2025 WAIRC 00682
CONTRACTUAL BENEFIT CLAIM
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00682

CORAM
: COMMISSIONER T B WALKINGTON

HEARD
:
TUESDAY, 1 OCTOBER 2024, MONDAY, 30 SEPTEMBER 2024

DELIVERED : MONDAY, 11 AUGUST 2025

FILE NO. : B 67 OF 2023

BETWEEN
:
JESSICA MCCARTHY
Applicant

AND

MY FOODIE BOX LIMITED
Respondent

CatchWords : Industrial Law (WA) - Contractual benefits claim - Entitlements under contract of employment - Contractual Interpretation - Whether applicant's employment contract was varied - Contractual variation found - Reasonable additional hours - Payment of additional hours - Payment of time off in lieu - Unjust enrichment - Quantum meruit - Payment for balance of remaining notice period - Application dismissed in part
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)    
Result : Order for Balance of Notice Period Remaining
Application Dismissed
REPRESENTATION:

APPLICANT : MS J MCCARTHY
RESPONDENT : MS M HUGHES AND MR B HUGHES

Case(s) referred to in reasons:
Benge & Anor v Bluescope Steel (AIS) Pty Ltd (No.2) [2020] FCCA 515
B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Cantor Fitzgerald International v Callaghan & Ors (1999) 2 All ER 411
Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1
HotCopper Australia Ltd v Saab [2001] WAIRC 03827; (2001) 81 WAIG 2704
Levi Rohan v S&DH Enterprises PTY LTD [2023] WAIRC 00076; (2023) 103 WAIG 174
Roude v Helwani [2020] NSWCA 310
Simone Jade Stewart v Next Residential [2016] WAIRC 00756; (2016) 96 WAIG 1354
Wegener v The Trustee for Cottesloe Hotel Trust & the Trustee for Richmond Equity Fund [2022] WAIRC 00156; (2022) 102 WAIG 280




Reasons for Decision
1 On 21 November 2023, Ms Jessica McCarthy (the applicant) filed a claim to the Western Australian Industrial Relations Commission (the Commission) for contractual benefits against My Foodie Box Limited (the respondent), seeking orders for:
1) $12,307.44 payment in compensation for hours worked, when she says her contract was unilaterally reduced from full time to four days per week (full-time pay).
2) A payment of amount between $3,441.22 to $6,396.63 in compensation for unpaid overtime and time off in lieu (TOIL).
3) A payment of $6,153.72 being two-weeks’ salary for the notice period the applicant claims she is entitled to (notice period).
4) An unspecified amount for a redundancy payment based on full-time employment, not the reduced four-day work week (redundancy).
5) A payment of $2,469.58 being for annual leave entitlements based on full-time employment. (annual leave).
2 The respondent opposes the applicant’s claim and contends that they have paid the applicant all entitlements due under the contract of employment. The respondent says that the applicant agreed to reduce her working hours to part time and a four-day working week.
3 The respondent contends that the notice period and redundancy payment meet the National Employment Standard requirements and complied with the terms of the contract of employment.
4 In addition, the applicant claims an unspecified amount for hours worked beyond her contracted hours because she says the respondent was unjustly enriched. The applicant seeks an order calculated on the basis of quantum meruit.
Questions to decide
5 In claims made under s 29(1)(d) of the Industrial Relations Act 1979 for a benefit under a contract of employment, the applicant must be able to demonstrate the fact of a contractual term and the fact that the contractual benefit has been denied. That is, as set out in HotCopper Australia Ltd v Saab [2001] WAIRC 03827; (2001) 81 WAIG 2704 (HotCopper), the onus is on the applicant to establish an entitlement to a benefit and the applicant must establish that:
1) the applicant must be an ‘employee’ as defined under s 7 of the Industrial Relations Act 1979,
2) the benefit claimed must be a contractual benefit,
3) the benefit must not be one under an award or order of the Commission, and
4) the benefit must have been denied.
6 In relation to the applicant’s claims for payment of full-time pay, redundancy and annual leave benefits, they claim have been denied because the respondent’s calculations are based on part-time hours and not full-time hours, I must decide whether there was a contractual variation made between the parties to reduce the applicant’s hours of work.
7 In relation to the applicant’s claim for TOIL, the question is whether the terms of the contract provided an entitlement to the TOIL and payment for TOIL not taken and, if so, whether the applicant has satisfied the requirements for payment under the terms of the contract of employment for payment of any entitlements.
8 In addition, I must decide whether the Commission has the power to make an order calculated on the basis of quantum meruit for the work performed by the applicant.
Was the Employment Contract for Part-Time or Full-Time Hours of Work?
9 A variation of a contract is a change to the terms and obligations under the contract. A variation must be agreed between the parties and there must be consideration. The terms of the variation must be certain, complete and there must be an intention to vary the contract.
10 The applicant asserts that she is entitled to a payment calculated at full-time hours per week. The claim is for payment of $12,307.44 being for 7.6 hours per week for a period of 20 weeks during which she was paid for 30.4 hours per week and not for 38 hours per week.
11 The respondent opposes the claim and says that at the relevant time, the applicant’s contract of employment was for part-time hours being four days per week. The respondent says the applicant agreed to reduce her hours and remained on four days per week until her employment was terminated.
12 The respondent contends that the applicant also claims an overtime payment for those same hours and that this is effectively double dipping. The respondent’s evidence is that most of the applicant’s A payment requests including work undertaken on Friday’s were paid. The respondent says the requests for payment for time in lieu were made at the time of the termination of the applicant’s employment. The respondent declined to pay an equivalent amount for only two of the periods of time in lieu requested by the applicant.
13 The applicant submits that the respondent unilaterally varied her contract of employment by reducing her hours from full time to part time, a reduction of 7.6 hours per week. The applicant says that her contract of employment states that any variation to its terms must be agreed in writing. The applicant asserts that she did not agree in writing to reduce her hours of work and therefore, the variation to her working hours was not a valid variation to her contract of employment.
14 Both parties referred the Commission to a contract of employment for the role of Director of Product Development and Customer Experience dated 9 October 2021 (Employment Contract).
15 The Employment Contract states that the position is full time:
Dear Jess
It is with great pleasure That My Foodie Box Pty Ltd trading as My Foodie Box (“The Employer”) offers you the position of Director of Product Development and Customer Experience on a full-time basis.
I am delighted to confirm the following details:
1 Position
1.1 You will be appointed to the position of Director of Product Development and Customer Experience, reporting directly to the Managing Director or any other person directed by the Employer from time to time. The Employer may unilaterally change your title, duties, responsibilities, function, role accountability or reporting relationship at any time
1.2 Your employment will commence on Monday 6 December 2021 and your employment will continue unless terminated in accordance with the terms of this letter of appointment.
1.3 Your employment will be full time.
1.4 In addition to the hours set out above, you may also be required to work reasonable additional hours.
1.5 The duties of this position are set out in the attached position description. You will be required to perform these duties, and any other duties the employer may assign to you, having regard to your skills, training and experience.
16 The Employment Contract neither specifies the number of hours for ‘full time’ nor any number of hours to be regarded as ‘reasonable additional hours’.
17 Both parties agree that on 14 November 2022, the applicant and the Chief Executive Officer of the respondent met to discuss the need to reduce business expenditure. At this meeting, the applicant was requested to reduce her hours of work. The respondent says that the applicant agreed to reduce her working hours to four days a week and that her working days were Monday to Thursday. In cross-examination, the applicant confirmed that she had agreed to the reduction in her working hours to four days a week at that meeting.
18 Subsequently, the respondent emailed the applicant on 16 November 2022 (Exhibit R2):
Variation to Existing Employment Contract
Dear Jess
As a result of our discussions on 14th November 2022, the following change to your Individual Employment Agreement has been agreed:
• Existing clause from individual Employment Agreement dated 9th October 2021:
1.3. Your employment will be full-time.
Newly agreed clause:
1.3. Your employment will be part time (30.4 hours per week).
The agreed change detailed above will take effect from 14/11/22 and remain in effect until a mutually agreed date when the individual employment agreement will revert back to the existing clause from the temporary clause.
If you have any queries regarding the variation please contact Mai Hughes at mai@myfoodibox.com.au.
Otherwise, please add your signature below and return to Mai at mai@myfoodiebox.com.au as confirmation of your understanding and agreement to the variation to your individual Employment Agreement.
You can use an electronic signature or reply electronically with your agreement if you don’t have an electronic signature.
Yours sincerely

Mai Hughes
My Foodie Box
CEO & Co-Founder
………………………………………………………………………………………………………..
Employee Acknowledgement
Name: ……………………………..
Signature: …………………………………………… Date: …………………………..
In signing this acknowledgement, I confirm that I have read and fully understand the variation to my individual employment agreement in detailed in this letter and declare that it accurately reflects the variation agreed.
19 The applicant says that she did not receive this email and neither signed nor returned a signed copy of the email to the respondent. Neither party produced a signed copy of this email. The respondent submitted a copy of the email that confirmed it had been sent to the applicant through a digital mobile application utilised by the respondent to communicate with their employees.
20 The respondent submits that the applicant’s agreement to reduce hours is reflected by the applicant’s response to a request made by email on 28 November 2022 from the Executive Assistant (Exhibit R3):
Hi Team
Can you please reply to this email and let me know your working days moving forward? This is so that it can be easier for Mandy moving forward to do payroll.
Please let me know asap, and any issues just let me know.
21 On the same day, the applicant responded by reply email with ‘Mon to Thursday’ (Exhibit R3). The applicant says her response reflects that she needed to respond within a pay cycle, even though she did not consider the Employment Contract had been varied because it had not been formalised and agreed in writing.
22 On 5 December 2022, the respondent made an offer to the applicant for appointment to the position of Chief Marketing Officer and Head of Product Development (Exhibit R5):
Hi Jess
As discussed, please see attached your Letter of Offer for the position of CMO and Head of PD. We want to restructure the team at MBX as we have identified a gap and therefore some missing opportunities in Marketing. Your experience and skillset are not only an asset to the company, it also matches perfectly with the current needs of the business.
As always, I wanted to show my appreciation and recognition of your dedication, hard work, loyalty and commitment to My Foodie Box. I think with Sarah moving to lead the ops side of the business, you two will make a killer team.
Please see attached:
• Your letter of offer
• Job Guidelines
• What I am proposing for the new teams structure
Please let me know your thoughts.
We would be moving you back to full time effective immediately

Thank you
Mai
Mai Hughes Co-founder and CEO
23 The respondent offered the applicant a return to full-time hours with the change in position. The applicant acknowledged under cross-examination that she declined the respondent’s proposal she return to full-time hours.
24 The respondent submits that the applicant requested she remain part time until she returned from leave as she wanted additional time to organise her wedding.
25 The applicant agrees that she requested that consideration of the new position be deferred until after her return from leave.
26 However, despite this, the applicant says she continued to work full time on Mondays through to Fridays each week and she was working from home on Fridays.
27 There is no evidence before me that the applicant declined to agree to a change to the Employment Contract to reduce her hours of work and salary commensurately. There is no evidence before me that during the applicant’s employment, she protested the change in her hours. However, more than mere acceptance is required to show agreement to vary a contract of employment: Benge & Anor v Bluescope Steel (AIS) Pty Ltd (No.2) [2020] FCCA 515 (Benge).
28 I find that the applicant understood that the Employment Contract had been varied to a working week of four days because the evidence is that the applicant agreed to this change at the meeting on 14 November 2022.
29 In addition, the applicant made claims for time in lieu for hours worked on Fridays during the relevant period. I find the applicant must have considered she had worked additional hours beyond that of her agreed working hours being Monday to Thursday. I find that the applicant agreed for her salary to be reduced because the evidence is that when requested to confirm her hours for payroll purposes, she responded that her working hours were four days per week being Monday to Thursday.
30 Furthermore, the applicant declined the respondent’s proposal to return to full-time hours which clearly shows the applicant was working less than full-time hours.
31 The applicant refers to Wegener v The Trustee for Cottesloe Hotel Trust & the Trustee for Richmond Equity Fund [2022] WAIRC 00156; (2022) 102 WAIG 280 (Wegener) as authority for finding that there was not a contractual variation effected. The facts differ in Wegener from those in this matter. Critical to the finding in Wegener is that the employee did not agree to a variation in his contract to reduce his hours of work and he specifically protested the proposal to reduce his hours of work on several occasions. In this matter, there is no evidence before me that the applicant declined in agreeing to a reduction in her hours of work. On the contrary, the evidence is that the applicant did agree to the change.
32 The applicant submits that Benge is authority for her contention that the respondent was not able to unilaterally change the terms of her contract of employment. The facts in Benge are that, unlike in this matter, the employees clearly objected to the changes in the terms of their contracts of employment as implemented by their employer. At no time did the employees agree to the changes. In this matter, the applicant concedes she did agree to the changes in her hours of work and salary.
33 I find there was a variation to the Employment Contract made orally. The variation was certain, complete and there was consideration as the change affected both parties’ obligations.
Was the Variation Required to be in Writing?
34 The applicant argues that despite her oral agreement to reduce her hours of work, she is entitled to payment at the full-time rate because any reduction in hours from that set out in her contract of employment required a variation to be in writing, and this had not occurred.
35 The applicant refers the Commission to clause 27.1 of the Employment Contract:
27.1 This letter of appointment may only be varied by written agreement between parties except as otherwise provided for in this letter.
36 The requirement for a variation to be in writing was considered by the Federal Court of Australia in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 (GEC Marconi):
217 (2) The principal cases in this country dealing with non-compliance with contractually imposed written modification clauses are those dealing with claims to be paid for extra work or services rendered under contracts which require written orders or written agreements for such works or services: Liebe v Molloy (1906) 4 CLR 347; see generally, Halsbury's Laws of Australia, vol 3(2), 65-1145. The conclusions to be drawn from the cases in this category are that (i) notwithstanding the writing requirement, it is open to the parties by express oral agreement or by contract implied from conduct to impose further or different rights and obligations on each other from those contained in the original contract: Liebe v Molloy at 353-355; Commonwealth v Crothall Hospital Services (Aust) Ltd (1981) 54 FLR 439 at 448; or (ii) that one party may so induce or encourage the other's assumption on which it relies that the relevant formal requirements need not be complied with, as to be estopped from later setting up those requirements: Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251. The relevant principle, for present purposes, was stated concisely by Ellicott J in the Crothall Hospital case in the following terms (at 449):
It is open to the parties to a written contract to vary it. This may be done in writing or, except where the contract is required by law to be evidenced in writing, by oral agreement. The agreement to vary may be express or implied from 62 conduct.
(Emphasis added.) The common, often fatal, difficulty experienced by a party in seeking to make out a contract to vary has been the evidentiary one of proof of the contract itself: see Liebe v Molloy, above; Trimis v Mina, above at [64].
218 (3) For an alleged subsequent variation to be contractually effective notwithstanding non-compliance with the written modification requirement, it must itself otherwise satisfy the requirements of a valid contract, that is, “the terms of the arrangement must be certain, and … there must generally be real consideration for the agreement”: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 105; and see below, “Formation of a contract of variation”.
37 In Benge, the Federal Circuit Court of Australia (FCCA) citing the English Court of Appeal in Cantor Fitzgerald International v Callaghan & Ors (1999) 2 All ER 411, found that remuneration provided for in employment contracts is a fundamental term and a reduction in remuneration constituted a breach or repudiation of contract. In the matter before them, the FCCA found that the employees did not affirm or consent to any contract of employment that varied the terms, and their continued employment entitled them to the benefit that the employer had purported to remove. A reduction in remuneration requires affirmation and something more in law than acquiescence.
38 The evidence in this matter, unlike in Benge, shows the applicant agreed to the respondent’s proposed change in her hours of work and a corresponding decrease in remuneration on 14 November 2022. This was a variation of the Employment Contract agreed orally. That is, there was something more than acquiescence from the applicant. The applicant agreed to the change.
39 I note that the letter of variation to the existing contract confirming the discussion was settled by the respondent on 16 November 2022 and the respondent’s evidence is that it was sent to the applicant using a digital mobile application. The applicant says she did not receive this letter, and I cannot find on the evidence before me that the applicant did receive the letter. However, as set out in GEC Marconi above, this written confirmation or agreement is not required to effect a variation to the Employment Contract.
40 In addition, the applicant did not merely acquiesce to a decision or direction of the respondent. The evidence is that the applicant expressly agreed and confirmed the change on several occasions.
41 Applying GEC Marconi I find that, despite clause 27.1 of the Employment Contract, a variation did not require that the change be in writing if both the applicant and respondent agreed to the change and intended for the change to be contractual.
42 I find the Employment Contract was varied and consequently, the applicant’s hours of work were reduced to 30.4 hours per week and her salary was reduced commensurately. The applicant’s claim for payment equivalent to 7.6 hours per week for 20 weeks between 14 November 2022 and 4 April 2023 is dismissed.
Payment for Additional Hours
43 The applicant claims payment for 80.5 hours of overtime or additional hours worked that had been ‘logged’ with the respondent and payment for 117 hours of overtime or additional hours worked but not ‘logged’ with the respondent.
44 In relation to working additional hours, the Employment Contract expressly provides for several relevant terms:
Clause 5. Remuneration
Clause 5.3 Your base salary will be deposited on a fortnightly basis, in arrears, into your nominated bank account. Your base salary covers all and any overtime, penalty rates or allowances you may be otherwise entitled to under any industrial instrument.
Clause 6 Working Hours
Clause 6.1 My Foodie Box is a seven day a week business and you may be required to work during any of these operating hours.
Clause 6.2 Your remuneration package includes payment for all hours you work for My Foodie Box. You agree to work at the times reasonably necessary for the requirements of your role, which may vary from time-to-time. As you agree to work the hours reasonably necessary to meet business requirements, rather than only specified hours, you agree to your hours of work being averaged over each 12-month period.
45 The Employment Contract clearly expresses that the working hours may vary and there may be a requirement to work on any day of the week. Clause 6.2 expressly states that the remuneration package, being the salary, is payment for all hours worked. Clause 5.3 expressly states that the base salary includes payment for any overtime, penalty rates or allowances under an industrial instrument.
46 The evidence shows that there was a practice of submitting a request for TOIL and/or unpaid overtime. The respondent submitted an extract from their ‘Policies and Guidelines’ document that sets out how overtime and additional hours are to be treated:
D. Overtime and additional hours
Overtime is work which is performed at the direction of the manager and which is in excess of your contracted hours of work. If you cannot for some reason work reasonable additional or overtime hours you must notify your Manager as soon as practicable with the reasons as to why. To comply with record keeping and overtime compensation requirements, we need a smooth procedure. This is the procedure that My Foodie Box follows:
1. Team members and their managers should always agree on the hours of overtime needed. Overtime should not exceed any legal limits and employees shouldn't end up working excessive hours. Team members and their managers should also agree on the type of compensation they get (time-in-lieu or additional paid working hours),
3. Team members and managers accurately record overtime.
4. Finance calculates overtime pay according to legal pay rates
5. Team members receive their overtime compensation in the next scheduled pay period if it has been agreed that team members receive additional pay for their overtime. Should team members select to receive time-in-lieu for their overtime, the latter should be taken within 3 months of accruing the time-in-lieu.
47 For a practice or policy to be a denied contractual benefit, I must find that the practice or policy is imported or incorporated into a contract of employment. The Employment Contract refers to the policies of the respondent:
4. Terms and conditions of employment
4.1 My Foodie Box Policies and Procedures manual and the National Employment Standards combine to form your minimum conditions of employment.
4.2 Upon commencement you will be provided with a copy of My Foodie Box Policies & Procedures manual.
4.3 An overview of the National Employment Standards of the Fair Work Act 2009 is contained in our policies and procedures.
23. Policies and Procedures
23.1. In addition to the terms and conditions contained in this letter of appointment, there are other policies and procedures that apply to your employment. These policies and procedures are formulated by My Foodie Box for the efficient and fair administration of employment and other business matters. You must follow My Foodie Box's policies and procedures (as amended from time to time).
23.2. You are required to be familiar with the content of all such policies, and to comply with their terms at all times. Any failure to do so may result in disciplinary action up to and including termination of employment. If you are uncertain of where these polices are located or what obligations they impose, you have an express obligation to raise this with your manager. Your manager will then provide you with, or direct you to, the required information.
23.3. To the extent that the policies describe benefits and entitlements for the Employee or impose any obligations on the Employer, these are discretionary in nature and are not intended to be contractual. The terms and conditions of your employment that are intended to be contractual are set out in this contract.
23.4. My Foodie Box may unilaterally introduce, vary, remove or replace policies at any time during the course of your employment.
48 Clause 23.3 makes clear that any benefit or entitlement contained in a policy but not in the Employment Contract, is not a contractual term.
49 Given an implied term cannot be inconsistent with an express term, I cannot find the practice and/or policy concerning overtime and additional hours is implied into the contract as set out in B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 [283].
50 I find the compensation arrangements for working additional hours or overtime are not terms of the applicant’s contract of employment.
51 As set out in HotCopper, a claimed benefit or entitlement must be for a benefit under the contract of employment. As the claim for overtime and additional hours are not claims under a contractual term, this element of the applicant’s claim must fail.
Notice Payment
52 The applicant claims payment equivalent to two-weeks’ salary for notice of termination of employment. The applicant contends that the respondent provided only two-weeks’ notice when the respondent terminated her employment, whereas the terms of the Employment Contract entitle her to four-weeks’ notice.
53 The respondent contends that the notice period of two weeks has been paid in accordance with the requirements of the Fair Work Act 2009 (Cth) (FW Act). The respondent submits that it used the Fair Work Pay and Conditions Calculator Tool to calculate the termination payment.
54 The contractual entitlements and obligations between the parties concerning termination of employment and notice is found in clause 15 of the Employment Contract:
15. Termination of Employment
15.1. You will be engaged on a fortnightly basis terminable by the following table:
Employees Continuous Service Period of Notice
Less than 1 year 2 weeks
1 and less than 3 years 4 weeks*
3 and less than 5 years 5 weeks*
5 years and over 8 weeks*
*If you are over 45 years of age and have had at least 2 years continuous service, you will receive one (1) extra week notice.
55 The applicant worked for the respondent for a period of more than one year and less than three years. In these circumstances, the Employment Contract clearly provides for four-weeks’ payment on notice of termination.
56 Section 117 of the FW Act provides for the minimum notice that must be paid on termination. Employers and employees are free to agree on entitlements that are more beneficial to the employee and are above the statutory minimum.
57 In this matter, the applicant and the respondent agreed to a greater period of notice, being four weeks as reflected in clause 15 of the Employment Contract.
58 The applicant has already received two-weeks’ salary by way of notice paid in her final pay. Therefore, the denied benefit is the balance of the four weeks specified in the Employment Contract and is two-weeks’ pay.
59 I find that the benefit owed to the applicant is two weeks’ pay calculated on the four days per week, I will order the respondent pay the applicant the equivalent of two weeks’ pay being a payment of $6,153.72 gross.
Redundancy Payment
60 On 21 March 2023, the applicant was made redundant and paid out entitlements based on a contract of employment of four days per week.
61 The applicant claims that the respondent failed to pay the required redundancy payment. The application did not specify an amount nor the basis of the claim. However, the applicant’s claim is set out in an email to the respondent on 3 April 2023 when she emailed the respondent. With respect to the redundancy calculation rate, the email stated:
4 weeks redundancy pay.
This amount is correct, however, as discussed with you at the time you based this calculation on the 4 days a week that the business requested, in an effort to save costs. As we have discussed, I was consistently completing more than a FTE week due to the business requirements which I completed in good faith with the assumption that the business would track and compensate, also no contract was ever provided to me to formalise the 4 days a week as such my original contract of FT is currently still active and is what the calculation for my entitlements payouts should be calculated on.
62 I have understood the claim to be one for a payment for the equivalent of the difference between that calculated for five days per week and not four days per week. This claim I understand to be founded on the assertion that the Employment Contract was not validly varied.
63 The Employment Contract provides the following provision in respect of redundancy:
16. Redundancy
16.1. My Foodie Box will adhere to the National Employment Standards (as amended) at the time a redundancy is necessary.
64 Further, the Employment Contract refers to the National Employment Standards at Clause 4:
4. Terms and conditions of employment
4.1 My Foodie Box Policies and Procedures manual and the National Employment Standards combine to form your minimum conditions of employment.
65 Clause 4 of the Employment Contract merely states that the respondent will adhere to the National Employment Standards. This express term does not import the National Employment Standard provisions into the contract. Further, the express term merely notes that the respondent will comply with the National Employment Standards and that these will be the minimum.
66 This Commission lacks the necessary jurisdiction to enforce compliance with the National Employment Standards.
67 I have found that the Employment Contract was validly varied to reduce the applicant’s hours to four days per week.
68 The issues raised by the applicant related to her claim for working hours necessary to meet business requirements are addressed later in this decision.
69 The respondent has not denied the applicant a contractual benefit concerning redundancy and I will dismiss this element of the applicant’s claim.
Unjust Enrichment and Quantum Meruit
70 The applicant argues that she is entitled to be paid for the work performed. The applicant says she had understood that a reduction in working hours would have afforded her the opportunity to be able to attend to personal matters on Fridays, the day she was not rostered to work.
71 The applicant’s evidence is that several employees were terminated at the time the applicant was requested to reduce her hours. Other employees were also asked to reduce their working hours. The applicant says the work previously undertaken by these employees was distributed amongst remaining employees including herself. The applicant submits that her workload was not reduced and therefore she continued to work on Fridays, weekends and other days outside of business hours.
72 The applicant contends that the demands of the business operations frequently required her to work an additional 12 to 16 hours per week and submits that this situation was contrary to the initial agreement where overtime was expected to be minimal and reasonable.
73 The applicant submitted various email exchanges with other staff and the Chief Executive Officer to evidence that she had continued to work on Fridays and at other times.
74 The applicant says that some business processes required to her to work outside of her rostered hours and that her employer had knowledge or ought to have known of the hours the applicant was working and the hours required to complete the work.
75 The applicant claims that she worked beyond her contractual terms without receiving adequate compensation and refers to clause 6.2 of the Employment Contract. That is, the averaging of hours worked over a 12-month period. The applicant says that this is unlawful because the FW Act only permits hours to be averaged over a maximum period of 26 weeks.
76 On 27 March 2023, the applicant submitted a written request for payment of 80.5 hours previously submitted to the respondent as logged hours (Exhibit A19). On 3 April 2023, the applicant submitted a further written request for payment of an additional 65.2 hours worked for early starts undertaking ‘reconciliation’ and ‘covering CS’ (Exhibit A25). The letter dated 3 April 2023 also includes a statement ‘Based on this completed 117 hrs of additional hours’ and a summary of the components of the claim for payment of additional hours ‘3 weeks TOIL (based on 5 days)’ (Exhibit A25). It is not clear how the additional hours were calculated.
77 The respondent’s evidence is that some projects and business processes were ceased at the time of the reduction in staff employed and some remaining staff reduced their hours of work. The respondent says that the applicant was not directed to perform tasks outside of her hours of work. Further, the respondent says that the applicant worked on non-working days when she was not required and that this was a choice she made.
78 The respondent’s uncontested evidence is that the applicant was paid for $3,076.92 for 38 additional hours worked on 5 April 2023.
79 The Employment Contract at clause 6.2 provides for hours to be averaged over a 12-month period:
6.2 Your remuneration package includes payment for all hours you work for My Foodie Box. You agree to work at the times reasonably necessary for the requirements of your role, which may vary from time to time. As you agree to work the hours reasonably necessary to meet business requirements, rather than only certain specified hours, you agree to your hours of work being averaged over each 12 month period.
80 The parties agree that the applicant was not covered by an award. Therefore, s 64 of the FW Act applies:
64 Averaging of hours of work for award/agreement free employees
(1) An employer and an award/agreement free employee may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours over the specified period must not exceed:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee – the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
(2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
81 In Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162 at [336], the Federal Court of Australia considered the factors that may be utilised to decide whether hours of work are reasonable:
… [A]n employee may establish that he or she was required to work a certain number of hours if he or she gives evidence of the work he or she was directed by her employer to complete a task and the impossibility of completing it other than beyond ordinary working hours. However, whether there was such a requirement may depend upon other factors including, without being exhaustive, the employee's seniority and level of autonomy within the enterprise to set his or her own working hours and the terms of contract, relevant industrial instrument and any workplace guideline. …
82 Although, clause 6.2 of the Employment Contract is not compliant with s 64(1) of the FW Act, the applicant’s submissions do not address what this means for the terms of the Employment Contract. Even if I concluded that this clause was voided, being contrary to the FW Act, this does not trigger payments of overtime or TOIL.
83 The terms of the Employment Contract must contain a provision for payment of TOIL or overtime for the Commission to issue an order under s 29(1)(d).
84 Clause 6.2 of the Employment Contract provides for the applicant to undertake additional hours that are reasonable for the applicant’s role and reasonably necessary to meet business requirements. There is insufficient evidence before me to make a finding that any hours worked are additional to those reasonably necessary for the requirements of the applicant’s role, nor reasonably necessary to meet business requirements. There is insufficient evidence before me that enables the Commission to assess whether any additional hours worked were reasonable or not.
85 The applicant contends the respondent was unjustly enriched by her continued performance of her duties and taking up additional duties as a consequence of the reductions in staffing. The applicant submits that that the Commission ought to apply the principles of unjust enrichment and quantum meruit and refers to Roude v Helwani [2020] NSWCA 310 (Roude) in support of her claim.
86 Roude is a decision of the New South Wales Supreme Court concerning a builder’s claim for payment on a quantum meruit basis and whether the builder was required to lead evidence of the market rate for the work performed or whether the invoices submitted were sufficient. ‘Quantum meruit’ essentially means what is the reasonable value of services.
87 Importantly in Roude, there was no written contract between the parties. In this matter, the applicant’s contract of employment is written and for the claim to succeed, it is necessary to find a contractual term either expressly provided, or a term that is implied into the contract.
88 In Levi Rohan v S&DH Enterprises PTY LTD [2023] WAIRC 00076; (2023) 103 WAIG 174 (Rohan), the Full Bench considered the issue of a claim for unpaid reasonable remuneration in an application for a benefit under a contract pursuant to s 29(1)(d) of the Industrial Relations Act 1979 (WA).The Full Bench concluded that the Commission may apply quantum meruit to calculate the value of a remedy in circumstances where there is a benefit under a contractual term which has been denied:
[70] Despite the breadth of the meaning of ‘benefit’, which both the Full Bench and the Industrial Appeal Court have consistently adopted, and which includes in its ordinary meaning ‘anything that is for the good of a person or thing’, it is the case that a claim for a denied contractual benefit advanced under s 29(1)(b)(ii) must involve a benefit to which an employee is ‘entitled’ ‘under’ a contract of employment. To be ‘entitled’, in a contractual sense, to a benefit, means having a legal claim of right, in terms of enforceable legal rights and obligations: Perth Finishing College v Watts (1989) 69 WAIG 2307 per Sharkey P at 2313, citing Leontiades v F. T. Manfield Pty Ltd [1980] FCA 49; (1980) FLR 193; Industrial Relations Bureau v Hassan (1982) 2 IR 151 and Poulos v Waltons Stores (Interstate) Ltd [1986] FCA 159; (1986) 10 FCR 429. For a benefit as claimed, as an entitlement, to be advanced, it must be ‘under’ a contract of employment, in the sense that it must arise ‘by virtue of’, or ‘pursuant to’ (in the sense that the benefit is in accordance with or consequent and conformable to) the relevant contract: Perth Finishing College at 2315.
[74] It is difficult to see how a claim under s 29(1)(b)(ii), for a ‘reasonable sum’ or for ‘reasonable remuneration’, however it may be expressed, not anchored in a term of a contract of employment, and which now, as accepted on the leading authorities, has no connection with a contract as a quasi-contractual or implied contractual right, but which is a remedy at law more generally based on principles of unjust enrichment, and which relies for its possible success as in this case, on the impugning of a contract of employment or a part of it, could satisfy the statutory criteria under s 29(1)(b)(ii). Rather, it seems that the appellant’s claim at first instance in this respect was one involving stepping outside of the contract of employment and not attempting to enforce it, in the sense discussed in the cases above, but attempting to strike down its terms, to then provide a foundation for the relief he then claimed, as a consequence. This does not sit comfortably with the statutory scheme for the bringing of such claims under s 29(1)(b)(ii) of the Act (See also Delmere Holdings Pty Ltd v Green [2015] WASC 148 per Kenneth Martin J at [117] to [122], in a different statutory context).
[75] The situation may be different, for example, in a case where an employee brings a claim for a denied contractual benefit under s 29(1)(b)(ii), which is anchored in a term of the contract, which contract is either extant or no longer on foot. The employer disputes the claim on the ground that the relevant contractual provision is, on some basis, unenforceable, despite having received the benefit of the employee’s labour and skill during the period of the employment under the contract. It may be the case that in those circumstances, if the Commission found the relevant contract term to be unenforceable, it would be empowered, as a matter of equity and good conscience under s 26(1)(a) of the Act, and applying unjust enrichment principles, to grant a remedy, as part of enquiring into and dealing with the industrial matter under s 23(1) of the Act.
[76] The bringing of claims to recover contractual benefits is one thing. How the Commission deals with such claims under s 23(1), in terms of a remedy, having regard to the objects of the Act in s 6 and the terms of s 26(1)(a) and 26(2), would appear to be another matter. We apprehend that the decisions of the Court in HotCopper and Matthews in particular, are concerned principally with how the scope of the Commission’s statutory powers to ‘enquire into and deal with’ such industrial matters, may be applied, in the granting of a remedy. How the Commission, once a claim to recover an alleged denied contractual benefit is validly made, then determines the claim, is a matter for the Commission according to the facts and circumstances of the case, and opens the possibility of alternative remedies, where the claimed denied contractual benefit cannot be awarded in specie. This may involve the recovery of a debt, an award of damages in lieu of the benefit denied, or an award of a sum calculated on a quantum meruit. This is as long as the Commission, in granting a remedy, does no more than resolve the industrial controversy before it: Welsh (1982) 62 WAIG 2708 per O’Dea P at 2709.
89 Applying Rohan, the question to be first decided is whether the applicant’s contract of employment provided for payment of additional hours worked.
90 The applicant agrees that her contract of employment provides for an ‘all-inclusive salary’ which compensates her for all hours worked.
91 The applicant’s email to the respondent dated 3 April 2023 refers to the applicant’s assumption that the respondent would track all hours worked by the applicant and pay her for these hours (Exhibit A25).
92 Restitution claims for overtime and unjust enrichment are discussed in Irving M, The Contract of Employment (2nd Ed, 2019) 6.31:
…It is suggested that in any claim based on unjust enrichment for time worked the key issue is – what is the quantity of service required to earn the remuneration under the contract? It is suggested that the following taxonomy of possibilities may be apposite. First, when a contract specifies that the contractual rate covers all hours worked then no restitutionary claim arises, as the contract regulates the remuneration for ‘overtime’ hours. This contractual intent can be exhibited in various ways. One is to specify the remuneration is an ‘all in rate’ or includes an amount for any overtime. Another is a clause that stipulates the employee is dedicating all of his or her working time to the employer under the contract. Or possibly a clause that states ‘reasonable hours of overtime will be worked’ implicitly in exchange for the stated remuneration. Clauses of these types impliedly specify the employee is being paid the set remuneration for all of the service, not just for 38 hours per week.
93 The applicant’s assumption that the hours worked which were more than her agreed hours per week would be recompensed is not sufficient. This assumption was not founded on a term of the contract of employment agreed with the respondent.
94 The applicant has not met the first condition required to sustain a claim for compensation, that is a contractual term which has been denied, and the Commission lacks the necessary jurisdiction to make the order sought. As considered in Rohan, the applicant needs to point to a term of the Employment Contract to first establish a claim for payment of TOIL or hours in excess of those that are reasonable. Once this has been established, the Commission may apply quantum meruit to calculate the value of any payment owed to the applicant. The issues decided in Roude do not assist the applicant where the benefit under a term of the contract has not been established.
95 The applicant submits Simone Jade Stewart v Next Residential [2016] WAIRC 00756; (2016) 96 WAIG 1354 (Next Residential) in support of her contention that the salary clause fails to specify the entitlements which were offset. I understand that the applicant argues the contract is uncertain regarding the salary clause or the terms concerning hours of work.
96 In Next Residential, the applicant argues that the court ruled a broad undefined all-inclusive salary clause, was insufficient if it did not clearly outline how the employee’s entitlements were being accounted for. This matter concerns the question of whether the clause in the contract of employment ousted the employee’s entitlements under an award.
97 The Honourable Industrial Magistrate G. Cicchini found at [19]:
The requirement for specificity is crucial because a worker must be able to compare his or her annual salary to award entitlements so that the no disadvantage test can be properly considered.
98 Next Residential is not relevant to the considerations of the Commission in this matter. The applicant’s claim is not that the respondent offset an entitlement for overtime or additional hours arising under an award or another industrial instrument. The question to be decided in this matter does not entail the offset of one entitlement against another. The terms of the applicant’s contract of employment are that the applicant agreed to work additional hours for an ’all-inclusive’ salary.
99 The terms of the Employment Contract are clear and the remuneration is a salary paid fortnightly for all hours worked. The applicant’s contract of employment provides for a rate that covers all hours worked and is similar to the type of contractual term referred to in [92] above. The Employment Contract regulates the remuneration for any additional or ‘overtime’ hours worked. The contractual term is not uncertain.
100 Given the absence of a contractual term that entitles the applicant to payment, in addition to her salary, for all the hours worked, the applicant’s claim for a payment calculated on the basis of quantum meruit cannot succeed. I will dismiss this element of the claim.
Conclusion
101 For reasons set out above I will order the respondent pay the applicant two-weeks salary being $6,153.72 gross.