2022 WAIRC 00712
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2022 WAIRC 00712

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
WEDNESDAY, 30 MARCH 2022 AND THURSDAY, 31 MARCH 2022

DELIVERED : WEDNESDAY, 12 OCTOBER 2022

FILE NO. : M 29 OF 2020

BETWEEN
:
BRIAN ROBERT CLIFFORD-SMITH
CLAIMANT

AND

KEEN BROS. (WA) PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – Breach of award – Underpayments and denial of benefits – Flat hourly rate in excess of award entitlement for ordinary time – Method of calculation of amount due to employee
Legislation : Fair Work Act 2009 (Cth)
Instrument : Educational Services (Post-Secondary Education) Award 2010 (Cth)
Case(s) referred
to in reasons: : Clifford-Smith and Anor v Keen Bros. (WA) Pty Ltd [2020] WAIRC 00967
James Turner Roofing Pty Ltd v Peters [2003] WASCA 28
Result : Claim dismissed
REPRESENTATION:

CLAIMANT : SELF REPRESENTED
RESPONDENT : MR S. KEMP (OF COUNSEL) FROM KEMP & ASSOCIATES


REASONS FOR DECISION
Introduction
1 The Respondent to this claim, Keen Bros. (WA) Pty Ltd, delivers truck driving training and is an authorised provider for the Department of Transport WA. This allows the Company to ‘conduct practical driving assessments on behalf of the Director General of the Department for Heavy Rigid, Heavy Combination and Multi Combination licences’. Exhibit R6 – Witness Statement of Paul Keen signed 8 March 2022 lodged 10 March 2022 [3].

2 In uncontradicted evidence, the Respondent’s director, Paul Keen (Mr Keen), explained:
4. The predominant business of [Keen Bros] is delivering ‘one on one’ in vehicle supervision to learners with the objective of enabling those learners to obtain a heavy vehicle class driving licence issued by the Department of Transport. The instruction involves the learner driving one of the Company’s vehicles under the supervision of a driving instructor, who observes the learner and provides oral and practical feedback on the learner’s performance.
5. The supervised driving usually occurs in one-hour sessions. In the case of light rigid and medium rigid licences, these are often conducted in 3 hour sessions followed by a one hour practical driver assessment conducted by a driving assessor employed by the Department of Transport. Exhibit R6 [4] - [5].

3 The Claimant, Brian Robert Clifford-Smith, worked for the Respondent as a truck driving instructor/assessor from 24 July 2015 to 1 October 2019 (Period of Employment).
4 The evidence led at trial established that:
(a) As at July 2015, the Claimant was an experienced truck driving instructor and assessor.
(b) At that time, he had been working for more than 7 years as a truck driver instructor/assessor for a company called Wrightway.
(c) Around July 2015, he had seen an advertisement on the back of a truck for employment with the Respondent at the rate of $35 per hour.
(d) He inquired about work with the Respondent and participated in a brief employment interview (the Interview) with Mr Keen.
(e) The Interview took place in July 2015.
(f) Mr Keen agreed to employ the Respondent, with an immediate start.
(g) The Claimant did not receive a written contract of employment, but the understanding from the Interview was that he was to be employed on a full-time basis.
(h) On 24 July 2015, the Claimant began working for the Respondent as a truck driving instructor and assessor.
(i) At the end of his first week of work, the Claimant negotiated an arrangement to work part-time, 4 days per week (Monday to Thursday).
(j) He continued working for the Respondent under this part-time arrangement until 1 October 2019.
(k) From 24 July 2015 to 2 July 2019, the Claimant was paid $35 per hour.
(l) From 3 July 2019 until the end of his employment with the Respondent, the Claimant was paid $38 per hour.
Contemplation Of Industrial Instrument
5 When Mr Keen employed the Claimant to work for the Respondent, neither he nor anyone working for the Respondent knew that any award applied to the Respondent’s employees. This is unsurprising. It had been a widely-held understanding in the Respondent’s industry – and in fact the Fair Work Ombudsman had provided advice – that employees in that industry were award-free.
6 In bringing this claim, the Claimant submitted that:
(a) The Educational Services (Post-Secondary Education) Award 2010 (Cth) (Award) applied to and covered his employment with the Respondent; and
(b) The Respondent had breached various terms of the Award and, being a National System Employer, was therefore in contravention of civil remedy provisions of the Fair Work Act 2009 (Cth) (FWA).
7 The Respondent disputed that the Award was applicable to the Claimant’s employment. That was the preliminary issue for determination.
8 In her reasons for decision in Clifford-Smith and Anor v Keen Bros. (WA) Pty Ltd [2020] WAIRC 00967, Industrial Magistrate Scaddan found that the Award was applicable to and did cover the Claimant’s employment with the Respondent. Consequently, the Claimant’s claim proceeded to trial before me on 30 March 2022 and 31 March 2022.
The Contract Between The Claimant And the Respondent
9 It is necessary to determine the agreed terms of the Claimant’s employment.
10 In evidence at trial, the Claimant said he had left Wrightway’s employ on a Thursday, and telephoned the Respondent the next day about working for them. He was promptly invited in for the Interview, which was with Mr Keen. The Claimant said that the Interview was brief, partly because it was interrupted by the arrival of someone the Claimant knew from somewhere else. In any event, it was clear that Mr Keen was happy to have the Claimant start work as a truck driving instructor/assessor; the work was to be full-time, and the Claimant would be paid $35 per hour.
11 The Claimant said no contract was provided to him and there was no induction process, but he thought perhaps these things would happen at a later date. He also said that there was no discussion as to what hours he would be expected to work.
12 Mr Keen gave the following evidence about the interview: Exhibit R6 [12].

12. At the interview I offered Mr Clifford-Smith employment and told him that the terms of his employment would be as follows:
(a) he would be engaged for 5 days per week, Monday to Friday, but may also be offered work on a Saturday from time to time;
(b) there were no guaranteed hours of work;
(c) he would be paid only for those hours he:
(i) delivered driving instruction to students;
(ii) waited at the Department of Transport whilst a student was being tested by an assessor of the Department;
(iii) performed alternative work when there was a ‘no show’;
(iv) was required to attend staff meetings;
(d) he would not be paid for ‘no shows’ (where a student failed to attend a booked class) unless he elected to perform alternative work as instructed, in which event he was required to complete a ‘no-show slip’;
(e) he would be paid a flat hourly rate ($35 per hour on weekdays and $38 per hour on Saturday) which was an all-inclusive amount to compensate him for all and any entitlements arising out of his employment and the work he performed, plus any applicable superannuation entitlements.
13 Under cross-examination by the Claimant, Mr Keen accepted that at the Interview, he did not read the conditions of employment to the Claimant from a document; nor were any documents exchanged. However, when the Claimant put to him that he did not provide the Claimant with any detailed oral explanation of the payroll conditions or entitlements, Mr Keen replied ‘Yes, I did’. Transcript, 31 March 2022, 146.

14 Mr Keen also made the undisputed point that at the end of the first week the Claimant requested to work part-time, upon which Mr Keen and the Claimant agreed that the Claimant would work four days per week, Monday to Thursday. Exhibit R6.

15 I accept Mr Keen’s evidence that at the interview, he explained the terms of employment in the manner set out at paragraph 12 above. The Claimant’s evidence to the contrary lacks credibility. I say so for the following reasons. First, the Claimant was very familiar with the industry and well aware of the nature of the work he would be undertaking for the Respondent – it was almost identical to the work he had been doing for Wrightway. By the time of the Interview, the Claimant was an experienced truck driving instructor/assessor. On his own evidence, he had had a very different experience on commencement at Wrightway, in which there was a contract and a formal induction process. If anything, that prior experience should have pressed the Claimant to seek information if he felt the Interview had been lacking in detail. He did not – he commenced work for the Respondent and continued to work for it for 4 years. I do not accept that he did so in a fog of uncertainty about his employment conditions.
16 The Claimant has also demonstrated himself to be a person who digs industriously (if not necessarily with a clear sense of direction) for answers where he feels there is an issue that requires a solution. He was aware of the application of awards and payroll systems in other contexts. I do not accept that someone with the Claimant’s experience in the industry and general interest in payroll and industrial matters would have been content to start work without knowing what his terms of employment were.
17 Although the Claimant was unsure of the exact date he started work, I am satisfied on all the evidence that his first day was Friday 24 July 2015.
18 The Claimant said that at the end of his first week of work, he asked Mr Keen if he could work Monday to Thursday, so that he could have Fridays free because his wife did not work on Fridays. Mr Keen agreed to this arrangement, although the Claimant understood he might occasionally be asked to work a Friday or Saturday – and in fact this did happen, although not very often.
19 Apart from saying the change in the Claimant’s work pattern from full-time to four days per week happened ‘at the end of the first week’, none of the witnesses referred to a date when discussing this change. Having regard to the Daily Instructor Logs in the Claimant’s paginated documents, Exhibit C1 – Claimant’s Paginated Documents filed 23 March 2022, WS Doc 7(a) - WS Doc 7(e).
it appears he worked on Friday 24 July 2017 and Monday 27 July 2015. He then did not work again until Monday 3 August 2015. He worked every day from Monday 3 August 2015 to Friday 7 August 2015. After that, it appears he moved to the Monday to Thursday pattern, with the exception of the occasional Friday.
20 For his first week of work, the Claimant was a full-time employee. Thereafter, he was a part-time employee. This is because he was employed for less than the normal ordinary hours specified for a full-time employee.
Did The Terms Of Employment Comply With The Award?
21 Pursuant to the findings of Industrial Magistrate Scaddan in Clifford Smith and Anor v Keen Bros. (WA) Pty Ltd, [2020] WAIRC 00967.
the Claimant was a tutor/instructor for the purposes of the Award.
22 Clause 21.3 of the Award, entitled ‘Ordinary hours of work—teachers and tutor/instructors’, provides that for ‘the purposes of the NES, the ordinary hours of work are 38 per week’. This refers to the maximum number of hours an employee can be required to work in a week.
23 The Claimant was a full-time employee for his first week of employment, but with that exception, he was a part-time employee for the remainder of Period of Employment. There is no suggestion put by the Respondent that the Claimant was employed on a casual basis.
24 Clause 10.3 of the Award provides:
(a) A part-time employee is an employee employed for less than the normal ordinary hours specified for a full-time employee, or in the case of a teaching staff member for less than the face-to-face teaching load of a full-time teaching staff member at that workplace, for which all award entitlements are paid or calculated on a pro rata basis by reference to the time worked.
(b) Before engagement the employer and the part-time employee will agree in writing on a regular pattern of work, including the number of hours to be worked each week, the days of the week the employee will work, the starting and finishing times each day where hours are not averaged and any periods during a year when work by the employee will not be required.
(c) Changes in hours may only be made by agreement in writing between the employer and the employee.
(d) An employer is required to roster a part-time employee for a minimum of two consecutive hours on any day.
(e) A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
(f) Except where hours are averaged, all time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.
25 Aside from during the first week of the Period of Employment, the Claimant was at all times an employee employed for less than the normal ordinary hours specified for a full-time employee. Although the Respondent had no contemplation of the Award, the Claimant’s entitlements to annual leave, public holiday pay and other entitlements were paid or calculated on a pro rata basis by reference to the time worked. Transcript, 31 March 2022.

26 Because Mr Keen did not realise that the Award applied to the Claimant’s employment, there was no agreement in writing, as required by cl 10.3(b) of the Award. However, the Claimant’s part-time arrangement came into effect because he asked for it and the Respondent acceded to his request. I am satisfied on the evidence that the Claimant and Respondent were both well aware of all matters referred to in cl 10.3(b) of the Award – i.e., that:
(a) The Claimant would work Monday to Thursday (with the rare exception of a Friday or Saturday if requested);
(b) He would be engaged predominantly to supervise learners seeking to attain a medium rigid or light rigid driver’s licence, and this would usually involve a four-hour engagement;
(c) There would be no guaranteed hours of work;
(d) The Claimant would not be paid if a student was a ‘no-show’, unless he undertook administrative duties in the business;
(e) The number of hours per week would be variable, in keeping with the intermittent nature of bookings;
(f) The pattern of hours would generally be within the hours of 7.00 am to 11.30 am and/or approximately 2.00 pm to 5.00 pm.
27 In accordance with cl 10.3(d) of the Award, the Respondent always required the Claimant to work for more than two consecutive hours on any day.
28 It was understood that the Claimant would instruct and/or assess students on the basis outlined above. This was the mutual arrangement. There was no occasion on which he worked in excess of the hours mutually arranged and therefore no claim for overtime under cl 10.3(f) of the Award arises.
29 As to whether the agreement reached between the Claimant and the Respondent complied with the requirements of the Award, this must be considered in the context of the relevant industry. The nature of the Respondent’s business is that hours of work are not available in a continuous stream. Sometimes no courses are booked, and sometimes students do not show for booked sessions. In those circumstances, the terms of the Claimant’s employment were entirely in keeping with the nature of the business.
30 In view of this finding, there can have been no ‘missed hours’ or ‘stand-downs’, contrary to the Claimant’s submission.
31 No claim has been brought for contravention of the agreement by virtue of no written agreement. If such a claim had been brought, I would not have imposed any penalty upon the Respondent, given the Respondent’s entirely understandable belief, at the relevant time, that no award applied.
Job Classification
32 Pursuant to cl 10.3(e) of the Award, the Respondent was required to pay the Claimant ‘for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed’.
33 Further, cl 21.3(c)(ii) of the Award provides:
21.3 Ordinary hours of work—teachers and tutor/instructors
…
(c) For the purpose of determining the number of hours worked by a teacher or tutor/instructor the following will apply:
(i) …
(ii) each contact hour of delivery by a tutor/instructor will count as 1.25 hours of work, including administration, assessment and consultation.
34 The meaning of cl 21.3(c)(ii) of Award is that each contact hour of delivery – that is, each hour spent instructing or assessing students – worked by a tutor/instructor is equivalent to 1.25 hours for the purposes of paying wages. The reason each contact hour is made equivalent to 1.25 hours is to recognise the preparation time necessary to delivering a contact hour.
35 Clause C.4.1 of the Award provides:
C.4.1. A Tutor/instructor will be classified in accordance with the following:
(a) Tutor/instructor Level 1 is a person with appropriate subject knowledge and skills as determined by the employer. A Tutor/instructor Level 1 will commence at Level 1 and may progress to a maximum of Level 3.
(b) Tutor/instructor Level 2 is a person with appropriate subject knowledge and skills as determined by the employer and who has the minimum qualification of Certificate IV in Training and Assessment (TAA40104) or equivalent. A tutor/instructor Level 2 will commence at Level 2 and may progress to a maximum of Level 7.
36 At the beginning of the Period of Employment, the Claimant held a Certificate IV in Training and Assessment (TAE40110). TAE40110 superseded and was equivalent to TAA40104. Qualification details - TAE40110 - Certificate IV in Training and Assessment (Release 4) (Web Page) <training.gov.au - TAE40110 - Certificate IV in Training and Assessment>.
Further, it is clear that, during the Interview, Mr Keen determined that the Claimant had ‘appropriate subject knowledge and skills’ pertaining to truck driver training and assessment.
37 The Claimant therefore fell within cl C.4.1(b) of the Award and was, at minimum, a tutor/instructor Level 2 when he commenced working for the Respondent.
38 The fact is that the Respondent did not classify the Claimant pursuant to the Award, given that the Respondent did not even know that the Award was applicable. But in my view, even if the Respondent had had the Award in contemplation: on a plain reading of cl C.4.1 of the Award, there was no requirement for the Respondent to classify the Claimant at any level above Level 2 when he commenced the Period of Employment.
39 There is clear contrast between cl C.4.1 and cl C.1.1 of the Award. Clause C.1.1 of the Award states:
C.1.1. On appointment a teacher will be placed on a salary level commensurate with the minimum salary for their qualifications and experience as determined by this schedule.
40 Clause C.1.1 of the Award plainly requires employers of teachers to consider a teacher’s qualifications and experience in any previous context in order to determine the appropriate classification in a new role. By contrast, cl C.4.1 of the Award does not require this. I should think that it would be open to a tutor/instructor to put a case to a new employer to be paid at a rate higher than Level 2 upon commencement, based on experience gained in previous employment. But if such a case is not put, there is no requirement for an employer to classify a tutor/instructor at any level higher than Level 2 upon commencement.
41 In this case, the Claimant did not put any argument to the Respondent that he should be paid Award rates and/or that he should be classified higher than Level 2. In those circumstances, I find that upon commencement, he was a tutor/instructor Level 2.
42 Thereafter, the Claimant was entitled to move up a level on each yearly anniversary of when he began employment – i.e., on 24 July each year – provided he had fulfilled the requirements of cl C.5.4 of the Award at the conclusion of each 12 month period.
43 Clause C.5.4 provides:
C.5.4. Movement to the next pay point will only occur when the employee has, over the preceding 12 months:
(a) acquired and utilised additional skills, experience and competencies within the ambit of the classification level and in accordance with the priorities of the employer; and
(b) demonstrated satisfactory performance.
44 The Award requires an employer to determine the matters in cl C.5.4 of the Award by carrying out a performance review before the end of each 12 month period: cl C.5.1 of the Award.
45 In this case – again, because the Respondent did not have the Award in contemplation – no performance reviews were conducted. While I have no difficulty finding that the Claimant at all times demonstrated satisfactory performance in his work with the Respondent, the evidence that he met the requirements of cl C.5.4(a) of the Award is scant. However, I am prepared to take a view most favourable to the Claimant and conclude that had he been subject to performance reviews, he would have been found to have fulfilled the requirements of cl C.5.4 of the Award on or before each anniversary of his commencement date. I therefore find that he moved through the classification levels as follows:
Anniversary Date
Level
24 July 2015
2
24 July 2016
3
24 July 2017
4
24 July 2018
5
24 July 2019
6
46 Taking into account the increase to Award rates on 1 July of each year, the hourly rate applicable to the Claimant for ordinary hours worked in each period was as follows:
Period
Level
Hourly Rate
24 July 2015 - 30 June 2016
2
$22.93
1 July 2016 - 23 July 2016
2
$23.48
24 July 2016 - 30 June 2017
3
$23.95
1 July 2017 - 23 July 2017
3
$24.74
24 July 2017 - 30 June 2018
4
$25.22
1 July 2018 - 23 July 2018
4
$26.11
24 July 2018 - 30 June 2019
5
$27.16
1 July 2019 - 23 July 2019
5
$27.98
24 July 2019 - 1 October 2019
6
$28.70
47 The Respondent’s accountant, Shelley Johnston (Ms Johnston), gave comprehensive evidence concerning the hours worked by the Claimant during the Period of Employment. She did so via her statement Exhibit R7 – Witness Statement of Shelley Marie Johnston signed 8 March 2022, lodged 10 March 2022.
and via a detailed analysis of the Respondent’s payroll system. Exhibit R1 – Respondent’s Paginated Documents filed 17 February 2022, documents 4 - 13.
That analysis resulted in documents which illustrated the contact and non-contact hours worked by the Claimant during the Period of Employment.
48 Ms Johnston’s analysis contemplated two scenarios:
(a) one in which all hours worked – contact hours of delivery (multiplied by 1.25) and non-contact hours – were paid at the Award rate (Analysis A); and
(b) the other in which non-contact hours were excluded from any pay under the Award (Analysis B).
49 I consider the correct analysis is Analysis A, in which the Claimant was entitled to be paid at Award rate for 1.25 hours for every contact hour of delivery, and otherwise entitled to be paid the Award rate for all non-contact hours worked. The hours the Claimant worked in each of those periods – taking into account that every contact hour of delivery amounted to 1.25 hours for pay purposes – and total gross wages he was paid were as follows:
Period
Hours Worked
Total Wages Paid (Gross)
24 July 2015 - 30 June 2016
1,286.13
$39,190.70
1 July 2016 - 23 July 2016
39.75
$1,120
24 July 2016 - 30 June 2017
1,151.95
$34,138.65
1 July 2017 - 23 July 2017
104.50
$2,940
24 July 2017 - 30 June 2018
1,649
$48,825
1 July 2018 - 23 July 2018
93.75
$2,625
24 July 2018 - 30 June 2019
1,308.10
$41,090.35
1 July 2019 - 23 July 2019
128.50
$3,958
24 July 2019 - 1 October 2019
592.41
$20,166.98
50 The pay the Claimant was entitled to receive under the Award for each period and the actual pay he received are as follows:
Period
Hours Worked
Award Rate
Entitlement Under Award
Actual Pay
24 July 2015 - 30 June 2016
1,286.13
$22.93
$29,490.96
$39,190.70
1 July 2016 - 23 July 2016
39.75
$23.48
$933.33
$1,120
24 July 2016 - 30 June 2017
1,151.95
$23.95
$27,589.20
$34,138.65
1 July 2017 - 23 July 2017
104.50
$24.74
$2,585.33
$2,940
24 July 2017 - 30 June 2018
1,649
$25.22
$41,587.78
$48,825
1 July 2018 - 23 July 2018
93.75
$26.11
$2,447.81
$2,625
24 July 2018 - 30 June 2019
1,308.10
$27.16
$35,528
$41,090.35
1 July 2019 - 23 July 2019
128.50
$27.98
$3,595.43
$3,958
24 July 2019 - 1 October 2019
592.41
$28.70
$17,002.17
$20,166.98
51 From these tables, it is abundantly clear that during the entire Period of Employment, the Respondent paid the Claimant at an hourly rate in excess ‘of 1/38th of the weekly rate prescribed for the class of work performed’. Clause 10.3(e) of the Award.
This is so, even taking into account the fact that contact hours of delivery were considered 1.25 hours of work for the purposes of wage payment.
52 The Claimant was not underpaid for ordinary hours worked, and any claim for underpayment is therefore dismissed.
‘Pre-Starts’
53 Pursuant to cl 21.3 of the Award, the multiplier of 1.25 is applicable to contact hours of delivery, ‘including administration, assessment and consultation’.
54 In the context of truck driver assessment and instruction, the pre-start is a form of administration. It is part of the necessary preparation before the employee truck driver is able to engage in a contact hour with a truck-driver student.
55 Unlike tutors and teachers in a university or other tertiary lecture-based environments, truck driving instructors and assessors have little assessment or preparation to do outside actual contact hours. They do not have to prepare detailed lecture plans and do not have essays to mark.
56 In my view, the ‘administration’ the Claimant performed was limited to the pre-starts. If the rate at which he was paid was equivalent to or exceeded the Award rate multiplied by 1.25, the effect is that he was paid in accordance with the Award for his work. His work was contact hours and associated administration. The associated administration took the form of pre-starts.
57 As illustrated above, the Claimant was at all times paid more than 1.25 times the applicable Award rate. He was therefore paid for his pre-starts, they being the administration associated with contact hours.
58 The Claimant’s claim that he was not paid for pre-starts is dismissed.
Superannuation
59 As there was no underpayment of wages and no ‘missed hours’ or ‘stand-downs’, there was no underpayment of superannuation.
60 The claim for superannuation is dismissed.
Public Holidays
61 The Claimant complains that he was not paid for enough hours on public holidays. The Claimant was certainly entitled to be paid for public holidays that fell on his usual working days.
62 As to this issue, I rely upon the Respondent’s analysis of its business records and identification of the hours paid to the Claimant for public holidays. I also note that the Claimant was paid on a pro rata basis, as he was a part-time employee.
63 I cannot identify any failure on the part of the Respondent to pay the Claimant for public holidays.
64 This aspect of the claim is dismissed.
Annual Leave
65 The Claimant claims that he was not paid the leave loading prescribed by the Award. Clause 25.3 of the Award provides:
During a period of annual leave an employee will receive a loading calculated on the rate of pay prescribed in clause 14—Minimum wages. Annual leave loading is payable on leave accrued on the following bases:
(a) employees who would have worked on day work only had they not been on leave—17.5% of their ordinary rate of pay; or
(b) employees who would have worked on shiftwork had they not been on leave— a loading of 17.5% of their ordinary rate of pay or the shift loading, whichever is the greater.
66 During the Period of Employment, the maximum hourly rate to which the Claimant could have been entitled under the Award during a period of annual leave was $28.70 plus 17.5%, i.e., $33.72.
67 The Claimant seemed to suggest that he should have been paid 17.5% on the payout of accrued but untaken annual leave when he resigned. That is incorrect. The Award provides that the loading is payable during a period of leave.
68 In any event, as a matter of arithmetic he was paid in excess of the loading, both when he was on annual leave, and on the hours paid out when he resigned. Consequently, this aspect of the claim is dismissed.
The All-Inclusive Rate
69 The Claimant was paid an ‘all-inclusive’ rate, ‘to compensate him for all and any entitlements arising out of his employment and the work he performed’. Exhibit R6 [12].

70 It is clear on the evidence that the agreement was that the hourly rate of $35 per hour (and $38 per hour from 3 July 2019 until the end of the Claimant’s employment) was intended to provide compensation for all work-related entitlements, and was not simply an allocation for ordinary time.
71 James Turner Roofing Pty Ltd v Peters [2003] WASCA 28 is authority for the proposition that where an employee is paid an ‘all-in’ rate, that rate of pay is applicable to all incidents of employment. Provided the rate is equivalent to or exceeds the applicable award rate, there can have been no breach of the award.
72 Distilling the relevant principles, Anderson J said [21]:
1. If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid for that work; then the whole of the amount paid can be credited against the award entitlement for the work whether it arises as ordinary time, overtime, weekend penalty rates or any other monetary entitlement under the award.
2. However, if the whole or any part of the payment is appropriated by the employer to a particular incident of employment the employer cannot later claim to have that payment applied in satisfaction of his obligation arising under some other incident of the employment. So a payment made specifically for ordinary time worked cannot be applied in satisfaction of an obligation to make a payment in respect to some other incident of employment such as overtime, holiday pay, clothing or the like even if the payment made for ordinary time was more than the amount due under the award in respect of that ordinary time.
3. Appropriation of a money payment to a particular incident of employment may be express or implied and may be by unilateral act of the employer debtor or by agreement express or implied.
4. A periodic sum paid to an employee as wages is prima facie an appropriation by the employer to all of the wages due for the period whether for ordinary time, overtime, weekend penalty rates or any other monetary entitlement in respect of the time worked. The sum is not deemed to be referable only to ordinary time worked unless specifically allocated to other obligations arising within the employer/employee relationship.
5. Each case depends on its own facts and is to be resolved according to general principles relating to contracts and to debtors and creditors.
73 I am satisfied that the Respondent, throughout its relationship with the Claimant, operated on the basis that the hourly rate paid to the Claimant constituted an ‘all-in rate’, as that term is discussed and explained in James Turner Roofing Pty Ltd v Peters – in other words, the Respondent never appropriated the whole or any part of its payments to the Claimant to a particular incident of employment.
74 On the basis of this finding, the question is simply whether the all-in rate actually paid did in fact, as a matter of arithmetic, cover all the money entitlements provided for in the Award. On the basis of the evidence, clearly it did.
Conclusion
75 At one point during his evidence, the Claimant likened himself to an Egyptian archaeologist. That comment neatly illustrates the fundamental flaw in the Claimant’s approach to this case. Fossicking enthusiastically for various methodologies and hypotheses to support a case, which is what the Claimant did, is not apt to produce a clear and logical case based in fact and law – which is what litigation requires.
76 In that context, I note the ever-increasing amounts of money sought by the Claimant over the life of the claim, and his admission that there was at least a 5% error rate in his own calculations. If the Claimant had a genuine claim, those amounts would have been based on solid ground and would have remained consistent.
Orders
77 The claim is dismissed.



E. O’DONNELL
INDUSTRIAL MAGISTRATE