The Industrial Magistrate has confirmed a Compliance Notice issued pursuant to the Fair Work Act 2009 (Cth) on the basis that the employer failed to pay an employee overtime as required under the Restaurant Industry Award 2010 (Cth) (the Award).

Background

The claimant operated a restaurant called Chocolateria San Churro, Northbridge.

Between July 2011 and May 2016, the employee was employed by the claimant on a full-time basis, including during the period of October 2013 to May 2016 (the Contravention Period). During the Contravention Period, the employee claimed that he routinely worked 50 - 60 hours over 6 days per week but was not paid overtime as required under the Award.

In September 2019, the respondent, being a Fair Work Inspector, issued a Compliance Notice to the claimant in respect to the employee’s employment during the Contravention Period. The Notice alleged that the employee was employed as a ‘Food and beverage attendant grade 3’ (the Attendant) under the Award and required the claimant to calculate and rectify its failure to pay the employee overtime for that classification.

Submissions

The claimant argued that as the employee was a Manager, the Award could not apply to his employment. Alternatively, the claimant argued that if the employee was covered by the Award, the employee would not have been classified as the Attendant. This was because the work performed by the employee included further duties which placed him outside of the Award.

The claimant sought a finding that it did not contravene the Award and said that the Notice should be cancelled.

The respondent said the Notice should be confirmed as the Award applied to the employee’s employment and the appropriate classification under the Award is the Attendant.

Findings

Industrial Magistrate Scaddan found that although the employee was employed as a Manager, the majority of his work involved the duties described under the meaning of the Attendant in the Award. Her Honour noted that whilst the employee performed other duties, some of which could be described as managerial or supervisory, there was no clear evidence that these duties formed the major or substantial part of his work.

Her Honour also found that the employee held the appropriate qualifications and level of training to be classified as the Attendant.

Scaddan IM determined that the Award applied to the employee’s employment during the Contravention Period and he was required to be paid as the Attendant as described in the Award.

The Compliance Notice was confirmed.

The decision can be read here.