Western Australian Industrial Relations Commission

Cook's annual leave claim upheld

The Commission recently upheld an employee’s claim for a denied contractual benefit of accrued annual leave but found that the claim for overtime was not made out.

Senior Commissioner Kenner preferred the employee’s evidence that he took no annual leave whilst working for the respondent as a cook and did not receive any payment for accrued annual leave when the employment ended.  He ordered payment of annual leave in the sum of $3,204 net.

However, the Senior Commissioner found that whilst it was plain from the terms of the written contract of employment that the parties turned their minds to the possibility of overtime being worked, the parties did not agree on the rates applicable to such overtime.  The relevant clause in the contract constituted an agreement to agree and no agreement was reached.  Accordingly, he found the term was not enforceable.

Senior Commissioner Kenner noted that depending on the respondent’s business structure, either the Restaurant, Tearoom and Catering Workers Award or the Hospitality Industry (General) Award 2010 would have covered the employment.  Accordingly, the contract of employment would need to be read along with the relevant award obligations relating to overtime.   A further term as to a rate of pay for overtime could not be implied into the contract, as it would not be necessary for the effective operation of the contract. The employee’s claim for overtime was refused. Any enforcement of the relevant award must be brought in the Industrial Magistrates Court.

The decision can be read here

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