an underpayment for hours worked by the claimant on Saturdays, Sundays and public holidays. I have used Mr Patel’s handwritten diary for the hours worked by the claimant on Saturdays and Sundays and public holidays. However, because I did not accept that the claimant took 30-minute lunch breaks, I have disregarded Mr Patel’s deduction of time to take into account a 30-minute lunch break. The amounts the respondent paid to the claimant have been determined with reference to Mr Patel’s handwritten notes, Exhibit 5, attachment 12.
the ‘Fortnightly Award Reconciliation’ table, Exhibit 5, attachment 1.
and the claimant’s pay slips included in Mr Patel’s witness statement. Exhibit 5, attachment 2.

163 The public holidays the claimant states he worked generally accord with the dates Mr Patel recorded in his handwritten diary. These public holidays include 26 December 2024 (Boxing Day), 1 January 2025 (New Years Day), 27 January 2025 (Australia Day observance) and 20 April 2025 (Easter Sunday). In addition, Mr Patel’s handwritten diary also records that the claimant worked on other public holidays, including 3 June 2024 (WA Day), 23 September 2024 (King’s Birthday), and 21 April 2025 (Easter Monday). The exception is 25 April 2025 (Anzac Day) when Karrinyup Shopping Centre and Thali, as indicated in Mr Patel’s handwritten diary, was closed.
164 The total underpayment is $557.65 for hours worked on Saturdays and Sundays.
165 The total underpayment is $901.79 for hours worked on public holidays.
Can the Underpayment Amounts be Set Off?
166 The respondent submitted that, if the Court found there was an underpayment to the claimant, any underpayment should be set off against amounts it says were otherwise paid to the claimant in excess of his minimum entitlements under the Fast Food Award.
167 For the following reasons, I do not accept that the respondent is entitled to set off the underpayments for work performed on Saturdays, Sundays and public holidays against the alleged overall overpayment relied upon by it.
168 As discussed in Fair Work Ombudsman v Woolworths Group Ltd [2025] FCA 1092; (2025) 343 IR 340, at [571], s 323(1) of the FWA requires the employer to pay amounts in full for the performance of work at least monthly. Those amounts include payment loadings, overtime rates and penalty rates. See also Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 [81].

169 There was no written contract of employment between the claimant and the respondent. Nor was there any express oral term specifying either the frequency of the claimant’s payments or that any future underpayment of wages could be set off against any alleged overpayment. The evidence establishes only that the respondent ordinarily paid the claimant on a fortnightly basis, consistent with Mr Patel’s handwritten diary entries.
170 Further, there was no agreement, whether written or oral, that payments made in excess of one award entitlement could be appropriated to satisfy a separate entitlement to penalty rates for work performed on Saturdays, Sundays or public holidays (even if such a term was enforceable).
171 The parties agreed that the claimant would be paid $31.8834 per hour. That agreement did not constitute an agreement by the claimant to forego entitlements to penalty rates under the Fast Food Award, nor could the respondent contract out of those award obligations.
172 In the circumstances of this case, s 323(1) of the FWA required the respondent to pay the claimant, in full, the amounts owing for work performed during the fortnightly pay period to which each payment related. The respondent did not do so because it failed to pay the applicable penalty rates for work performed on Saturdays, Sundays and public holidays when those amounts became due. The subsequent assertion that the claimant had been overpaid because of an agreement to be paid $31.8834 per hour does not answer that failure.
Outcome
173 Having regard to the findings made, I am satisfied that the claimant has proven to the requisite standard that the respondent failed to pay:
(a) penalty rates in compliance with cl 21 of the Fast Food Award, and in doing so the respondent contravened s 45 of the FWA.
174 A contravention of s 45 of the FWA is a contravention of a civil remedy provision.
175 I am not satisfied that the claimant has proven to the requisite standard that the respondent failed to pay:
(a) in full for all work performed over 32 hours per week; and
(b) any applicable overtime rates.
176 In failing to pay applicable penalty rates under cl 21 of the Fast Food Act, the respondent is required to pay to the claimant $1,459.44 in accordance with the terms of that modern award.
Order
1. Pursuant to s 545(3) of the FWA, when read with s 548(1A)(a)(i) of the FWA, the respondent is required to pay to the claimant the amount of $1,459.44.





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) and the Industrial Relations Act 1979 (WA)
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. The IMC, being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The civil penalty provisions identified in s 539 of the FWA include:
· Section 45 – contravention of a term of a modern award.
· Section 323 – failing to pay an amount payable in full for the performance of work.
[4] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: s 14 and s 12 of the FWA. The obligation is to 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’: s 13 of the FWA.
[5] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award or FWA: s 545(3)(a) of the FWA.
[6] A claimant may elect the small claim procedure under s 548 of the FWA provided the order sought relates to, relevantly, an amount under subsection (1A)(a)(i), namely that an amount that an employer was required to pay or an employee is under the FWA or a fair work instrument.
Burden and Standard of Proof
[7] In an application under the FWA, the claimant carries the burden of proving the claim. 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.
[8] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 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).
[9] 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
[10] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (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.
[11] Similarly, in small claim proceedings, the court is not bound by any rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities: s 548(3) of the FWA.
[12] At any stage of the small claim proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment: s 548(4) of the FWA.
[13] 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: Underpayment Calculations
[1] The claimant was paid fortnightly; there were 27 pay periods over the course of his employment between 29 May 2024 to 1 June 2025.
[2] As stated in [160] above, the $31.8834 hourly rate exceeded the weekend minimum rate for a Fast Food Employee Level 1 during pay periods 1 and 2 of the claimant’s employment. Further, the claimant did not work on a Saturday or Sunday during pay period 20.
[3] From the third pay period (between 24 June 2024 to 7 July 2024) starting from 6 July 2024, the claimant should have been paid $32.0625 per hour on weekends. The table below is based on Mr Patel’s handwritten notes, and disregards any 30minute deductions for lunch breaks:
Pay Period
Hours Worked
Amount Paid
Entitlement
3
11
$350.72
$352.69
4
22
$669.55
$705.38
5
22
$669.55
$705.38
6
22
$669.55
$705.38
7
22
$669.55
$705.38
8
23.5
$717.38
$753.47
9
22
$669.55
$705.38
10
22
$669.55
$705.38
11
22.5
$685.49
$721.41
12
24
$733.32
$769.50
13
24
$733.32
$769.50
14
21
$642.45
$673.31
15
24
$733.32
$769.50
16
24
$733.32
$769.50
17
18
$573.90
$577.13
18
19.5
$605.78
$625.22
19
18
$573.90
$577.13
21
7.5
$223.18
$240.47
22
18
$573.90
$577.13
23
18
$573.90
$577.13
24
14
$446.37
$448.88
25
18
$573.90
$577.13
26
18
$573.90
$577.13
27
15
$446.37
$480.94
Total Underpayment for Weekend Hours Worked
$557.65
[4] During pay period one, the claimant worked at Thali on 3 June 2024 which was a public holiday within Western Australia (WA Day): s 115(1)(b) of the FWA. Since this was prior to the increased minimum hourly rate in the Award, the claimant was entitled to be paid at a rate of $55.6425 per hour on this day.
[5] In addition to WA Day, and based on Mr Patel’s handwritten diary, the claimant worked on the following public holidays:
(a) King’s Birthday on 23 September 2024 (during pay period 9);
(b) Boxing Day on 26 December 2024 and New Year’s Day on 1 January 2025 (during pay period 16);
(c) Australia Day observance on 27 January 2025 (during pay period 18); and
(d) Easter Sunday on 20 April 2025 and Easter Monday on 21 April 2025 (during pay period 24).
[6] Disregarding the respondent’s deductions for 30minute lunch breaks, the table below are the calculations for underpayments on where the claimant worked on public holidays:
Pay Period
Hours Worked
Amount Paid
Entitlement
1
4
$127.53
$222.57
9
4
$127.53
$230.85
16
11
$334.78
$634.84
18
7
$207.24
$403.99
24
8
$255.07
$461.70
Total Underpayment for Public Holiday Hours Worked
$901.79