Western Australian Industrial Relations Commission

Pecuniary penalty awarded for employer’s contraventions

The Industrial Magistrate’s Court has made several findings and determined a claimant’s claim which alleged that their former employer contravened the Restaurant Industry Award 2010 and, in doing so, further contravened the Fair Work Act 2009 (FWA), the Fair Work Regulations 2009 and the Long Service Leave Act 1958. The claim related to the first respondent, the company that had employed the claimant in different kitchen work roles. This caused him to be paid above and below the minimum rates of pay and not paid for other entitlements applicable to his various classifications. The claimant further alleged that the second respondent, a company director of the first respondent, was knowingly involved in the first respondent’s alleged contraventions.

Industrial Magistrate Scaddan considered the issues requiring determination by reference to the relevant time periods. For the period 1 July 2012 to 16 February 2014, Scaddan IM found that the first respondent had contravened section 45 of the FWA as the claimant was employed as a casual level 1 kitchen hand grade 1 and was occasionally not paid the relevant award rate for hours worked.

From 1 February 2015 to 29 May 2015, her Honour found that the Company had contravened s 45 of the FWA when it did not appropriately classify the claimant and had not paid him the relevant award rate for his classification.

Finally, during 30 May 2015 to 10 February 2017 the Industrial Magistrate found that the first respondent had contravened s 45 of the FWA as the claimant should have been employed at a higher level and was entitled to be paid at the relevant hourly rate.

Her Honour determined that the first respondent had also contravened ss 45 and 535 of the FWA when it failed to retain and maintain records, did not keep start and finish times and did not make available copies of the Award and National Employment Standards as required. However, her Honour was not satisfied that the claimant’s claim against the second respondent was proven to the requisite standard.

The decision can be read here.

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