Western Australian Industrial Relations Commission

Part-time worker underpaid for overtime hours

The Industrial Magistrate's Court has upheld, in part, claims made by the Australian Workers' Union (the AWU) which alleged that the respondent had contravened sections of the Fair Work Act 2009 (Cth) (the FWA). The AWU claimed that its member was not paid the required amount for overtime hours worked; did not establish a system to determine any payment shortfalls and did not pay the full amount that the Enterprise Agreement entitled him to.

To determine the AWU member's agreed hours of work, Scaddan IM considered that the Court can only have regard to the terms contained in the member's Enterprise Agreement (including the undertakings) and the employment contract.

The relevant terms contained in the member's employment contract included 'that he was to work a minimum of 20 hours per week, and reasonable additional hours as determined by the roster that was made available weekly'. Her Honour determined that a 'minimum of 20 hours per week' meant the least possible number of hours that the member worked would be 20 hours per week with reasonable and variable additional hours as determined by a roster published on the Wednesday before the week commencing Monday.

Her Honour then found that overtime rates would apply if the member worked more than the published weekly agreed hours and for any hours worked more than 38 hours per week.

Scaddan IM determined the amount owed for overtime and reduced this sum by what the respondent had already paid. This resulted in her Honour's conclusion that the AWU's member had been underpaid and that the respondent had consequently contravened the FWA.

The decision can be read here.

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