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.

Background

The claimant was a casual barista employed by the respondent. The claimant’s employment was subject to the Restaurant Industry Award 2010 (‘Award’).

Contentions

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.

Findings

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 [2014] 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.

The Commission has affirmed a Construction Industry Long Service Leave Payments Board decision to require contributions to a traffic controller, finding they were engaged in the construction industry. 

Background

The respondent determined the applicant was liable for an employee’s long service leave contributions under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (‘the Act’). The applicant specialised in traffic management, and their business involved designing, planning for, and directing vehicle and pedestrian traffic to ensure public safety around roadworks.

The applicant sought review of the respondent’s decision under s 50(2) of the Act.

Contentions

The applicant contended that for the purposes of the Act it was not an employer, and it did not engage persons as employees in the construction industry, and that finding the employee was engaged in the construction industry required them to actively do construction, maintenance, and repairs of roads. The respondent contended a correct construction of the Act required something less than engagement in the above activities which were listed in the definition of ‘construction industry’ in the Act.

Both parties accepted; the employee was employed by the applicant, did not construct, maintain, or repair roads, and worked where roadworks took place and at ‘sites’ within the ‘construction industry’.

Findings

Senior Commissioner Cosentino found s 50(2) and 50(3) of the Act permitted it to review the respondent’s decision and required it to inquire into and affirm, vary, or set aside the decision. The Senior Commissioner found no parties had an onus of proof and it was required to to assess the facts and apply the Act’s provisions.

The Senior Commissioner found the employee was in a work classification of one of the industrial instruments under the Act, and that being engaged in the construction industry required that the employee’s work can be characterised as in the industry. The Senior Commissioner noted earlier Supreme Court and Commission decisions and found that engaged ‘in the construction industry’ did not mean performing work precisely listed as activities in the ‘construction industry’, and that characterising the employer as operating in another industry did not disqualify work from being in the ‘construction industry’. The Senior Commissioner found the employee’s work as a traffic controller was in the construction industry as a part of the steps, processes, or tasks that, together with other steps, processes or tasks amounted to road construction, reconstruction, maintenance, or repairs. The Senior Commissioner found that the applicant employed the specific employee in the construction industry for the purpose of the ‘employer’ definition and that the applicant was an ‘employer’ for the purpose of the Act.

The Senior Commissioner considered two alternative arguments and found the employee was not engaged in the industry of carrying out any activity of or to the works referred to in subpar (xvi), and that they could not he could be said to work in the ‘construction industry’ under (xvii) of the Act.

The Senior Commissioner affirmed the reviewable decision of the respondent.

The decision can be read here.

The Industrial Magistrate has granted an application seeking the claimant pay the respondent’s costs of proceedings in relation to an underpayment of wages claim.

Background

The claimant union filed an Industrial Magistrates Court claim alleging employee wages and superannuation underpayments, failure to comply with the award and the Fair Work Act 2009 (Cth).

The respondent denied the claim indicating they would seek costs. The employee was paid a supplementary payment after a payment shortfall was identified by an audit.

When ordered to, the claimant lodged an amended claim updating the figures for unpaid wages and superannuation and seeking additional payment for 15 minutes each shift the employee had worked.

The respondent lodged a counterclaim alleging the employee failed to work the entirety of their shifts and seeking payment for the overpaid wages. After discussion, the claimant discontinued proceedings.

The respondent lodged an application seeking costs be paid by the claimant pursuant to reg 11 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA) (Regulations).

Contentions

The respondent sought costs, relying on both claims, their responses and two affidavits. The claimant opposed this, relying on submissions and their representative’s affidavit about dismissing the claim.

Findings

The Industrial Magistrate found reg 11 of the Regulations sets out a discretionary power to award costs, and that the Court must be objectively satisfised the case was frivolously or vexatiously instituted or defended. The Industrial Magistrate noted costs are awarded in extreme cases, such as instituting proceedings without reasonable cause or where an employee was not subject to an award.

The Industrial Magistrate found an affidavit from each party were consistent with each other. The Industrial Magistrate found the respondent was required to prove its application and this was not reversed by the claimant not relying upon any substantial evidence in response. The Industrial Magistrate noted the claimant was not required to explain why the claim was discontinued.

The Industrial Magistrate found it was unnecessary to consider why the claim did not proceed to trial when determining if it was instituted frivolously or vexatiously and relied on The Commissioner of Police of Western Australia v AM [2010] WASCA 163, as the Regulations did not define either word.

The Industrial Magistrate found the claim was patently faulty as shown by plain reading of the claims, review of the award and one of the claimant’s filed affidavits. The Industrial Magistrate noted the amended claim order came about as the first claim attached a spreadsheet with errors and failed to address how amounts claimed arose in relation to the compensatory payment made by the respondent.

The Industrial Magistrate noted the claim should have been discontinued after the audit calculations demonstrated it had no merit. The Industrial Magistrate considered the additional 15 minutes claimed for each shift and found the amended claim was to bolster an otherwise unsustainable claim.

The Industrial Magistrate found there were major defects in both claims, each was untenable, or in the alternative, the claim was so frivolous that to allow it to continue would involve ongoing expense to both parties and the Court, considering the likely necessary interlocutory applications.

The Industrial Magistrate noted the lack of foresight and preparation by the claimant’s previous industrial officer led to the respondent incurring the expense of defending a claim destined to fail.

The Industrial Magistrate found this was an extreme case and that ordinarily the industrial regime should be a ‘no costs’ jurisdiction to allow all members of the community access to justice without fear of excessive costs. The Industrial Magistrate noted the claimant’s experienced representative failed to ensure necessary checks and balances were in place to bring a competent claim. The Industrial Magistrate found this wasted the Court’s time and resources, requiring the respondent to incur ongoing, prolonged, and unnecessary legal costs. The Industrial Magistrate found that as the claim was frivolously instituted, it was not required to consider if the claim was vexatiously instituted.

The Industrial Magistrate found the case was frivolously instituted and ordered the claimant to pay the respondent’s party-party costs from 12 January 2021, to be assessed, if not agreed.

The decision can be read here.

 The Work Health and Safety Tribunal has upheld an objection to a WorkSafe discovery application, finding that the documents did not relate to the matter in question, or were not discoverable.

Background

The applicant was a farming company, and the respondent was the WorkSafe Western Australia Commissioner. A WorkSafe Inspector (‘Inspector’) issued an Improvement Notice (‘Notice’) to the applicant identifying that its employees were exposed to a hazard relating to riding a horse without a helmet. The applicant referred the notice to the Tribunal for further review, and later objected to the discovery of Category 1 documents which covered: all records or documents relating to injuries sustained by any of the Applicant’s staff while working with horses since 1 January 2016.

Contentions

The applicant contended Category 1 was too broad, as it sought documents relating to all the applicant’s employees and not just those employed at Carlton Hill Station where the contravention of s 19(1) of the Occupational Safety and Health Act 1984 (WA) was said to have taken place. The applicant contended it should not be required to discover documents relating to all horse related injuries beyond the confines of the specific hazard and relevant practicable measures.

The respondent contended that Category 1 was relevant as it would demonstrate the unpredictability of horses and the causes and prevalence of falls from horses. The respondent contended Category 1 was relevant to the effectiveness of the applicant’s hazard mitigation efforts at Carlton Hill Station.

Findings

The Tribunal found that a document will be discoverable if it relates to the matter in question. The Tribunal found that the matter in question was whether the Inspector was justified in forming the opinion that she did when issuing the Notice.

The Tribunal noted that it was not apparent that the Inspector’s opinion related to all the applicant’s staff, and that neither the Inspector’s opinion nor the applicant’s reasons for decision refer to workplaces other than the Carlton Hill Station.

The Tribunal noted it was unclear why documents about injuries generally sustained while working with horses could or would demonstrate the prevalence of falls from horses or why they are necessary for the fair disposal of the case. The Tribunal noted it did not appear the Inspector’s opinion was framed to relate to the unpredictability of horses, or general horse related injuries.

The Tribunal found that the documents sought in Category 1 were not discoverable to the extent that they went beyond serious injury or death resulting from a rider falling from a horse and receiving impact to the head at Carlton Hill Station since January 1, 2016.

The Tribunal found that the documents in Category 1 were not necessary for the fair disposal of the case, and it would not be just to order they be discovered. The Tribunal upheld the applicant’s objection to the discovery application and asked the parties to confer and write to the Tribunal’s Associate proposing any orders the parties say the Tribunal should make to give effect to its reasons.

The decision can be read here.

The Work Health and Safety Tribunal has upheld an objection to a discovery application, finding that the documents did not relate to the workplace in question; did not relate to the matter in question; and were not necessary for the fair disposal of the case

Background

The applicant was a mining company, and the respondent was the Worksafe Western Australia Commissioner. The respondent affirmed the Improvement Notice (‘Notice) of a Worksafe inspector (‘Inspector’) which identified that the applicant’s employees were exposed to a hazard involving riding a horse without a helmet. After the applicant referred the Notice to the Tribunal for further review, the applicant objected to providing the following documents to the respondent:

• Category 1: All records or documents relating to injuries sustained by any of the Applicant’s staff in the course of working with horses since 1 January 2016.
• Category 3: Documents setting out the Applicant’s policies and procedures regarding the use of motor bikes

Contentions

The applicant contended Category 1 was too broad as it covered all horse-related injuries beyond the specific hazard within the Notice, and Category 3 was not relevant to the Tribunal’s determination.

The respondent contended the records or documents in Category 1 were relevant because they demonstrated the unpredictability of horses and the causes and prevalence of falls from them. The respondent contended Category 1 was relevant to assessing the effectiveness of the applicant’s hazard mitigation efforts at Fossil Downs. The respondent contended Category 3 was necessary as the applicant at certain times of year retired motorbikes due to high temperatures when wearing helmets.

Findings

The Tribunal considered discovery under s 27(1)(o) of the Industrial Relations Act 1979 (WA) and according to caselaw principles. The Tribunal noted it must consider if the documents related to a matter in question, and if so, whether it was just to order discovery. The Tribunal found the matter in question was whether the Inspector was justified in forming her opinion when issuing the notice.

The Tribunal found that documents relating to workplaces other than the Fossil Downs station did not relate to the matter in question and noted the Inspectors opinion did not relate to the unpredictability of horses or to general horse related injuries. The Tribunal found Category 1 documents were not discoverable to the extent that they went beyond serious injury or death resulting from a rider falling from a horse and receiving impact to the head at Fossil Downs Station since 1 January 2016.

The Tribunal noted it was not apparent that the use of motorbikes was yet relied upon or at issue. The Tribunal found that Category 3 did not relate to the matter in question and the Inspector’s opinion.

The Tribunal found that Categories 1 and 3 were not necessary for the fair disposal of the case and it would not be just to order they be discovered. The Tribunal upheld the applicant’s objection to the discovery and asked the parties to confer and write to the Tribunal’s associate proposing any orders that the parties say the Tribunal should make to give effect to the reasons.

The decision can be read here.