Western Australian Industrial Relations Commission

Claimant covered by Banking, Finance and Insurance Award

In a claim before the Industrial Magistrate’s Court, the claimant made claims against two respondents. The first respondent is the company that had employed the claimant and the second respondent is a company director of the first respondent.

The Industrial Magistrate has upheld in part the claims made by a finance and insurance employee who said that the first respondent contravened the national employment standards under the Fair Work Act 2009 (FW Act) and the Banking, Finance and Insurance Award 2010 (Banking Modern Award) while he was employed by them.

The respondents submitted that there was ‘no case to answer’. This was based on there being no evidence of the industries to which the Banking Modern Award applied and no evidence of the first respondent’s business within any relevant industry. This submission was dismissed by Industrial Magistrate Scaddan after it was determined that the claimant and the first respondent were covered by the Banking Modern Award.

The claimant’s appropriate level of classification was found by Scaddan IM as being a Level 2 employee from 15 March to 26 May 2017 and a Level 3 employee from 27 May to 31 October 2017.

Scaddan IM compared the entitlements paid to the claimant with his entitlements under the Banking Modern Award and calculated that he had been underpaid.

The first respondent was found to have contravened the FW Act through non-compliance with the national employment standards, the Banking Modern Award and the Fair Work Regulations 2009.

However, the claimant did not prove to the standard required that the second respondent was involved in the first respondent’s contraventions of the FW Act.

Scaddan IM ordered an amount to be paid to the claimant after being satisfied that the first respondent was required to pay this amount under the FW Act or Banking Modern Award and that they had contravened a civil penalty provision by failing to do so.

The decision can be read here.

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