Industrial Magistrate orders payment to barista after incorrect Award classification
The Industrial Magistrate has upheld in part the claim of a barista for underpayment, ordering the respondent pay the claimant the difference between the rate paid and their correct Award classification, however dismissed the claimant's claim in relation to breaks.
The claimant was a casual barista employed by the respondent. The claimant’s employment was subject to the Restaurant Industry Award 2010 (‘Award’).
The claimant contended their Award classification was Food and Beverage Attendant Grade 2 (Grade 2), they were incorrectly classified and underpaid, and the respondent breached cl 32.1 and cl 32.4 relating to breaks. The Claimant contended this meant the respondent had breached s 44 of the Fair Work Act (Cth) (‘FWA’) and were liable for the alleged underpayment and a penalty under s 539.
The respondent denied the claim. At the trial, the respondent’s director, who managed the cafe, accepted the Award applied to the employment and was not just a guide as contended earlier. The director acknowledged that if the claimant was a Grade 1 employee, they were underpaid as they were not paid that rate and wrote a cheque for the amount underpaid. The claimant contended this did not satisfy their claim for their reasons above.
The Industrial Magistrate found the claimant’s primary role was a barista, but they performed other tasks and showed initiative in assisting busy employees and noted the claimant’s managerial experience elsewhere did not assist their case. The Industrial Magistrate found the claimant performed many different duties but exaggerated the significance of duties away from the coffee machine, and did not regularly wait tables, shop for the business, or reconcile tills. The Industrial Magistrate noted that even if they had, they took these duties upon themselves and were not in a managerial position.
The Industrial Magistrate considered Appeal by Restaurant and Catering Association of Victoria  FWCFB 1996 and found that a barista can be classified under the Award at Grade 2 or 3 and allowed this aspect of the claimant’s claim as their barista work should have been paid at Grade 2.
The Industrial Magistrate found the claimant was almost always required to work five hours or more, meaning the respondent was required to provide a 30-minute unpaid meal break under cl 32.1 of the Award. The Industrial Magistrate found the claimant was permitted to have breaks, was not required to work longer than six hours without a 30-minute break, and that timesheets made it clear the claimant took the requisite breaks. The Industrial Magistrate found the respondent had not breached cl 32.1. The Industrial Magistrate considered timesheets marked as having no break along with other evidence and found these timesheets inaccurate. The Industrial Magistrate found as the claimant was given meal breaks according to cl 32.1, there was no breach of clause 32.1, as the respondent was not obligated to pay the claimant 150% of the base rate of pay, from the end of six hours until a break was given, or the shift ended.
The Industrial Magistrate ordered the respondent pay the difference between the rate paid and the Grade 2 rate for the entirety of the period of employment. The Industrial Magistrate dismissed the claim in respect of a breach of cl 32.1 and 32.4 of the Award.
The decision can be read here.