2025 WAIRC 00947
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00947



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
ON THE PAPERS



DELIVERED
:
FRIDAY, 28 NOVEMBER 2025



FILE NO.
:
M 100 OF 2025



BETWEEN
:
WESLEY TAYLOR


CLAIMANT





AND





NEPTUNE MARINE AND TOWAGE (ACN: 677 447 371)


RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 (Cth) - Small Claim - claim for payment of accrued time off in lieu on termination of employment - whether time off in lieu is an 'amount payable' under s 323 of the Fair Work Act 2009 - whether claim discloses a cause of action - cause of action disclosed - matter permitted to proceed - directions issued
Legislation : Fair Work Act 2009 (Cth)
Cases referred
to in reasons: : Coote v Mainline Access Pty Ltd (No 3) [2019] FCCA 383; (2019) 344 FLR 1
Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705; (2021) 332 IR 387
Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107
Euro Car Parts Pty Ltd v Cannon [2024] FCA 828; (2024) 304 FCR 349
Wollermann v Fortrend Securities Pty Ltd [2025] FCA 103; (2025) 337 IR 457
Fair Work Ombudsman v Woolworths Group Limited [2025] FCA 1092
Result : Directions issued


REASONS FOR DECISION
1 The claimant, Mr Wesley Taylor, was employed by Neptune Marine and Towage Pty Ltd (NMT) as a Marine Superintendent until he resigned in July 2025. He commenced this small claim pursuant to s 548 of the Fair Work Act 2009 (Cth) (FW Act) alleging that NMT contravened s 323(1) of the FW Act ‘and general contract law’ by failing to pay accrued and unused time off in lieu (TOIL) when his employment ended.
2 In his Statement of Claim, Mr Taylor says he was employed by NMT under a written employment contract dated 24 October 2024. He notes that the contract did not incorporate any industrial instrument and made no provision for overtime or time off in lieu of overtime.
3 The contract, which is annexed to the claim, says:
13.1 Your hours of work are as outlined in Item 10 of Schedule 1.
13.2 You may be required to work reasonable additional hours beyond the hours described in Item 10 of Schedule 1 without additional payment or compensation. This may include evening, weekend work and public holidays.
…
14.2 The annual salary component of the [Total Remuneration Package] is set out at Item 11 of Schedule 1 and has been fixed and incorporates:
(a) the payments that may be due to You under an Industrial Instrument that may apply to Your employment, these payments include minimum rates of pay, all disability-related award allowances; penalty and shift work rates or loadings (including leave loadings), as applicable from time to time;
(b) compensation in respect of time worked regularly outside of ordinary hours of duty, and availability for work outside of ordinary hours, including work on evenings, weekends and public holidays.
4 The Statement of Claim says that although the contract was for a flyin, flyout roster of 14 days on, 14 days off (after an initial period of working in the Perth office, Monday  Friday), Mr Taylor worked for 28 consecutive days during February and March 2025, with no rostered days off, in addition to his 14 rostered days on. He says that NMT verbally instructed him to ‘accrue this time as TOIL instead of paying overtime or additional wages for these hours.’ Statement of Claim paragraph 3.

5 However, Mr Taylor did not take time off before his employment ended on 10 July 2025. No payment was made at the end of the employment in respect of the ‘accrued TOIL.’
6 Mr Taylor says the failure to pay for the overtime, or the accrued TOIL, constitutes a failure to pay wages for work performed, and is a breach of s 323(1) of the FW Act, and a breach of his contract.
7 The way that Mr Taylor articulated his claim gave rise to two initial concerns about whether a cause of action was disclosed. First, the Industrial Magistrates Court does not have jurisdiction to decide common law claims of breach of contract, as such. Second, s 323 is confined to ‘amounts payable to the employee in relation to the performance of work.’ FW Act s 323(1).
It was not clear that Mr Taylor’s claim related to amounts payable in relation to the performance of work, as it appeared to be framed as a claim for compensation for not having taken time off work without loss of pay, as had been agreed.
8 These issues were raised with Mr Taylor at a Directions Hearing on 16 October 2025. Mr Taylor confirmed that his claim is confined to a breach of s 323 of the FW Act, and is not in respect of a safety net contractual entitlement. In respect of the application of s 323 to the claim for TOIL, I ordered that Mr Taylor file written submissions to demonstrate he had an arguable case and that the claim ought not be dismissed summarily.
9 I have now received and considered Mr Taylor’s written submissions and NMT’s responsive written submissions. I am satisfied that Mr Taylor’s claim does disclose a cause of action.
10 Section 323 of the FW Act says:
Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
Note: This subsection is a civil remedy provision (see Part 4-1).
Note: Amounts referred to in this subsection include the following if they become payable during a relevant period:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) leave payments.
(2) The methods are as follows:
(a) cash;
(b) cheque, money order, postal order or similar order, payable to the employee;
(c) the use of an electronic funds transfer system to credit an account held by the employee;
(d) a method authorised under a modern award or an enterprise agreement.
(3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
Note: This subsection is a civil remedy provision (see Part 4-1).
11 Until recently, there has been some doubt whether there is ‘settled authority to the effect that an employer contravenes s 323(1) of the FW Act only because an employer, in breach of a term of a contract, fails to pay an employee for work done’: Coote v Mainline Access Pty Ltd (No 3) [2019] FCCA 383; (2019) 344 FLR 1 per Manousaridis J at [56]; see also Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705; (2021) 332 IR 387.
12 However, in Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107, Raper, Dowling and Longbottom JJ at [82] affirmed the approaches taken in Euro Car Parts Pty Ltd v Cannon [2024] FCA 828; (2024) 304 FCR 349 at [85] and Wollermann v Fortrend Securities Pty Ltd [2025] FCA 103; (2025) 337 IR 457 at [11] which interpreted s 323(1) more broadly and determined that it creates an independent obligation to pay amounts due under any instrument, including a contract, in full. At [82] the Full Court said:
In our view, the approaches in Euro Car and Wollermann are correct. The obligation arising under s 323(1) is plain on its words; it is for an employer to pay the employee amounts payable in relation to the performance of work in full (and in money, and at least monthly), except as provided by s 324. There is nothing in the text or context of s 323 that suggests that the obligation to pay “in full” depends on whether those amounts are disputed, or the extent to which an employer has given “genuine consideration” as to the amounts due to the employee. A review of the text, context and purpose of the provision reveals that it confronts the mischief of ensuring that employees are not paid in kind but in full and have certainty as to the frequency of payment. If the approach in Wilkinson were taken it would mean that s 323 would operate in a different way to all other civil penalty provisions in the Act which require strict compliance with payment obligations. That approach might also, when applied in cases where the employer disputes an amount payable to an employee under a modern award, have the effect of undermining the objective of the Act to provide a “guaranteed safety net” of minimum terms and conditions provided under modern awards: s 3(b). Of course, while the employer’s subjective view on the amount owing may be relevant to the assessment of any penalty, it is not relevant when determining a breach of s 323. (original emphasis)
13 Section 323 is therefore available in respect of amounts payable in relation to the performance of work pursuant to an employment contract.
14 It is not in dispute that Mr Taylor’s employment contract provided for remuneration by way of a salary, described as a Total Remuneration Package, or TRP. Nor is it in dispute that the contract did not make provision for payment of overtime rates for hours worked in excess of the ordinary hours of work referred to in the contract.
15 NMT does not dispute that there was a verbal agreement relating to TOIL for additional hours worked, but says that the agreement was limited to provision of time off equal to the additional hours worked. It denies that there was any obligation for it to pay wages for the overtime worked, as ‘overtime’. Responsive submissions paragraph 7.

16 As I understand it, NMT says that it agreed that Mr Taylor could, at a future time, take paid time off work equal to the additional hours he had worked. However, that agreement extinguished any entitlement to be paid overtime, and did not equate to an entitlement to be paid out accrued but untaken TOIL, on the termination of employment. It says an agreement or entitlement to TOIL is not an agreement or entitlement to payment in relation to the performance of work, but an exchange of a period of time off work, referable to hours previously worked, without loss of pay or impact on any leave accruals. Responsive submissions paragraph 10.

17 NMT therefore argues that it was never required to pay for the accrued but unused TOIL on the termination of the employment, and so there was no amount payable to Mr Taylor in relation to the performance of work, for the purpose of s 323.
18 However, Mr Taylor points out that the effect of NMT’s position is that no wages at all have been paid for the additional days worked. In other words, if TOIL is not honoured, for whatever reason, then there remains an unsatisfied entitlement to be paid for the additional work performed. NMT would be in breach of s 323 because s 323 requires wages to be paid in money, and not in kind, and because time off with the payment of money has not occurred, the wages required have not been paid.
19 Consistent with this theme, Mr Taylor’s claim states:
By not paying the claimant for the overtime hours worked (and by indefinitely deferring compensation via untaken TOIL), the respondent has contravened section 323 of the Fair Work Act, which prohibits withholding earned entitlements. Statement of Claim paragraph 5.

20 Mr Taylor’s claim could be characterised simply as a claim for remuneration for the additional hours worked in February and March 2025 for which he has not been remunerated. The reference in his claim to TOIL is something of a red herring. Had he taken time off while maintaining pay, the requirement for payment in relation to work performed would have been satisfied. The fact that TOIL was not taken before the employment ended means there is arguably an amount payable in relation to the additional work performed in February and March 2025.
21 This position appears to be supported by s 327 of the FW Act which provides that ‘anything given or provided by the employer contrary to paragraph 323(1)(b) and subsection 323(3) is taken never to have been given or provided to the employee.’
22 Whether overtime (or the value of the accrued and unused TOIL) is ‘payable’ depends on the terms of the employment contract, as varied or added to verbally. In Fair Work Ombudsman v Woolworths Group Ltd [2025] FCA 1092, Perram J said at [571]  [573]:
My reasoning was that s 323(1) requires the employer to pay amounts which are payable at least monthly (s 323(1)(a)), to do so in full (s 323(1)(a)) and to include in the payment loadings, overtime rates and penalty rates (note 2). Section 323(1) operates upon ‘amounts’ which it assumes are ‘payable’ and erects upon them a monetary obligation to pay those amounts in full and in cash by the methods specified in s 323(2). Further, Note 2 clarifies that amounts are to be paid in that manner if they become ‘payable during a relevant period’. The requirement imposed by s 323(1) for payable amounts to be paid in full was recognised and reiterated by the Full Court in the recent decision of Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 at [81] per Raper, Dowling and Longbottom JJ.
The point for present purposes is that s 323(1) operates on amounts which are already payable, regulating only the timing and manner of their payment. It is, therefore, to matters outside of s 323(1) that one must look to find legal rules which operate to make amounts ‘payable’ and therefore susceptible to being picked by s 323(1).
Usually, it will be the contract of employment or any relevant industrial instrument which makes wages payable in this sense. In some cases (and in this case), the contract and the Award can make the same sum ‘payable’ for the purposes of s 323(a). For example, Coles had a contractual obligation to pay monthly salary payments which arose by operation of the contract of employment. But it also had an obligation to pay the minimum wage under the Award. In that sense, the minimum wage component of its salary payments was ‘payable’ for the purposes of s 323(1) both under the contract of employment and the Award. The amount by which the salary exceeded the minimum wage was probably payable under the contract and not under the Award (although it is not necessary to reach a view about that).
23 The determinative issues in Mr Taylor’s claim are what were the terms of the employment contract concerning overtime worked by him, and how those terms are to be applied to the facts of the case.
24 It is clearly arguable that working 28 days consecutively over and above 14 rostered days is not ‘reasonable additional hours’ for the purpose of clause 13.2, and therefore they are not hours which Mr Taylor was required to work without compensation over and above the TRP.
25 Further, while clause 14.2 provides that the annual salary incorporates two categories of benefits which would otherwise be payable, it is not clear that the additional hours worked by Mr Taylor in February and March 2025 falls into either of those two categories:
a. As to ‘payments that may be due… under an industrial instrument’ the payments Mr Taylor seeks are not payments that would have been due under an industrial instrument.
b. As to ‘compensation in respect of time worked regularly outside of ordinary hours of duty, and availability for work outside of ordinary hours’ (emphasis added), this arguably applies to hours worked on rostered days, not the period of consecutive additional days worked which appears to have related to the start-up phase of operations, rather than a regular work pattern.
26 It is therefore arguable that the TRP did not satisfy Mr Taylor’s entitlements in relation to the time he was required to work in February and March 2025 outside his rostered work days. Accordingly, I am satisfied that Mr Taylor’s claim discloses an arguable cause of action under s 323.
27 When Mr Taylor commenced this claim, he elected to have the small claims procedure apply to the proceeding. Sections 548(1) and 548(1A) are relevant. They say:
(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2); and
(b) the order relates to an amount referred to in subsection (1A); and
(c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a) An amount that that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
28 Section 323 is a civil penalty provision listed in s 539 of Division 2 and is a provision in respect of which an employee has standing to apply to an eligible State or Territory Court for orders in relation to a contravention of it. FW Act s 539 10; s 540(1).
The Industrial Magistrates Court, being an eligible State or Territory court, is able to make an order for an employer to pay an amount to an employee if the court is satisfied that the employer was required to pay the amount under the FW Act or a fair work instrument, and the employer has contravened a civil remedy provision by failing to pay the amount. FW Act s 545(3).

29 Mr Taylor denies that his claim is for an amount that NMT was required to pay because of a safety net contractual entitlement or because of an entitlement arising under s 542(1). Mr Taylor was not an outworker, and so s 548(1A)(b) is inapplicable. Nor is the amount claimed by Mr Taylor payable under a fair work instrument.
30 NMT has objected to Mr Taylor’s claim being dealt with as a small claim under s 548 of the FW Act, on the basis that s 548 does not extend to amounts arising under ‘general contract law.’ Respondent’s Submissions paragraph 4(a).
In other words, NMT says the reference in s 548(1A) to an amount that an employer was required to pay ‘under this Act’ does not extend to an amount payable under a contract that is not a safety net contractual entitlement.
31 This jurisdictional argument has not been fully canvassed in the present show cause process. NMT has advised the Court that it reserves its right to press this jurisdictional objection.
32 Accordingly, as foreshadowed at the Directions Hearing on 16 October 2025, this matter will now be listed for a directions hearing and I will hear from the parties as to what programming ought to occur in light these reasons and the remaining dispute about jurisdiction.




R. COSENTINO
INDUSTRIAL MAGISTRATE